What is Indeterminate Sentencing?
Indeterminate sentencing refers to a judicial sentence of an unspecified length of time, with a range of time or a minimum term of years stated in the sentence. It differs from determinate sentencing which is a fixed length of time, such as one year or ten years followed by parole. A common characteristic of indeterminate sentencing is that the convicted person must show rehabilitation and acquiesce to treatment before being released on parole.
The classic example involves sentencing for life imprisonment, which is deemed to be a sentence for the person’s natural life without possibility of parole. The idea is that if rehabilitation is effective, then the prisoner, who is serving an apparently unnecessary sentence of life, will be released on parole.
Some jurisdictions have a process by which an indeterminate sentence will automatically become a determinate sentence unless the convict is still deemed to be dangerous. For example, in Washington State, the one half of the indeterminate sentence not served becomes the determinate portion. For example, under the predecessor version of RCW 9 . 95.040, the person would serve the first six months (the "1/2 part") of the sentence, after which the judge, along with the state’s Department of Corrections (DOC), would review the convict’s history and make a determination whether the full sentence would be imposed or a lesser term of custody would be allowed to be served outside of custody. By state law, if the person was not dangerous enough to merit the full term of the indeterminate sentence, the remainder of the term became a determinate sentence.
The legal definition of "indeterminate sentence" is: "imprisonment for an indefinite period not exceeding one day short of life in cases of first degree murder and life imprisonment so long as the future dangerousness of the offender shall be considered." Webster’s New World College Dictionary, p. 704 (4th Ed. 1999). The term "minimum term" means: "In a sentence of multiple years, the term fixed by the trial court after sentence based on which the offender may become eligible for parole." The American Heritage Dictionary of Law (2d Ed. 2007)
The History and Development of Indeterminate Sentencing
Originating in the late 19th and early 20th centuries, indeterminate sentence law developed within the broader context of the prison reform movement in the U.S. and abroad. Prior to the 1867 statutory imposition of indeterminate sentences in New York, a fixed sentence of a certain period of years did not allow for correctional introduction of the parole system or a similar mechanism by which the offender could earn their release. Prisoners sentenced to a specific term of years, therefore, had little motivation to obey prison rules or to participate in rehabilitative programs, since their release from prison was essentially inevitable. Parole reform eliminated the problem of ‘time served,’ creating an incentive for good behavior while housed on a prison setting.
By the mid-1960’s, most states had enacted some form of indeterminate sentencing law – rendering it virtually universal by the time of the passing of the Uniform Corrections Act in 1986. The advantages and disadvantages of indeterminate sentences have been widely debated throughout its history. Within a public safety context, critics of indeterminate sentencing laws argued that this system erodes the deterrent value of punishment, since the judge has already determined "the amount of punishment… to be imposed, which might create an incentive for the defendant to act as if he expected to receive the entire sentence, rather than the lesser amount…" (Murphy 2007). In other words, the original sentence does not carry much weight if it is conceivably not going into effect. Proponents of indeterminate sentencing counter-argued that allowing for rehabilitation is in essence providing deterrence for future offenders.
The evolution from determinate to indeterminate sentencing however, has not always been smooth. Decisions on whether or not to allow for rehabilitation, including the determination of the appropriate level of confinement prior to release, evoked much political controversy in the late 1970s. Particularly in New York, which had one of the lowest incarceration rates in the 1950s and 60s with the adoption of widespread parole, the indeterminate sentence system became increasingly criticized. In 1978, Governor Hugh Carey pushed for a repeal of the indeterminate sentencing law in New York, citing opposition of police organizations and victims’ rights groups as one of the main reasoning behind his proposal. However, this push for repeal came at a time when crime rates were at their highest levels, and Carey’s bill eventually faltered under opposition from prisoner’s rights organizations. Careys’ bill came up again for repeal in 1987, where it was also defeated. This setback was countered however by the significant rise in parole reform commissions, who became active in their role of assessing early release. With an eye towards crime reduction and recidivism deterrence, most parole boards "legitimately focused on prisoners who had become model inmates, clearly demonstrated an understanding of the error of their ways, and recently demonstrated their rehabilitation through assimilation…" (Murphy 2007). Thus, in spite of these strong recommendation against parole release, many guilty offenders successfully re-entered society, where they would be more likely to commit another crime.
Today, there are still numerous proponents of the indeterminate sentencing law. In addition to the Cronnon v. Schaeffer decision, more states are beginning to adopt parole-compliance based policies which increase the level of rehabilitation incentive to reduce the length of stay and risk of recidivism in facilities. While these policies may come under similar political opposition as those of Hugh Carey, in a strengthened economy and with the increase of crime rates in the recent years, the indeterminate sentence law is regaining popularity for paroling authorities across the country.
How Indeterminate Sentences Operate
The law in Michigan, like many states, sets a minimum sentence that is a floor for the time that a defendant must serve in prison. An example is Michigan Compiled Laws Section § 769.12 that lays out the minimum sentences for various first degree felonies. For example, first-degree criminal sexual conduct (MTCL Section 750.520b(3)) has a minimum sentence of 25 years. This would be in the lower half of the sentencing guidelines range for a person with no prior record.
While the judicial system may speak with respect to sentences in years, the Department of Corrections does not. The Prison Department terms the length of time before parole eligibility as the "minimum". This is very counter-intuitive for most people who think that this means "minimum" of time in prison.
The time served until the minimum time for parole eligibility is decided by the prison sentencing guidelines. These are different than the sentencing guidelines used for convictions in the state courts. A prison sentence is calculated by looking at the nature of the felony conviction, the classified offense, and the prior history. There are two guidelines grids that are used to calculate the "minimum". The first grid is for felonies that have a maximum term of years. The second grid is for felonies with no maximum or more than 20 years.
In Michigan, the convicted felons are told what their "minimum" will be when they are sentenced. The trial judge does not have to follow the recommendation of the parole board but often does. That said, a convicted felon will often receive a lesser sentence than called for. The parole board schedules hearings to determine if the individual should be released early. If the parole board believes that it is safe to release a convicted felon, they will be released early on "parole".
Parole are a sort of release from prison early. A person on parole has to follow the rules of parole or they get sent back to prison to serve their "maximum". That’s why the minimum is called "parole eligibility". If parole is granted, then the individual is placed back in the community under the supervision of probation agents. They can be returned to prison if they follow the rules or they may follow the rules for just a couple of years. Some felons are disqualified from being released on parole.
If the person has served about two-thirds of their minimum time (known as "parole guideline expired status"), they may be released from prison by the prison warden without going through the parole board.
Pros and Cons of Indeterminate Sentencing
Many legal experts have praised the benefits of indeterminate sentences of incarceration. Their arguments focus primarily on the flexibility and freedom judges are given to craft sentences based on the specific circumstances in a particular case, rather than on the nature of the offense, which, they note, does not account for the often-complex human elements of mental illness, poverty and substance abuse.
"If you have an offense that has multiple variables – socioeconomic, mental health and substance abuse – you want to put it in the hands of the court to decide," explains Mark Rose, a San Francisco-based defense attorney with the Defense Research Institute and the National Association of Criminal Defense Lawyers. "It is very difficult to determine what would be sufficient punishment for someone with a tragic life who finally engages in criminal behavior after they’ve gone through all of that."
Missouri Judge Duane Benton, speaking at a panel sponsored by the Federal Sentencing Guidelines Organization at the Federal Bar Association’s annual meeting in Washington, D.C., last May, noted that indeterminate sentences allow him to promote the use of re-entry programs for inmates , something that he has personally witnessed benefit both offenders and society.
As superintendent of the South Dakota Women’s Prison, Judge Benjamin Simmons implemented an indeterminate sentencing scheme in the 1970s with the same philosophy. Simmons was quoted in the Sioux Falls Argus Leader as saying that the idea was to give women the opportunity to change their lives, and allow judges "to mandate treatment and make it stick."
On the other hand, leading national advocacy organizations like The Sentencing Project argue that the indeterminate sentencing system is unfair and racially biased.
"In some cases, the system affords a young man or woman to stand before a judge and explain away his or her crime; in others, the judge walks into the courtroom to find a defendant that he believes deserves the same amount of time as a sentenced criminal, but because of the sentencing loophole, he goes home while his or her counterpart goes to prison," the group says on its website.
"Put simply, the goal of equity has been placed on hold. Despite the acknowledged impact on arrest, prosecution, and conviction rates, the law currently allows a judge with discretion to ignore and even negate other components of the law."
Indeterminate Sentencing in Real Life
Indeterminate sentencing has intrigued lawmakers and public policy makers for ages. The genesis of such law is in Europe, dating back to the time of the Enlightenment. Although most philosophers and legal experts in the Eighteenth Century favored determinate sentencing, the concept of indeterminate sentencing was adopted as a correctional policy in the late 18th to early 19th centuries, and not without its association with the development of prisons. Massachusetts, in 1837, was the first state legislature to adopt an indeterminate sentence plan in its prison statutes, providing that a defendant would receive a maximum sentence of death or imprisonment, with the execution or incarceration to be determined by the Board of Prison Overseers in accordance with the good behavior of the prisoner.
As jurisdictions across the country began adopting these laws, Pennsylvania created the legislature’s first parole system to replace the pardon system, and to provide an opportunity for parole by the Governor, thus allowing for an indeterminate sentence for those convicted of capital offenses. In addition, the state recognized that life sentences do not lead to automatic parole opportunities, as life sentences do not have mandatory parole after a term of years. Rather, the state of Pennsylvania, with a life sentence, indicates eligibility for parole if the Board determines whether the offender is no longer a threat to public safety. The Board frequently relies on the testimony of the Department of Corrections ("DOC"), which provides many of the evaluations and assessment reports.
Under a recent Pennsylvania statute, the State Parole Board no longer requires a "positive recommendation" from DOC to parole a life-sentenced inmate. In other words, even if DOC advises against parole—typically based on the inmate’s release plan which envisions residential placement at a location deemed not dangerous, and the inmate’s criminal history—the Board has discretion to determine an inmate’s entitlement to parole. The statute further promotes indeterminate justice through two other methods: 1) maximum sentence imposed by the sentencing court on life-sentenced inmates will become a de facto minimum sentence; and, 2) a life-sentenced inmate must serve 30 years before they may become eligible for parole. Subsequent to this law being enacted, 15 life-sentenced inmates were paroled, while 20 inmates are anticipated to appear for consideration of parole in the 2024 year. If an inmate is paroled, he will remain on parole for life. If the parolee violates parole, rather than receive a new sentence via the consideration of a recommitment proceeding, the parolee will receive a new minimum sentence of 15 years.
This law, like other legislature addressing indeterminate sentences, creates an interesting policy impact to consideration of parole for juveniles who are incarcerated in the prison system with an indeterminate sentence. Act 33 of 2018 applies said indeterminate sentencing and parole system to juvenile offenders. Under this new law, previously sentenced juveniles who were previously not eligible to become parole eligible under the "juvenile lifer" law, are being re-sentenced on the basis that the maximum sentence imposed on any juvenile sentenced more than thirty years ago must become his or her de facto minimum sentence. The Juvenile Lifer Law was recently upheld by the Pennsylvania Supreme Court, and was subject of a prior blog post by my colleague, David Lindsay.
Current and Future Trends in Indeterminate Sentencing
For much of the last 50 years, consensus seems to have built among serious reformers that indeterminate sentencing has been mostly a "failure." Errors and disparities in parole release parameters meant that lengthy sentences were, in effect, life sentences, and parole systems were plagued by massive (if hard to quantify) overdetention as well as excessive discharge disparities (as noted, some persons serving an a life sentence may be eligible for release on parole well before death). Reforms of one kind or another did not change this, and, for example, the 2008 Second Chance Act, which required prisoners sentenced to 15 years or more have a parole hearing after 10 years, did little to alter the picture. And many states, including large ones have scrapped indeterminate sentencing altogether (e.g., Texas, Florida, Pennsylvania, and Louisiana, among those with the largest total prison populations). Many states have moved purely to determinate sentencing, and some states have continued the pre-sentence "parole" risk-assessments that once led to decisions to release some prisoners on parole rather than to "serve" their sentences, as if they were "flat" sentences. In a completely different reform direction, some indeterminate systems have embraced and expanded (some say to excess) the creation and use of determinate or "flat" minimum sentences and judges, administrative boards, and others have begun making risk-assessment valuations of public safety at the end of all manner of periods of confinement , from one or two days to a decade or more. These developments are now happening in an era where the political salience of what might be called "rehabilitation-friendly" policies have, if anything, gained strength, particularly in our harshest legal settings (i.e., the criminal justice system). Other traditional concerns connected to indeterminate sentencing, like over-reliance on parole conditions, have played second fiddle to longer and longer incarceration periods, even when some kind of "period of supervision" post-release has been imposed. This situation, especially in light of recent experience with large numbers of premature parole releases (California), provides an important opportunity for community supervision agents to develop more humane and effective post-release supervision practices and standards. And it speaks to the re-direction of policy away from parole and onto supervision standards. In this climate of failed policies and energy focused on the future of police and supervision practices, there is some hope that key stakeholders will realize that rehabilitative justice is decidedly better than punitive justice. Nevertheless, unless we want to see courts issue life sentences to those many offenders who commit property offenses or drug crimes, we must find ways to control the prison population with indeterminate sentences and other alternatives to incarceration. In conclusion, this essay has tried to demonstrate that indeterminate sentencing and parole release remain alive and well despite their many and significant discontents.