Discretion and the Determinate Sentence: Its Distribution, Control, and Effect on Time Served

Abstract

Sentencing reformers have criticized current sentencing practices as abusive and as rooted in untenable assumptions. While many different approaches have been suggested, most reformers agree that changes must (1) reduce or eliminate the discretion available to those responsible for sentencing and (2) reduce or eliminate discrepancies in sentences, while (3) not resulting in an unreasonable increase in prison populations. Recently, the Indiana legislature passed a new penal code which, among other changes, established a determinate sentencing structure. An analysis of this code suggests that the intent of most sentencing reformers may not have been met by this new law. The potential for discretion has not been reduced; in fact, prosecutors may now have more power to manipulate the sanctions imposed. Substantial control over the sentence has been placed in the hands of correctional staff through credit time provisions. And projection of the impact of this penalty scheme indicates that sentences may be almost 50 percent longer for some first-time felony offenders. It is concluded that many of the code's problems could be eliminated by reduc ing the length of prison sentences.