A Look at The Key Considerations in Determinate Vs. Indeterminate Ruling and Overcrowded State and Federal Prisons in America

The recent switch back to determinate sentencing in the past thirty years has ultimately overcrowded America’s federal and state prison systems. Despite a substantial decline in crime rates since 1991, the number of people being imprisoned increased continuously until 2011 and the imprisonment rate until 2007. Prisons and jails in 1991 held 1,219,014 inmates. The rate was 481 per 100,000 population. By 2008, the number of inmates had almost doubled to 2,308,390. Both the numbers of people admitted to federal and state prisons, and held in them, substantially increased in 2013. (Tonry, 1997.)

Determinate sentencing has a specific number of years, no minimum or maximum. Whilst determinate sentencing was created to promote equality of sentencing, it does not always do so. Determinate sentencing and truth-in- sentencing have very limited discretionary/parole release. This laws are based on the justice model introduced by David Fogul and the concept of “just deserts,” offered by Andrew von Hirsh. These concepts are based on the similar approach that punishment is to be commensurate with the seriousness of the crime. (book) However, these “tough on crime” sentencing laws are what caused the current prison overcrowding dilemma in our nation. (Abadinsky, 2015.)

One goal of determinate sentencing is to rid the system of parole boards. However, parole and parole boards have proven to be helpful to the system. Parole release has been used for upholding prison discipline and decreasing prison overcrowding for years. As I stated before, parole stemmed from pardons issues by governors. This tactic was used when prisons became overcrowded before parole boards were created. During the period of indeterminate sentencing, parole agencies served as a “safety valve” for crowded prisons. When Texas prisons were overcrowded in the 1980s, Texas increased parole release. By 1983, roughly forty percent of inmates were released on parole after their first hearing. (Abadinsky, 2015)

Another pressing issue with determinate sentencing is prosecutorial discretion. The Sentencing Reform Act of 1984 abolished indeterminate sentencing and was intended to reduce sentence disparity and rid the system of parole release, but the discretion lost by judges was gained by prosecutors which resulted in longer prison terms and overcrowded prisons. Ronald Wright stated in his article Managing Prison Growth in North Carolina through Structured Sentencing, that “Legislativley mandated determinate sentencing has not proved to be a workable alternative to the traditional indeterminate system.” (Abadinksy,2015.)

Sentencing disparity has been another rising concern with the abolishment of parole boards and determinate sentencing. In the determinate sentencing scheme, the role of the parole board to decrease sentence disparity is ignored. Since one of the main functions of the parole board is to review the sentences of all state prisoners, it can act as a mediating factor. The state of Nebraska is a prime example. The parole board there functions as an “equalizer,” mediating between ninety-three prosecuting offices and multiple jurisdictions. (Abadinsky, 2015.)

Prisons are not constructed to house every offender ever given a prison sentence. Prison is meant to work like a circulation system. Unfortunately, the circulation system has come to halt. Politics have had an influence on prison sentence policy change and ultimately, overcrowded prisons. One theory suggests that high rates of incarceration in the United States and the overcrowding of U.S. prisons and jails result from decisions by policy makers to increase the use of prison sentences as well as the severity(Travis, Western, & Redburn, 2014). In 1982, when President Reagan declared the war on drugs, law enforcement, prosecutors, and judges alike began to treat drug offenses more seriously and this led to an increase in incarceration. (Javitze, 2009.)

Politicians who preach “tough on crime” statutes are to blame for prison overcrowding as well. “Clearly, parole was an easy target for those looking for political opportunities,” notes Barbara Krauth, and “ emotional appeal of an attack on the system that released criminals to the streets may have benefited some political careers more than if actually addressed any of the complex problems of criminal justice.” (Abadinksy, 2015.) Some have described sentencing reform as a “political football.” (Stansky, 1996.) Because of our nation’s democratic system of frequent legislative elections, widely dispersed governmental powers, and election of judges and prosecutors, law makers tend to be susceptible to public opinions about crime and can become vulnerable to pressures from the public and political opponents to quickly enact tough legislation (Javitze, 2009).

Indeterminate sentencing schemes are a much better alternative than determinate sentencing. Indeterminate sentencing usually involves a minimum and maximum, with the actual release determined by a parole board or the result of the accumulation of good time. This type of sentencing was first introduced in 1840 when Alexander Maconochie set out a philosophy of punishment based on reforming the individual criminal; the criminal was to be punished for the past and trained for the future. (Abadinsky, 2015.) In contrast to determinate sentencing, indeterminate sentencing is less likely either to permit premature release or to allow prolonged confinement beyond that needed to ensure the safety of society. (Slobogin, 2011).

Indeterminate sentencing focuses on a rehabilitative and reformative approach rather than a “just deserts” approach. Rehabilitative correctional programs cost more than a prison system that merely aims at unsparing punishment, but benefit society and the prisoners themselves more in the long run. Indeterminate sentencing requires regular evaluations and hearings, treatment teams, and means of rehabilitation in the community in addition to places of confinement. However, community programs are less expensive than institutions once they are established, and are better at reducing recidivism, thus better at reducing the overcrowded prison population (Slobogin, 2011.)

Indeterminate sentencing serves two important purposes: one being that indeterminate sentences and parole help to prepare prisoners for the outside world. “In the absence of discretionary release by a parole board, there is little, if any, pressure on prisoners to prepare for post release.” (Abadinsky, 2015.). The second being that this type of sentencing scheme protects the public from violent, habitual offenders while helping the nonviolent offenders gain opportunity in life. (Gault, 1921.)

Another benefit of indeterminate sentences and parole boards is that distinctions can be made between inmates deserving early release and those who do not. Assessments can be made to determine which inmates should be released before the expiration of their sentence and which inmates should be denied release. This type of discretion is allocated to parole boards, who evaluate inmates carefully and decide who stays and who goes. Parole boards stem from the power of governors to pardon selected criminals. In states who use determinate sentencing, a similar release function is carried out by prison officials using good time. Although, prison officials do not have the information, time, or expertise to make accurate release decisions. Indeterminate sentencing and parole allows for parole boards to make discretionary decisions based on their knowledge of the offenders, and also provides an incentive for prisoners to develop personals goals and become motivated to be law-abiding citizens. (Abadinsky, 2015.)

In conclusion, overcrowded prisons can be attributed to the use of determinate sentencing over indeterminate sentencing. Indeterminate sentencing offer the option of early release at the discretion of a parole board. While critics of indeterminate sentencing and parole boards claim that this discretionary decision should be left up to judges, parole boards are much better equipped to properly handle the release of offenders. Parole boards also provide support for inmates to prepare them for life on the outside. Without parole boards and a variety of other similar programs, there is little pressure on inmates to prepare for post-release life. This situation ultimately leads to higher recidivism rates, and finally, overcrowded prisons.