My new article, “Beyond Rehabilitation: A New Theory of Indeterminate Sentencing,” is now available here on SSRN. The article grew out of my interest in the revival of early-release opportunities that has occurred over the course of the past decade. This revival has the effect of making sentencing less determinate in many jurisdictions — it is not as clear at the time the judge pronounces the sentence exactly how long the defendant will spend in prison. It is commonly assumed that indeterminate sentencing is incompatible with retributive approaches to punishment, particularly to the extent that the amount of incarceration is made to depend on considerations other than the gravity of the crime (for instance, on the defendant’s performance while in prison).
My purpose in the article is suggest one way that indeterminate sentencing may be reconceptualized so that it fits tolerably well with at least one version of retributivism. In essence, an indeterminate sentence is seen as a way to permit limited extensions of incarceration as a retributive response to persistent, willful violations of prison rules. Were this approach adopted, however, it would probably require a rethinking not only of the way that parole is administered, but also the way that prisons are run. If prisons are, in practice, little more than warehouses — places of intense exclusion that aim to provide no more than the bare necessities for physical existence — then it is not clear there is a morally satisfactory basis for retributive responses to prison rule-breaking.
The article is forthcoming in the American Criminal Law Review. The abstract appears after the jump.
Indeterminate sentencing—that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board—fell into disrepute among theorists and policymakers in the last three decades of the twentieth century. This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970’s. In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release. Yet, sentencing remained indeterminate most places to varying degrees, and now parole and similar mechanisms are staging an unexpected comeback. However, despite its perseverance and apparent resurgence, indeterminate sentencing has lacked any clear theoretical foundation since the demise of the rehabilitative paradigm. Indeed, indeterminate sentencing is commonly thought to conflict with retributivism, the dominant approach to punishment theory today. The lack of a clear theoretical foundation has likely contributed in recent decades to the ad hoc expansion and contraction of parole in response to short-term political and fiscal pressures.
In the hope of bringing greater stability and coherence to what seems once again an increasingly important aspect of our penal practices, this Article proposes a new normative model for indeterminate sentencing that is grounded in a retributive, communicative theory of punishment. In essence, the model conceives of delayed release within the indeterminate range as a retributive response to persistent, willful violations of prison rules. The Article explores the implications of this model for prison and parole administration and for punishment theory.
Cross posted at PrawfsBlawg.