II. Modern Sentencing Innovations
Although determinate sentencing innovations all share at least some of these core concerns, they have taken various forms, leaving some commentators to note that sentencing philosophy today lacks a strong, unifying organizational or policy-oriented goal structure (Tonry, 1996). Different jurisdictions have enacted different sentencing reforms, often without adequate concern for their overlap in application. A number of jurisdictions have abolished parole completely, while others have restricted its application in attempts to achieve greater predictability in punishment. Most jurisdictions have also established mechanisms for ensuring that offenders serve a fixed portion of their nominal sentence. Offenders can still earn “good time” credits, but this discount for good behavior is often capped at 15%, so offenders must serve at least 85% of their nominal sentence. These laws are referred to as “truth in sentencing” because they aim to increase the certainty and transparency of the actual time served by the offender. Both parole abolition and truth in sentencing were often enacted along with broader reform efforts designed to achieve additional goals of determinate sentencing. The three most prominent examples of these modern reforms are determinate sentencing laws, mandatory minimums, and sentencing guidelines.
A. Determinate Sentencing Laws
As early as the 1970s, a number of states, such as California, Illinois, Arizona, and Colorado, began experimenting with determinate sentencing systems based around statutorily defined penalties. These “determinate sentencing laws” shifted sentencing discretion from the judge to the state legislature. Rather than allow the judge to sentence offenders to broad, open-ended terms of incarceration, specific sentences or sometimes narrow sentence ranges were codified in the criminal statutes themselves. Although legal statutes already determined maximum penalties for most crimes, determinate sentencing laws narrowly focused the limits of judicial sentencing authority. In some states, like California, which still operates under this system, aggravating and mitigating sentences are also specified, but judges must provide explanation of the unusual circumstances that warrant these sentencing adjustments.
Determinate sentencing laws dramatically constrained the sentencing discretion of judges and shifted sentencing power to a new player in the justice system—the legislative body. Some of the complications and criticisms of this sentencing innovation revolve around the inherent complexity involved in determining fixed punishments for every possible crime. Because state punishment codes cover hundreds of different offenses, it can be very difficult to assign specific punishments to every offense. Moreover, determinate sentencing laws can make it difficult to account for the full range of offense characteristics that make some crimes more serious than others. Many judges felt disenfranchised after the enactment of determinate sentencing laws, and critics argue that these laws shift sentencing discretion to the prosecutor, who determines the charge of conviction in the case. Moreover, there is disagreement about the appropriateness of having politically elected bodies like state legislatures determine the legal parameters of appropriate punishments. Because legislative bodies are publicly elected, they may be particularly prone to short-term political influences surrounding crime and punishment. They also are unlikely to have the specialized expertise or necessary legal resources to effectively gauge appropriateness and proportionality in punishment.Although determinate sentencing laws hold the potential to promote statewide uniformity in sentencing, for these and other reasons they have only been selectively implemented in a limited number of states. However, they did help pave the road of sentencing reform for other innovations like mandatory minimums and sentencing guidelines.