6.3 Determinate Sentencing

Determinate Sentencing Approach

Under determinate sentencing, judges have little discretion in sentencing. The legislature sets specific parameters on the sentence (ex. 36 to 41 months), and the judge sets a fixed term of years (or months) within that time frame (ex. 38 months). Often, such sentencing laws allow the court to increase the term (beyond the given window) if it finds aggravating factors, and reduce the term (below the given window) if it finds mitigating factors. With determinate sentencing, the defendant knows immediately when he or she will be released. While determinate sentencing does not allow for parole, there may be some options for early release; namely, offenders may receive credit for time served while in pretrial detention, or “good time” credits for good behavior while incarcerated. The discretion that judges are allowed in initially setting the fixed term is what distinguishes determinate sentencing from definite sentencing.

As noted in the previous chapter, determinate sentencing grew largely out of growing disenchantment with indeterminate sentencing, and more broadly, the “rehabilitative ideal” in sentencing and incarceration. Multiple books and research papers published in the 1970s asserted that rehabilitative programs in prison simply weren’t working; moreover, indeterminate sentences created great disparities between offenders convicted of similar crimes, and further causes inmates unnecessary stress and anxiety. These critiques combined with growing concerns over crime, which were embraced by politicians promoting a “get tough” approach. Ironically, there is little evidence that the move toward determinate sentencing significantly improved sentencing inequities, or prisoner’ attitudes toward prison and their sentence. Yet this approach – in combination with “innovations” such as sentencing guidelines, mandatory minimums, and sentencing enhancements – continues to drive many states and federal sentencing.