6.2. Indeterminate Sentencing

Indeterminate or Indefinite Sentencing Approach

For much of the twentieth century, statutes commonly allowed judges to sentence criminals to imprisonment for indeterminate periods. Under this indeterminate sentencing approach, judges sentenced the offender not to a specific period of time, but rather, to a time frame that was often quite broad (ex. 5 to 25 years). For an offender given an indeterminate prison sentence, release – at 5 years, 10 years, or any period short of the maximum sentence – was contingent upon getting paroled, or approved for release by a parole board which determined that the person was rehabilitated.

Because some offenders might rapidly show signs of reform, while others appeared resistant to change, indeterminate sentencing’s open-ended time frame was deemed optimal for allowing individual rehabilitation, no matter how quickly or slowly. In other words, an indeterminate sentence functioned almost like an individualized “treatment plan,” which was flexible to the needs of the offender. Moreover, the promise of release at the early end or minimum sentence was thought to function as an inmate incentive for “good behavior” and participation in rehabilitative programming. (In fact, the U.S. origins of parole date back to the 19th century, when Zebulon Brockway – warden of the Elmira Reformatory in New York – sought to motivate young inmates through a system of earned “marks.”)

Yet, skepticism around indeterminate sentencing began to brew in the late 20th century, with critics highlighting both its ineffectiveness, and potential for abuse. Indefinite sentences give tremendous discretion, and power, to judges, parole boards, and the prison officials who inform parole decisions. Inmates who were unpopular with correctional officers or wardens – due to their political beliefs, religion, or race – had little hope of a favorable parole recommendation. Moreover, as crime ticked upward in the late 1960s and 1970s, many began to wonder if indeterminate sentences reformed, or merely empowered, “unfixable” offenders. In many ways, the end of indeterminate sentencing signaled the origins of mass incarceration in the United States. While many states began to abandon indeterminate sentencing (in favor of determinate sentencing, cover in the next chapter) in the 1970s and 1980s, the federal government legally ended parole for federal prisoners in the 1984 Comprehensive Crime Control Act (CCCA). After the CCCA took effect in 1987, any individual sentenced to federal prison was required to serve at least 85% of their sentence, with (slightly) early release predicated upon the banking of “good time” – not parole.