Reconsidering Indeterminate and Structured Sentencing by Michael Tonry Directors’ Message

T O EN F J TM U U.S. Department of Justice R ST A I P C E E D B O J C S Office of Justice Programs F A V M F O I N A C I J S R E BJ G O OJJ DP O F PR National Institute of Justice JUSTICE SENTENCING & CORRECTIONS Issues for the 21st Century September 1999 Papers From the Executive Sessions on Sentencing and Corrections No. 2 Reconsidering Indeterminate and Structured Sentencing by Michael Tonry Directors’ Message It is by now a commonplace that the number merican sentencing and corrections sentencing systems, and more than 30 retain of people under criminal justice supervision policies are in ferment. No longer is some form of indeterminate sentencing. The in this country has reached a record high. As A there anything that can be characterized numbers are imprecise because systems differ a result, the sentencing policies driving that as the American approach. Thirty years ago so greatly that reasonable people can disagree number, and the field of corrections, where there was. Every State, the Federal Government, over which label best characterizes a particu- the consequences are felt, have acquired an and the District of Columbia had an indeter- lar system. All jurisdictions are affected by unprecedented salience. It is a salience defined minate sentencing system in which legisla- recently enacted three-strikes, mandatory more by issues of magnitude, complexity, and tures set maximum authorized sentences minimum, or truth-in-sentencing laws. expense than by any consensus about future (and occasionally, but seldom, minimum sen- directions. tences); judges chose among imprisonment, Sentencing and corrections policies are frac- Are sentencing policies, as implemented through probation, and fines and set maximum sen- tured or fracturing. What look like monolithic correctional programs and practices, achieving tences; corrections officials had broad powers tough-on-crime policies in many jurisdictions their intended purposes? As expressed in the over good time and furloughs; parole boards are being undermined from within by new, movement to eliminate indeterminate senten- set release dates; and virtually all these deci- individualized programs and approaches. cing and limit judicial discretion, on the one sions were immune from review by appellate Many people, asked to characterize American hand, and to radically restructure our retribu- courts. The details varied, but the broad out- crime policies, might describe the unprece- tive system of justice, on the other, the purposes seem contradictory, rooted in conflicting lines were everywhere the same. dented and continuing expansion of jail and prison populations, the widely shared impulse values. The lack of consensus on where sentencing and corrections should be headed is In 1999, there is no standard approach. to lengthen sentences for violent offenders, thus no surprise. Some jurisdictions retain parole; some have the federally encouraged truth-in-sentencing abolished it. Most retain good time, but of movement that requires offenders to serve at Because sentencing and corrections policies lesser scope than in the past. A sizable minor- least 85 percent of nominal prison sentences, have such major consequences—for the ity have adopted some form of “structured the initiatives in many places to limit prisoners’ allocation of government resources and, more sentencing.” Eight or 9 operate “presump- opportunities and worsen their living condi- fundamentally and profoundly, for the quality of justice in this country and the safety of its tive” sentencing guidelines systems, another tions, and the reluctance of elected officials citizens—the National Institute of Justice and the 8 to 10 have “voluntary” guidelines, and to advance policies that an opponent might Corrections Program Office (CPO) of the Office 2 jurisdictions in 1 State have “mandatory” characterize as soft. of Justice Programs felt it opportune to explore guidelines. Five have statutory determinate them in depth. Through a series of Executive Sessions on Sentencing and Corrections, begun Research in Brief CONTINUED ... 2 Sentencing & Corrections Directors’ Message While there is no doubt widespread support ■ ■ ■ for policies primarily premised on retributive CONTINUED ... notions of deserved and required harsh pun- Sentencing and corrections ishments, that is neither the whole nor a in the United States at in 1998 and continuing through the year 2000, practitioners and scholars foremost in their consistent story. The burgeoning drug court century’s end movement, for example, is creating new field, representing a broad cross-section of ecause no single, widely shared vision of diversion opportunities for many thousands points of view, are being brought together to what sentencing and corrections should of offenders, and in some jurisdictions eligi- B find out if there is a better way to think about be about has emerged to replace indeterminate bility is being extended to increasingly serious the purposes, functions, and interdependence sentencing, any effort to describe “American of sentencing and corrections policies. offenses and offenders; increasing numbers sentencing and corrections policies” is bound of offenders who face mandatory prison We are fortunate in having secured the assis- to be oversimplified and inadequate. A com- sentences if convicted find themselves being tance of Michael Tonry, Sonosky Professor plicated classification might take several fac- diverted from prosecution altogether. In many of Law and Public Policy at the University of tors into account: Minnesota Law School, as project director. States, policies have been adopted that aim to divert many nonviolent offenders from prison One product of the sessions is this series of ■ The retention and scope of discretionary into community-based programs. Similarly— papers, commissioned by NIJ and the CPO as parole release. the basis for the discussions. Drawing on the though this has advanced less far—restorative ■ The retention and scope of good time. research and experience of the session partici- and community justice programs in many pants, the papers are intended to distill their places are moving toward dealing with ■ The existence and scope of prison adminis- judgments about the strengths and weaknesses increasingly serious crimes and offenders. trators’ authority to release prisoners on fur- of current practices and about the most prom- loughs, to house arrest, or to various kinds ising ideas for future developments. Creative and ambitious people in many places of partial and intermittent confinement. are trying new things. Drug courts are one The sessions were modeled on the executive example. Efforts to incorporate broad-based ■ The breadth of mandatory minimum, three- sessions on policing held in the 1980s and strikes, and truth-in-sentencing laws. 1990s under the sponsorship of NIJ and community participation into corrections pro- Harvard’s Kennedy School of Government. grams and policy setting are another. Efforts ■ The existence of sentencing guidelines and Those sessions played a role in conceptualizing to incorporate restorative and community ele- whether they (1) cover felonies and misde- community policing and spreading it. Whether ments in individual programs or on depart- meanors or felonies only; (2) cover all the current sessions and the papers based on mentwide, countywide, or statewide bases sentences or confinement only; (3) are pre- them will be instrumental in developing a new are still another. In Wisconsin and elsewhere, sumptive, voluntary, or mandatory and, if paradigm for sentencing and corrections, or practitioners are experimenting with new presumptive or mandatory, whether they are even whether they will generate broad-based forms of indeterminate “risk-based” sentenc- rigorously enforced by the appellate courts support for a particular model or strategy for ing. In many places, developments of the past as in the Federal system or loosely as in change, remains to be seen. It is our hope that decade—structured sentencing, recognition Pennsylvania. in the current environment of openness to new of victims’ interests, and expansion of com- ideas, the session papers will provoke community and intermediate punishments—are Once those distinctions are made—and they ment, promote further discussion and, taken being extended. understate the range of variation—there together, will constitute a basic resource docu- ment on sentencing and corrections policy would be no more than a few States in any In an effort to shed light on some of the com- issues that will prove useful to State and local category. policymakers. peting conceptions of sentencing and corrections in this country, this paper presents an The structure of sentencing Jeremy Travis overview of the state of indeterminate and and corrections in the States Director National Institute of Justice structured sentencing and examines argu- No one has attempted a survey of how U.S. Department of Justice ments for and against each approach. The American jurisdictions handle sentencing other two current conceptions of sentencing and corrections. For one thing, such a survey Larry Meachum Director and corrections—community/restorative and would be too complex. No conventional cate- Corrections Program Office risk-based—are discussed in two separate gories or labels encompass all the important U.S. Department of Justice policy briefs in this publication series. structural differences in the States’ sentencing and corrections systems. The Bureau of Justice Sentencing

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