Beyond rehabilitation: a new theory of indeterminate sentencing.

• Author: O'Hear, Michael M.

ABSTRACT

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 1970s. 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 in 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.

TABLE OF CONTENTS I. RETRIBUTIVE PUNISHMENT AS COMMUNICATION A. Major Themes in Contemporary Retributivism B. Duff's Communicative Theory II. CHANENSON'S "INDETERMINATE STRUCTURED SENTENCING" MODEL A. ISS and Limiting Retributivism B. Concerns with ISS III. A MORE FULLY RETRIBUTIVE-COMMUNICATIVE MODEL A. Backup Sanctions and the Probation-Prison Analogy B. Responding to Objections 1. Violations of Prison Rules Are Not Breaches of the Conditions of Community 2. Parole Processes Do Not Fit Retributive Purposes 3. Delayed Release Is Retributively Excessive IV. CONCLUSION: FROM THEORY TO PRACTICE (AND BACK AGAIN) APPENDIX: STATES THAT ENHANCED EARLY RELEASE OPPORTUNITIES FOR PRISON INMATES, 2000-2010 Parole is making a comeback. (1) Although it was a universal feature of the American criminal justice system as recently as forty years ago, (2) parole fell into precipitous decline over the final three decades of the twentieth century. By 2000, fifteen states and the federal government had abolished parole altogether, while twenty additional states had formally restricted its availability. (3) Since 2000, however, at least thirty-six states have enhanced release opportunities for prison inmates (4) (although some still resist the "parole" label for their new programs). (5) Highlighting the revival, the Supreme Court's May 2010 decision in Graham v. Florida prohibited the sentence of life without parole for juveniles who have not committed homicide offenses. (6) Indeed, the sentence of life without parole is under assault globally on human rights grounds, (7) and Graham may presage a broader recognition of a constitutional right to earned release from long prison terms in the United States. (8)

The resurgence of parole and similar release mechanisms has the effect of making sentencing more indeterminate: it is harder to know at the moment a prison sentence is imposed exactly how long the offender will be incarcerated. (9) Recent developments thus mark a retreat from the ideal of determinate sentencing, which had gained wide currency in the late twentieth century under the label "truth in sentencing." (10)

Although numerous factors contributed to the decline of parole and the rise of determinate sentencing beginning in the 1970s, (11) among the most notable were the discrediting of rehabilitative programs for prison inmates and the growth in retributive theorizing about punishment. (12) Parole and indeterminate sentencing had been closely associated with the rehabilitative paradigm that dominated American criminology through the middle decades of the twentieth century. (13) The opportunity for accelerated release was embraced as a way to encourage and recognize the rehabilitative efforts of prison inmates. (14) By the mid-1970s, however, researchers were proclaiming that existing rehabilitative programs produced little demonstrable reduction in recidivism rates, (15) which contributed to a broader rejection of the rehabilitative paradigm in criminal law. (16) At the same time, retributive theories of punishment, which assert that society ought to respond to crime with condemnation instead of treatment, attracted growing interest among scholars and policymakers. (17)

The recent revival of parole and indeterminate sentencing may owe less to such broad shifts in penal theory than to the fiscal pressures created by burgeoning prison populations. Although retribution maintains its preeminent position among theorists, (18) policymakers have been forced to confront the budgetary legacy of the sentencing severity revolution of the late twentieth century, (19) and they have had to do so recently against a backdrop of economic turmoil and stagnant revenue. (20) Not surprisingly, policymakers have found early release to be an attractive option, particularly to the extent that it can be implemented without obvious public-safety hazards. (21)

An apparent disconnect has thus emerged between our dominant theory of criminal punishment and an increasingly important aspect of our practice. To the retributivist, the legitimacy of punishment is based on its character as a morally fitting response to a criminal offense. Yet, indeterminate sentencing typically contemplates that an offender's actual release date from prison (and hence the actual severity of the sentence) will be based on considerations other than just the gravity of the offense, such as the offender's disciplinary record in prison.

Consider an example. Two brothers, Jesse and James, jointly plan and perpetrate a robbery. After police apprehend them, they are tried and convicted of the same offense. Neither has a prior record, and both receive a nine-year indeterminate sentence, with release from prison to occur sometime between three and six years. (22) Jesse does well in prison and is released at the earliest possible time (i.e., at the three-year mark). James, however, proves an incorrigible troublemaker and is held until the latest possible release date (at the six-year mark). Retributivists would be uncomfortable with such an outcome because it appears that two offenders who committed the same crime have received dramatically different punishments--one spends twice as much time in prison as the other. (23) Prima facie, it appears that Jesse has received an overly lenient punishment, or James has received an overly harsh punishment, or both.

Yet, the indeterminacy-retribution disconnect may not be as great as the illustration seems to suggest. My purpose in this Article is to describe one way that indeterminate sentencing may be reconciled with a retributive approach to punishment. Since the breakdown of the traditional rehabilitative paradigm in the 1970s, indeterminate sentencing has lacked a clear theoretical foundation. Such a foundation might help to bring greater coherence to parole policies and to diminish the ad hoc expansion and contraction of parole in response to fiscal pressures and anticrime political frenzies. (24) Such a foundation may also help to bring greater coherence to the emerging Eighth Amendment jurisprudence requiring release opportunities for at least some classes of offenders. My hope is that this Article will contribute to the construction of such a foundation by showing how parole and indeterminate sentencing may be connected to our dominant theoretical approach to punishment. (25) To be clear, though, I am not making the strong claim that retributivism must be implemented through indeterminate sentencing, or even the somewhat weaker claim that retributivism is best implemented through indeterminate sentencing; rather, I advance the more modest claim that, taking indeterminate sentencing as a given, variability in release dates can be conceptualized and structured in a retributively acceptable fashion.

Because the terms "indeterminate sentencing" and "parole" have acquired many diverse connotations over the years, I should make clear at the outset that my subject--the practice that I will try to reconcile with retributivism--is earned early release from prison to community-based supervision through a regularized bureaucratic decision-making process. (26) "Earned" means that release depends in large part on performance while in prison. "Early release" means that release occurs before the completion of some maximum period of possible confinement contemplated by the sentence. "Community-based supervision" means that release is conditional and monitored; the violation of release conditions may result in sanctions up to and including reincarceration. "Bureaucratic decision-making process" means that early release is not merely an ad hoc act of grace, like executive clemency, but instead occurs pursuant to reasonably transparent, consistently applied standards and procedures.

Understood as a mechanism to implement this sort of earned release, indeterminate sentencing's apparent conflict with retributivism rests largely on the mistaken premise that retributivism necessarily and inflexibly demands that the same degree of suffering be imposed on all criminals who are guilty of the same offense. As I will show, however, retributivism--at least in some of its more...