Fixed Sentences Gain Favor

Conservatives and cons alike see them as less capricious

For a century the indeterminate sentence has been the sweetheart of prison reformers. Yet this month Illinois becomes the fourth state in two years--after Maine, California and Indiana--to install a system of judicially fixed, predetermined sentences in place of the traditional, often capricious program of discretionary release by parole authorities. Moves are afoot in 15 other states to do the same. As the respected Corrections Magazine puts it, "Determinate sentencing is clearly an idea whose time has come."

In most states, judges can sentence a convicted robber, say, to between one and 20 years; the actual time the felon serves would depend on prison and parole authorities' judgment of his progress toward rehabilitation. That, says Illinois Criminologist Hans Mattick, "made drama schools out of prisons and actors out of prisoners." Under the Illinois plan, the judge will assign a specifically legislated term--two, three or four years for a robbery felony, depending on circumstances. The convict's sentence can be reduced only by accumulation of "good time"--a day off for each day of trouble-free prison life. Argues former Minnesota Corrections Commissioner David Fogel, considered the father of determinate sentencing: "It's time we realized that prisons are for punishment."

The rush to determinate judgment is being led by an unlikely alliance: inmate groups, various academics and law-and-order conservatives. Since California embraced the indeterminate sentence in 1917, prisoners have increasingly chafed under what they see as the arbitrariness of parole authorities. Soledad Brother George Jackson, for example, was held in prison eleven years for a $70 gas station robbery because, his partisans said, he refused to soft pedal political militancy.

California's decision to abolish indeterminate sentencing was precipitated by a liberal outcry over the 22-year incarceration of a child molester. In other states, conservatives have led the drive, accusing parole authorities of excessive leniency. Last year Maine became the first state to adopt determinate sentencing in a public protest over crime by parolees.

Traditionally, a prison sentence was supposed to serve four purposes: 1) rehabilitation, giving the prisoner an opportunity to learn a trade and go straight; 2) to keep him from further opportunity to harm society; 3) the meting out of "just desserts," society's penalty for misbehavior; 4) the deterrent value--a reminder to citizens generally and the offender in particular of the consequences of crime.

But critics say the theoretical soundness of the system is undermined by the discretion accorded everyone involved in setting prison terms, from prosecutors to judges to parole boards. Federal Judge Marvin Frankel, an articulate advocate of sentencing review, tells of a colleague who bragged about adding a fifth year to a convict's sentence simply because he spoke disrespectfully in court. Says University of Chicago Law Dean Norval Morris, another opponent of indeterminate sentences: "Present practices are arbitrary, discriminatory and unprincipled."

While few disagree with that assessment, there is no consensus over any proposed reform. University of Colorado Law Professor Albert Alschuler argues that determinate sentencing may only force more plea bargaining; with judges and parole boards no longer empowered to mete out mercy, defendants will be under greater pressure to plead guilty to lesser offenses. Concludes Alschuler: "The big winners will be the prosecutors." Chicago's Morris is worried that state legislatures, with their susceptibility to demagoguery on a sensitive issue like crime, "can't be trusted" to set humane sentences.

Some prison officials fear that without the incentive of parole, what little life remains in the concept of rehabilitation will be snuffed out. Further, institutions will become even more crowded as convicts serve out long sentences. With only good time remaining as a route to early release, the potential for abuse by prison guards would be heightened as well. Warns George Denton, Ohio corrections director: "Determinate sentencing transfers discretion from the most qualified members of the corrections department to the lowest paid and least educated."

Many liberals question the depth of the drive for determinate sentences. Noting that many judges hand out tough sentences but do not expect them to be fully served, the University of Chicago's Franklin Zimring argues that parole serves a humane function "in a system that seems addicted to barking louder than it really wants to bite." Thus the firm-sentences movement could turn out to be short-lived. Harvard's Alan Dershowitz, for one, has predicted that after a period of legislative intrusion into sentencing, complaints will be voiced about excessive conformity and rigidity, "and the cycle will turn once again." qed

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