There are three sentencing systems: those featuring determinate‐sentencing statutes; those using indeterminate‐sentencing statutes; and those applying sentencing guidelines. Some overlap exists among the categories. For example, a mandatory sentence is considered a type of determinate sentence. Mandatory sentencing may be used in jurisdictions that also use indeterminate sentencing as well as in those that use sentencing guidelines.
Drafters of any sentencing law must grapple with the problem of sentencing disparities, inconsistencies in sentencing offenders in which those committing the same crime receive different sentences. Sentencing disparities are usually based on race, gender, region, or socioeconomic status. Within academic circles, a debate rages over the effects of race on sentencing. A recent review of 38 studies published since 1975 reports that many of the studies concluded that race had a direct effect on the in‐out decision (in other words, the decision concerning whether the offender should be punished in a penal institution or out in the community) and that this effect remained even after the inclusion of controls for prior record and crime seriousness.
Other researchers claim that race influences sentence severity indirectly through its effect on factors such as bail status, type of attorney, or type of disposition. Researchers have also found that the racial composition of the offender/victim pair may be a better predictor of sentence severity than the race of the offender. For instance, blacks who murder whites are more likely to be sentenced to death than blacks who murder blacks or than whites who murder blacks or whites. Racial and other kinds of sentencing disparities make a mockery of the principle of “equal justice under the law.”
Indeterminate sentencing is a system of sentencing in which a legislature establishes maximum and minimum terms for each crime and a judge makes a discretionary decision as to what the maximum and minimum sentences should be for each convicted offender. For those whose sentence is prison, a parole board determines the amount of time each inmate serves under correctional supervision.
The theory behind indeterminate‐sentencing statutes is rehabili‐tation—the sentence should meet the needs of the individual offender, and the offender should be locked up until there is evidence that he or she has been “cured.” In states with indeterminate sentencing, parole boards can release inmates once they have served the minimum part of their sentences. Good‐time laws further reduce the amount of time served. Good time reduces a portion of an offender's sentence for good behavior while in prison.
Benefits of sentence‐reduction programs, such as good‐time laws and early parole release, include promotion of discipline within prisons (because inmates are motivated to engage in good behavior in order to earn or avoid losing good time) and the reduction of prison overcrowding. Critics complain that most offenders are released from prison before serving their full sentences and that indeterminate sentences produce gross sentencing disparities because they allow judges too much discretion.
Disillusionment with rehabilitation in the 1970s led to the adoption of determinate‐sentencing laws.Determinate sentences require a fixed period of confinement, with possible reduction for parole. A legislature fixes the terms for particular crimes, thus taking away the sentencing discretion of judges. Under determinate sentencing, the judge still makes the decision of whether or not the offender goes to prison, but the decision as to the length of sentence is taken away from the judge. In some instances, inmates sentenced under determinate sentences are still eligible for parole after serving a portion of their terms.
Determinate sentences move power in the sentencing process from judges to prosecutors, increase the likelihood that offenders will be sent to prison, lengthen sentences, increase the proportion of sentences served in prison before release, and contribute to prison overcrowding. Determinate‐sentencing laws restrict the early release of prisoners and require offenders to serve a substantial portion of their sentences (usually 85 percent) before they can be released. The Violent Crime Control and Law Enforcement Act (1994) requires states that want to qualify for federal financial aid to change their laws so offenders serve at least 85 percent of their sentences.
All 50 states have mandatory‐sentencing laws for crimes such as drunk driving, committing a crime with a dangerous weapon, and selling drugs. Such laws deny judges their traditional powers of discretion. Judges can't reduce the term for offenses that carry prescribed mandatory‐minimum sentences, and they are restricted from imposing alternative sentences in the community. Mandatory‐sentencing laws enhance the power of prosecutors, who decide what charges to file against defendants, and they are popular with politicians because they make politicians appear tough to the public.
To get repeat offenders off the streets, over 25 states and the federal government have passed three‐strikes laws. These mandatory‐sentencing laws require long sentences of up to life in prison without parole following conviction for a third felony. Major drawbacks of three‐strikes laws include the incarceration of many nonviolent offenders who might be better dealt with through less costly community sanctions and the exacerbation of prison overcrowding. In addition, three‐strikes laws result in decreases in plea bargains and increases in trials, since defendants feel they have nothing to lose by going to trial. Other consequences include increasing jail overcrowding as three‐strike defendants awaiting trial occupy scarce jail space. Finally, the third, and final, strike can be a nonviolent offense (such as marijuana possession), producing a situation in which the maximum sentence of life imprisonment can be disproportionate to the offender's criminal history.
Because prosecutors and judges often get around them, mandatory minimums lack predictability and certainty. The U.S. Sentencing Commission reported in 1991 that 40 percent of the federal offenders whose crimes should have triggered mandatory‐minimum sentences were able to avoid these sentences. Prosecutors can avoid mandatory minimums by entering into certain kinds of plea bargains. Federal law, for example, allows prosecutors to ask for sentences below the mandatory minimum for defendants who cooperate by providing evidence against other criminals. The enactment of mandatory‐sentencing laws also has resulted in the government's having to spend millions of additional dollars to keep more offenders locked up longer.
By 1998, 17 states and the federal government had adopted sentencing guidelines. These guidelines shift sentencing power from state judges to legislators. To determine the proper sentence, judges follow a grid, which identifies what the proper sentence is for a person who has committed a specific crime and who has a certain criminal history score (based on the number and severity of prior criminal convictions). Congress passed the Federal Sentencing Guidelines Act in 1984, which eliminated parole for federal prisoners, limited early release from prison for good behavior, and curtailed the discretion of federal district court judges. Neither federal nor state judges can deviate from sentencing guidelines except when there are aggravating or mitigating circumstances that are not adequately covered in the guidelines. After making such departures from the guidelines, judges must justify them in writing.
Advantages of guidelines include an opportunity to reduce sentencing disparities, the potential for ensuring rationality in sentencing (for example, making sure that violent crimes are punished with the most severe penalties), and a chance to alleviate prison overcrowding by calibrating the guidelines in a way that reserves prison space for offenders who have committed serious crimes or who have a long history of criminal involvement.
But sentencing guidelines vary, and not all guidelines yield the same benefits. The federal sentencing guidelines, for example, have been subjected to sharp criticism. Lynn Branham, a research scientist at the University of Illinois, claims the federal guidelines are based on the assumption that incarceration is the only fitting punishment tough enough for offenders. Consequently, federal prisons are filled with nonviolent offenders, many of whom could be punished more cheaply and more effectively in community sanctions. Branham also points out that the federal guidelines were drafted without an appreciation that prison space is an expensive, limited resource. As a result, the federal prison population has exploded and taxpayers have been forced to carry the economic burden of building and maintaining the new prisons needed to accommodate the influx of prisoners.