Sentencing

A. The Fall of the Rehabilitative Ideal

During colonial times, criminal sentencing in America was premised initially on retribution and then later on deterrence (Walker, 1998). By the late 1800s, however, sentencing in America had become thoroughly dominated by rehabilitation. The goal of criminal punishment was to reform the offender by altering the underlying causes of crime. In order to accomplish this, criminal sentences had to be sufficiently flexible to be individually tailored to the unique needs of particular offenders. This led to a system of punishment known as “indeterminate sentencing,” so named because the exact term of punishment was often uncertain. Sentences often involved wide ranges, with minimum and maximum terms that could stretch from a single day to life imprisonment. These broad sentence ranges provided maximum flexibility for determining when an offender had been rehabilitated and when he or she was therefore ready to be released back into society. Judges at sentencing would determine the broad ranges of punishment, and then release decisions would be made by prison authorities or parole boards, who exercised considerable discretion in determining the actual amount of time served. Although indeterminate sentencing was based on a rehabilitative philosophy of punishment that emphasized the unique individual needs of different offenders, it is important to note that often the programs implemented in prison to target those needs were poorly funded and administered (MacKenzie, 2001).

Inherent in the rehabilitative philosophy of indeterminate sentencing was an implicit trust that criminal justice officials were able to reform criminal offenders. The 1960s was a period of important social change, though, and during this time trust in the justice system began to be questioned for a variety of reasons. A number of important social movements coincided that raised questions about the effectiveness and fairness of indeterminate sentencing. As part of the larger civil rights movement, a due process revolution swept through the criminal justice system that emphasized the fair and equal treatment of offenders. Prison conditions in particular came under attack following dozens of high-profile prison riots, like the one at Attica, New York, in 1971 that left 33 prisoners and 10 hostages dead after a 4-day standoff with prison officials. Race riots, such as the infamous Watts Riots in Los Angeles in 1965, were also breaking out in several cities; this, combined with the counterculture youth movement and anti–Vietnam War sentiments, helped fuel a growing mistrust of government (LaFree, 1999). Importantly, this period of social discord coincided with a precipitous rise in crime, which some commentators attributed to sentencing leniency associated with the rehabilitative focus of punishment. Over the next 25 years, violent crime would increase threefold, helping to further fan the flames of criminal justice reform while placing the get-tough sentencing movement at the forefront of political discourse in the United States.

Criminological scholarship also contributed to the dramatic changes in criminal sentencing that were about to take place. In 1974, a group of researchers published a comprehensive evaluation of 231 correctional treatment programs and concluded that with few and isolated exceptions, “nothing works” in corrections (Lipton, Martinson, &Wilks, 1975). Known as the Martinson report, this study became a sounding board for criminal justice pundits and reform-minded politicians bent on change, despite the fact that its conclusions were taken out of context and heavily criticized by some. If rehabilitation was ineffective, something else was needed to take its place. Both conservative and liberal scholars lobbied for change, although for different reasons. Conservatives argued that rising crime rates were the product of undue sentencing leniency associated with the rehabilitative ideal of indeterminate sentencing. They argued for a return to more punitive times, limiting the ability of court and correctional agents to mitigate punishments, and placing greater emphasis on law and order. James Q. Wilson (1975), among others, argued for a shift in punitive philosophy toward a crime control model that would emphasize deterrence and incapacitation rather than rehabilitation. Liberal scholars, on the other hand, began questioning the unbridled discretion of judges in the sentencing process. They argued that inordinate discretion led to inequities in punishment, with preferential treatment reserved for higher-status offenders. Most famously, a Columbia law professor and federal judge named Marvin Frankel (1973) wrote a scathing critique of indeterminate sentencing in which he criticized the facts that judges were not required to provide any reasons or rationale for their sentences; their sentences were not subject to systematic oversight or review; and they lacked the training and guidance necessary to achieve uniform, fair, and just sentences. The unfettered discretion of judges under indeterminate sentencing, in his words, was “terrifying and intolerable for a society that professes devotion to the rule of law” (p. 5).

During the 1970s, then, bipartisan support emerged for wholesale change in criminal sentencing, with conservatives wanting to increase the severity of punishments and liberals wanting to curtail excessive judicial discretion. Coupled with rising crime rates and increasing distrust of government institutions, this unusual political alliance led to dramatic and unprecedented changes in criminal sentencing in America (MacKenzie, 2001).

B. The Determinate Sentencing Revolution

Although a number of states still operate under indeterminate sentencing systems, a distinct shift in sentencing has occurred that has fundamentally altered the modern landscape of criminal sentencing in America. The abandonment of rehabilitation as the core punishment rationale in sentencing left a sharp and unexpected void in terms of both punitive philosophy and public policy. The solution that emerged, in part, was reliance on a new “justice model” of punishment in which the goal of sentencing would be certain, severe, and proportional punishments rather than individual reformation. This was in effect a return to classical ideas rooted in the retributive ideal. The justification for sentencing under this new regime would emphasize “just deserts”—or deserved justice—where the goal of sentencing was to fit the punishment to the offense rather than the offender. Under this new philosophy of punishment, uniformity would replace individualization in sentencing as the paradigm regnant. This philosophical change was at the heart of a larger structural shift toward determinate sentencing. Because rehabilitation was no longer the goal of punishment, there was no reason to sentence offenders to indefinite terms of incarceration; relatively fixed and equal sentences based on the severity of the crime and the prior criminal record of the offender became preferable.

Although determinate sentencing takes many forms, its core definitional requirement is the limiting of case-based discretion by judges and parole officials in sentencing. Under determinate sentencing, broad and uncertain sentencing ranges would be replaced by specific punishments that would be matched to specific crimes. Under this system, parole boards would no longer be necessary. Although determinate sentencing reforms have taken various forms, they all share a concern over replacing the rehabilitative ideal with a new set of sentencing considerations emphasizing greater uniformity, neutrality, certainty, predictability, and severity in punishment. The goal of uniformity in punishment arose out of concerns that unfettered judicial discretion was resulting in wildly disparate punishments for similar offenders. Reforms that emphasize uniformity attempt to ensure that similar cases committed by similar offenders receive equivalent punishments. Similarly, neutrality in punishment means that the law is applied in ways that are not systematically biased against particular classes of offender, such as racial minorities in society. Reforms targeting increased certainty and predictability in punishment place stricter constraints on the amount of time served by offenders. Under indeterminate sentencing, time served was typically much less than the nominal sentence because offenders were eligible for parole release after serving as little as one third of their sentence. The actual term of imprisonment was uncertain and unpredictable, and two sentences of equal length could result in different terms of actual incarceration. Finally, severity of punishment, as a goal of sentencing reform, emerged largely out of the law-and-order movement that attributed rising crime and societal discord to unwarranted leniency in sentencing. An important element in the shift to determinate punishments, then, was an increase in severity of sentences, at least for certain classes of crime like drug and violent offenses.

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