Sentencing: Allocation of Authority

For most of the twentieth century, the indeterminate sentencing system was the dominant legal structure for punishment decisions in the United States. Through the 1940s, 1950s, and 1960s it was virtually the universal approach in this country, and remains (with adjustments here and there) the basic system followed by nearly half of the American states.

The original philosophy of indeterminate sentencing structures was that most criminals could be rehabilitated, and that this goal required an individualized inquiry into the life history, behavioral deficits, and "treatment" needs of each offender. In order to carry out an individualized program of "correction," legislatures granted judges unconstrained authority to impose punishments within a broad range of statutory options. It was not unusual, for example, for judges to have discretion to select any punishment (or none at all) within statutory maximum penalties as severe as ten, twenty, or thirty years in prison.

Figure 1

Broad judicial discretion was merely one facet of the case-specific paradigm of indeterminate sentencing. Figure 2 depicts some key features of the allocation of sentencing discretion in a typical indeterminate structure. At the systemic level only the legislature is shown in Figure 2, because traditional indeterminate systems had no sentencing commissions. Moreover, the oval depicting the legislature is shrunken in comparison with most of the other shapes on the diagram. This is meant to illustrate that legislatures play some role in defining punishment outcomes in an indeterminate system, but this role is limited generally to providing the outer boundaries of permissible sanctions. For many if not most serious crime categories in indeterminate systems, the statutorily authorized ceilings on punishment are far in excess of the sanctions most sentencing judges would normally dream of imposing. In this respect, the legislature has opted to make itself a marginal discretionary player as compared with downstream decisionmakers. And because, in traditional indeterminate systems, there is no entity such as a sentencing commission to share systemic discretion with the legislature, such jurisdictions are marked by the relative paucity of systemic oversight by anyone.

The defining feature of indeterminate sentencing structures is their diffusion of meaningful sentencing discretion across numerous actors at the case-specific level. Prosecutors most of the time enjoy unregulated charging discretion; plea bargains between the parties (sometimes including sentence bargains) can have sizable impact on punishment; probation officers, at least in some jurisdictions, make sentence recommendations that are highly influential with judges; the judges themselves usually have a boggling array of choices remaining open to them on the day of sentencing; and, following a judicially pronounced prison sentence, correctional officials and parole boards retain impressive powers to fix actual release dates. (However, in some jurisdictions, parole guidelines have been adopted, in an attempt to at least partially structure release decisions.)

The only case-specific actor without meaningful sentencing discretion in traditional indeterminate systems is the appellate judiciary. For reasons of historical practice, deference to trial courts, and caseload pressures, appellate courts almost universally have resisted responsibility to participate in sentencing outcomes in such systems. This state of affairs persisted despite a vigorous reform movement to inculcate "sentence review" in the 1950s and 1960s, and remains a stable feature of indeterminate systems today.

The abdication of systemic authority in indeterminate sentencing structures, and the concentration of sentencing discretion among case-specific actors, originally reflected a deliberate Figure 2 policy judgment that offender treatment could best be pursued on a case-by-case basis. The correctional process was expected to unfold slowly, as authorities monitored each criminal's progress toward rehabilitation. Parole boards, last in the chronology of case-specific actors, were charged with looking the offender in the eye, examining the full case history, and discerning when the magic moment of rehabilitation had finally arrived.

The most important question to be asked about indeterminate systems today is not whether their configurations of discretion are a fair reflection of an articulable plan. (They are.) Rather, the pertinent question is whether the plan itself is sufficiently sound to justify the bottom-heavy and diffuse allocations of decisionmaking power that characterize indeterminacy. For those who believe that uniformity of punishment is an important goal, or that systemwide policymaking should not be sacrificed wholly to ad hoc individualization, doubts about the wisdom of the indeterminate ideal have become pronounced. This perhaps is inevitable in a world that no longer believes in the widely achievable rehabilitation of offenders, yet continues to operate with the machinery of the damaged theory.