10.8: Basic Sentencing Strategies

Basic Sentencing Strategies

Sentencing strategies are models that were developed by legislative bodies in order to help determine the appropriate sanctions for criminal behavior. The development of the sentencing strategies often means that the discretion of the judge is limited by the decisions made previously by legislative lawmakers who may have no professional experience themselves in criminal law. There are five basic sentencing strategies used by various states. The strategies are: indeterminate sentencing, determinate sentencing, structured sentencing, mandatory minimums, and habitual criminal statutes.

Indeterminate Sentencing

An example of an indeterminate sentence might be “2 to 10 years in prison.” The philosophy behind indeterminate sentencing is that the sentence should be based on the treatment philosophy and so the sentence will vary depending on the particular offender. Because the system recognizes that the offender will eventually be released from prison and return to society the wish is that the convicted individual will focus on self improvement. As a way to motivate the individual the judge will give a range for the sentence which includes a minimum and a maximum; while the actual length of the sentence will be determined by prison officials later as we judge the inmates progress towards rehabilitation and improving their behavior.

So in our example, the inmate would serve a minimum of two years in prison but if they were well behaved while in prison and they took advantage of any prison programs available in order to improve their skills and education they may be out very near the two-year mark. However, if the inmate was caught smuggling in contraband or getting into fights and so on then they would have to stay in the institution longer but not over the 10 years which was set by the judge.

Whether the judge set the minimum sentence or perhaps there was a minimum sentence written into the law and the judge set the maximum sentence, the actual length of the sentence will be determined by prison officials once the minimum sentence has been served. This concept is behind the idea of “good behavior” time, wherein an inmate will reduce their sentence for having good behavior in the institution. If the inmate is released early they will still have supervision by a parole officer in the community. This is still the dominant form of sentence used in the United States.

Determinate Sentencing

An example of a determinate sentence might be 10 years, 11 months, and one day. In this example the sentence is very specific and very determined. With this type of sentence the judge would need to consider if there was any mandatory minimum sentence required by law as well as an understanding of what the maximum sentence passed by the legislature into law for the particular offense is. The judge could then select any sentencing term that meets or exceeds the minimum sentence and also does not exceed any maximum sentence established by law.

Once the convicted individual serves the entire sentence, then the prisoner is simply released. There is no continued supervision in the community. Also, there is no discretion exercised by officials in the prison to let the inmate out earlier, as the length of the sentence was determined exactly on the day of sentencing.

This broad range of discretion by each judge may result in significant sentencing disparity or different sentence lengths for similar offenses. Additionally, from a treatment perspective it may be possible that the inmate is not ready to be released, for how could the judge have known more than a decade before, exactly when the inmate should get out. It is also possible that the inmate was ready to be released far earlier into their sentence but since prison officials who work with the inmate have no say in the sentence, the inmate would stay in prison at taxpayer expense anyway for the remainder of their sentence.

Structured Sentencing

With structured sentencing the legislature rather than judges develop a grid or guideline of all sentences in advance. This guideline or structured sentencing sets both a minimum and a maximum sentence within each cell of the grid. The judge is to find the appropriate place in the grid follow the sentence that is listed. If the judge wishes to deviate from the sentence set by the legislature they need to justify such a deviation. The judge may consider aggravating circumstances that are different from the usual crime in making an argument to sentence more harshly than the guidelines. The judge may also consider mitigating circumstances in order to sentence less harshly than what is stated in the guidelines. This system greatly diminishes the discretion that could be used by judges and it also diminishes the discretion used by prison officials since discretionary parole is abolished.

The grid was developed with two axes. In developing the grid each crime is placed into a severity category and this ranking of severity of crimes is one axis. The criminal being sentenced is also placed into a category based on any previous criminal history that they may have. The criminal history is given a score and his range of scores is the other axis. The judge merely needs to look at the chart and find the right crime category and then follow that row along until we find the right criminal history score. Once they find the right cell in the grid they look at the sentence listed and pick something within the range that is listed. The judge then states a determinate sentence and it is that sentence which is then served.

Mandatory Sentences

Some legislatures have decided that in their jurisdiction certain crimes are punishable by prison and are not eligible to stay in the community on probation. This mandatory sentence to prison will be one of the factors influencing the judge’s sentencing decision. Some legislatures have decided to add a mandatory number of years onto a sentence given by a judge. For instance, if a firearm is used during the commission of a felony in some jurisdictions an additional two years is tacked onto the judges’ sentence. So a sentence of five years in prison would become a sentenced to seven years in prison if a firearm had been used.

Habitual Criminal Sentencing

This form of sentencing was designed to deal with chronic and habitual offenders by enhancing the punishment for any particular crime if the offender had committed a certain number of felonies previously. With this form of sentencing you do not just look at the crime and the offender but you look at how many times the offender has previously committed a serious crime. At some point the sentencing needs to become much more severe is the theory. The three strike rule is an example of this form of sentencing wherein the punishment will be more severe during the third time that the offender appears in court for a felony.

Some studies predicted that this form of sentencing may reduce serious felonies but other studies indicate that so far it is not having the desired effects. In some instances individuals are receiving severe sentences for somewhat minor violations but since it is their third time in court the sentence is severe.