Adoption and Implementation of Determinate-Based Sanctioning Policies - A Critical Pespective

• NCJ Number: 91922
• Journal: Georgia Law Review Volume: 17 Issue: 2 Dated: (Winter 1983) Pages: 425-464
• Author(s): G Cavender; M C Musheno
• Date Published: 1983
• Length: 40 pages
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: An earlier version of this article was presented to the American Society of Criminology in Washington, D.C., in November, 1981.

Annotation

Determinate sentencing is more a symbolic than an actual reform because it fails to provide resources for implementation, is contradictory to current penal trends, and is checked by court decisions demanding rapid improvement in prison conditions.

Abstract

Sentencing policy was based primarily on retribution until the 18th century when deterrence became popular, reflecting shifts in views about behavior, changes in socioeconomic structures, and dissatisfaction with the retributive penal system. Faith in deterrence began to wane by the 1820's with correctional administration difficulties, crime increases, and new social problems created by more socioeconomic upheavals. The transition to a sentencing policy based on rehabilitation occurred later in the century and was characterized by the indeterminate sentence, an emphasis on individual circumstances, and a view of corrections personnel as treatment specialists rather than custodians. Opposition to rehabilitation in the late 19th and early 20th centuries took the form of legal challenges to the indeterminate sentence and early release via parole. Recent critics have claimed that rehabilitation failed to control crime, produced practical and legal problems such as sentencing disparities, and created philosophical dilemmas concerning the legitimacy of sanctions administered for rehabilitative purposes. Alternatives to rehabilitation broadly categorized as determinate sentencing include presumptive sentencing, definite sentences, sentencing guidelines, and mandatory sentences. However, problems that plagued previous sentencing reforms also affect the determinate policy. First, States have not planned for pressures on prison facilities that determinate sentences will produce. The cost-effective option of moving toward community corrections and other alternatives to incarceration is incompatible with a determinate sentencing policy which assumes large prisons. Finally, determinate sentencing faces significant implementation problems because it is not harmonious with routines of professional criminal justice personnel who now are committed to increasing professionalism, administrative discretion, and rehabilitation. Tables and 128 footnotes are supplied.