Sentencing: Allocation of Authority

In the 1970s, a handful of states including Arizona, California, Colorado, Illinois, Indiana, and North Carolina modified their former indeterminate sentencing schemes to provide for greater specificity and certainty in authorized punishments as a mailer of statutory command. (Colorado reverted back to indeterminacy in the 1980s, while North Carolina went on to adopt sentencing guidelines in the 1990s.)

The best known statutory determinate sentencing plan is California's. In 1976 the state adopted, and still follows, a "multiple choice" approach under which most serious offenses carry three designated punishments. For example, the current provision concerning first-degree burglary specifies that the sentencing options for the offense include "imprisonment in the state prison for two, four, or six years" (California Penal Code, § 461). In a normal case, the trial judge is expected to impose the middle, or "presumptive," sentence laid out for each crime. As alternatives, the judge may select the "mitigated" or "aggravated" term, provided the judge can cite adequate reasons on the record. Although prison terms are subject to limited reduction at the discretion of corrections authorities, California's determinate sentencing legislation abolished the parole board's authority to decide release dates.

Figure 3 represents California's version of statutory determinacy. It indicates graphically that the legislature is an important discretionary actor in the California system when compared to legislatures in indeterminate systems. (Compare Figure 2.) Instead of writing capacious punishment options into the criminal code, as in indeterminate structures, the California legislature has chosen to be far more directive in its penalty prescriptions. In one sense, therefore, discretionary actors within the trial court system (the parties, probation officers, and trial judges) enjoy a restricted field of sentencing discretion vis-à-vis the legislature. On the other hand, California's abolition of parole release, plus statutory limitations on the release authority of corrections officials, ensure that the sentencing decisions made by the trial court working group will bear predictable relation to the final sentencing outcomes of particular cases. Much more so than in indeterminate sentencing systems, in other words, the sentences pronounced in courtrooms matter in California. Thus, in Figure 3, courtroom actors are represented as discretionary players with meaningful authority. As in most states, however, the California appellate courts exert modest authority over the propriety of sentences; a trial judge's sentence will not be overturned on appeal unless the appellate court finds an "abuse of discretion."

The theory behind California's determinate sentencing reform was that rehabilitative sentencing had proven a failure, and the legislature elected to pursue a new vision that "the purpose of imprisonment for crime is punishment." Further, the California legislature concluded that "the elimination of disparity and the provision of uniformity in sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion" (California Penal Code, § 1170). Consistent with these views, sentencing discretion is now concentrated at the "front end" of the discretionary chronology—in the legislature and court system. There is no perceived need to wait months and years for a determination of when offenders have become rehabilitated, so "back end" authorities are granted limited discretionary roles, or eliminated entirely, from the discretionary equation.

Other statutory determinate sentencing reforms of the 1970s, such as those still surviving in Arizona, Illinois, and Indiana, followed a somewhat different scheme from that in California. The criminal codes in such states were amended to set forth narrowed "ranges" of potential punishment for each offense, as opposed to the fixed integers in California law. Still, the overall plan was similar: Typically such statutes provide a "presumptive" range for ordinary cases, with the bookends of "aggravated" and "mitigated" ranges available for unusual circumstances. In addition, Arizona, Colorado (temporarily), Illinois, and Indiana joined California in the elimination of parole release. Thus, these states effectuated a net shift of sentencing discretion toward the "front end" of the decisionmaking chronology, quite similar to that shown in Figure 3 for the California system.

The defining strength and weakness of statutory determinate sentencing reforms is that they rely on legislatures to choose specific penalties (or narrowed ranges of penalties) for specific crimes. Jurisdiction-wide uniformity in sentencing can be promoted in this way, but state legislatures do not have the time or expertise to ponder exact punishments with care. Nor do legislatures have the attention span needed to monitor their sentencing systems in operation, and to make periodic adjustments in the matrices of presumptive sentences. Indeed, most jurisdictions that enacted statutory determinate laws have found that their legislators tend to pass crazy-quilt amendments over time. In addition, legislative determinacy has proven a weak tool to manage prison population growth. The prison population in states like California, Colorado, and North Carolina grew even more quickly under new determinate laws than before such sentencing reforms were instituted. In part, these developments can be attributed to changes in the political climates of the individual states, but they led many to conclude that legislative determinacy was too blunt an instrument for the administration of a statewide sentencing system. The reform impetus toward statutory determinacy appears to have run its course. No jurisdiction has adopted such a structure since 1980.