Until the 1980’s, federal courts utilized a sentencing system known as “indeterminate”, meaning that trial judges were able to sentence offenders using their own discretion. However, according to “Sentencing” (n.d.), an article on the Legal Information Institute website, research showed that under this sentencing system criminals were given widely disparate sentences for essentially similar crimes, according to the whim of individual judges. As a result, in 1984 the Comprehensive Crime Control Act of 1984 was passed by Congress. That legislation included the Sentencing Reform Act (SRA). To create a more uniform sentencing system, the SRA created a new agency of the Judicial Branch, known as the United States Sentencing Commission (USSC), which introduced the determinate sentencing system. Under this system, judges had to impose sentences that fell between minimum and maximum specified terms; i.e. removing much of the flexibility and discretionary powers previously afforded to the judges. According to the referenced article, the aim of the USSC was to make sure that the sentences passed were in proportion to the crime committed. Also to ensure that the punishment meted out acted as a deterrent and therefore to protect the public from that criminal re-offending. Finally, to see that offenders received any rehabilitating treatment or education needed.
This legislation has tended to increase the total prison populations because:
a) In many cases, judges cannot sentence offenders to a non-custodial measure (e.g. probation) if the mandatory punishment for the offence is a prison sentence, and
b) The SRA also reduces the possibility of prisoners being released early on parole.
Effect On Probation
According to “Probation And Parole” (n.d.), an article on the what-when-how website, there are (relatively-speaking) now more offenders on probation than there are either in prison or on parole. According to that article, the reason is that overcrowding in the prisons has forced the judicial system into opting for probation as an alternative, where legislation permits.
However, that situation has encouraged the introduction of a range of types of probation, some more restrictive and/or punitive than others. In addition to the “normal” form of probation, where an offender is assigned to an individual probation officer who may have a large caseload of (say) 200 offenders to monitor (and therefore can expend little effort on supervision and/or rehabilitation of any single one of them), other types of probation include:
Intensely supervised probation;
Confining the offender to his/her home;
Monitoring offenders by electronic means (tags);
Use of residential centers or halfway houses; and
Sentences split between prison and probation.
In some cases the above may also be combined with other imposed measures such as making restitution to their victims, compulsory employment/education, payment of costs, random urine testing, community service, or specialized classes and/or treatments, such as Alcoholics Anonymous. Some of these measures may also be applied to parolees. However, parole is much less likely as an option under determinate sentencing. Some states no longer have paroling authorities or supervision of parolees in the community. The majority of states do still have a parole system in place, but the “standard parole” model is utilized less and less. Instead, more intense post-prison supervision is provided, using some of the measures as described above for people on probation. According to “Probation And Parole”, nowadays “The goals of rehabilitation and reintegration have become less important, while crime control and deterrence have become more important.”
However, the same article casts doubts on the efficacy of the present and generally changed parole system, and suggests that the determinate sentencing system may not be working as well as it should. It suggests that whilst disparities in sentencing may be reduced and more criminals imprisoned, they are typically serving shorter terms in prison and, following release, may be just as likely to re-offend and be imprisoned once again.
Conclusions
It would seem from my research that the great majority of U.S. States have adopted the determinate sentencing system and that it is therefore very likely here to stay. However, from the earlier-referenced “Probation And Parole” article, it appears that there are mixed views with regard to whether a reduction in recidivism has been achieved as a consequence.
The same article reviews the research into the topic of the effectiveness of determinate sentencing and related issues, which it suggests is less than reliable on three principal counts:
1. The studies undertaken generally quote recidivism reduction percentages but do not specify what if anything they are comparing;
2. Recidivism percentages actually vary according to the “risk levels” of the participants in different probation and/or parole programs. For example, in programs dealing exclusively with “low risk” participants, recidivism may be as low as 5 percent, compared with the 30 or 40 percent quoted in some research;
3. “Recidivism” is not adequately defined. The term has come to mean re-offending, but statistics include those who may have committed only technical violations of their probation or parole. Thus figures published may well be misleading.
Summarizing, I have found the concept of determinate sentencing to be sound, as it avoids sentencing anomalies that could and indeed did occur when the personal whims of individual judges came into the equation, even though my research suggests that some flexibility still exists – especially in the case of lesser crimes where judges are now permitted to recommend alternatives such as the more intensive forms of probation mentioned earlier. However, whether recidivism is reduced as a consequence is yet to be proven.
References
Probation And Parole. (n.d.). what-when-how (In Depth Tutorials and Information). Retrieved from http://what-when-how.com/sociology/probation-and-parole/
Sentencing. (n.d.). The Legal Information Institute. Retrieved from http://www.law.cornell.edu/wex/sentencing
