An indeterminate sentencing structure is one where a sentence for a criminal offense is given as a range as opposed to a fixed amount of time. For example, a defendant could be sentenced to “15 years to life in prison.”
With an indeterminate sentence,
- a minimum prison term is always given but
- a release date is left open.
The specific date of release is generally determined by a state parole board when it reviews the given case.
- Indeterminate sentences are typically imposed for felony convictions (as opposed to misdemeanors) that involve a state prison sentence. They are not usually imposed on nonviolent offenders.
- Determinate sentencing lies in contrast to an indeterminate sentencing system. Under this form of sentencing law, a judge imposes a sentence that has a specific term length. An example is eight years in state prison, or one year in county jail.
State law of every state within the U.S. will determine which form of criminal sentencing the state uses.
Inmates can receive early release under both systems of sentencing. A parole board will normally grant early release in an indeterminate system if inmates can show that they have rehabilitated themselves.
With a determinate sentence, early release is generally provided for:
- good behavior, or
- work release.
What is indeterminate sentencing?
Under state criminal laws, and within the criminal justice system, “indeterminate sentencing” refers to a specific way that a sentence is imposed in a criminal case.
When a sentencing judge announces an indeterminate sentence, he/she gives a mandatory minimum term of confinement but does not provide a concrete release date from prison.1
For example, a judge might impose the following indeterminate sentences:
- “5 years to 15 years in state prison,” or
- “20 years to a life sentence.”
Once inmates serve their minimum sentences, parole boards can review their cases and determine whether or not they should be released.2 If a board refuses to release an inmate, that person remains in custody and parole release is discretionary as determined by a future parole board meeting.
Determinate sentencing is different that indeterminate sentencing. When a judge gives a determinate sentence, he/she imposes a prison term that has a specific amount of time (for example 3 years in county jail or 7 years in prison).3
With a determinate sentence, the length of a prison term cannot be changed by a parole board or a state’s department of corrections.
Who decides whether to impose determinate or indeterminate sentences?
Each state’s criminal laws ultimately determine whether or not the state uses a determinate or indeterminate sentencing system.
For example, some states that adhere to a determinate sentencing system include:
- Florida,
- Illinois,
- Kansas,
- Maine, and
- Washington4
Some states that follow an indeterminate sentencing system include:
- Arkansas,
- Colorado,
- Connecticut,
- Missouri,
- New York, and
- Utah5
The majority of today’s states follow the latter form of sentencing.6
Note, though, that in practice most jurisdictions use both forms of sentencing, with determinate sentencing used for some crimes and indeterminate sentencing used for others.7
Note, too, that some states changed from an indeterminate system to a determinate one. This means past offenders within a state’s criminal justice system may have been sentenced under a different version of sentencing guidelines than current offenders.8
What are the pros and cons of determinate sentences?
The following are a few pros of determinate sentences:
- fairness. A system that gives offenders the same basic sentence for a crime is presumptively fairer than a system where some offenders of the same crime get released and others stay in confinement.
- efficiency. A determinate system saves a state time and money as judges can impose a sentence without a parole board having to meet to determine a release date.
- reduction in crimes. Analysts say crime rates will decrease since offenders will know exactly what sentence a crime will result in.
A few cons of determinate sentencing include:
- more inmates. The idea is that indeterminate sentencing results in lower prison populations since parole boards can grant early release.
- less flexibility. Similarly, parole boards provide flexibility to sentencing since they can release people early and let them start a new life.
- less of a rehabilitative value. An indeterminate system says a parole board can release an inmate once he/she has rehabilitated (a major tenet within the criminal justice system). This is not a major factor in a determinative system since parole boards have little to say in release decisions.
California is a determinate sentencing state, but some defendants are sentenced under the indeterminate sentencing law.
How can an inmate seek an earlier or shorter release?
In a determinate system, two ways an inmate may receive a shorter release date than the date imposed by the judge are for:
- good behavior, or
- work release
Work release is a program where certain inmates are transitioned into a county-based institution, and
- leave the facility during the day to attend regular work, and
- return to the institution immediately after work for confinement purposes.
In an indeterminate system, eligibility for early release typically depends on rehabilitation. Parole boards are more likely to release inmates if they can show that they have rehabilitated themselves, meaning they have separated themselves from those factors that lead them to commit a crime.
What is the law in California?
California is labeled a determinate sentencing state.9
But while most offenders are sentenced under the state’s Determinate Sentencing Law (DSL), others are sentenced under the State’s Indeterminate Sentencing Law (ISL).10
For felony offenses, California Penal Code 1170b PC sets forth three possible sentences for a judge to consider. These include:
- an upper term (or the maximum sentence),
- a middle term, and
- a lower term (or the minimum sentence).11
A judge then considers aggravating and mitigating circumstances to decide which term to impose.
Some aggravating circumstances include:
- whether the crime involved great violence or great bodily injury,
- whether the defendant used a deadly weapon in committing the crime, and
- whether the victim was particularly vulnerable.12
As a general sentencing rule, the greater the number of aggravating factors present in a case, the harsher the sentence.
Some mitigating circumstances include:
- whether the accused played only a minor role in the offense,
- whether the victim was an initiator of a violent offense or force, and
- whether the defendant believed he owned any property taken.13
As a general rule, the greater the number of mitigating factors present in a case, the less severe the final sentence.
Note that most California misdemeanors can be punished with:
- confinement in county jail (with a maximum term of either six months or one year), and/or
- a fine.
Again, a judge will consider certain facts of the case to determine what specific sentence to impose. These facts include the circumstances listed above along with the accused’s criminal history.
Additional reading
For more in-depth information, refer to these scholarly articles:
- No Indeterminate Sentencing without Parole – Ohio Northern University Law Review article on how the possibility of parole should be a required part of indeterminate sentences.
- Indeterminate Sentencing Redux: A Return to Rational Sentencing – Federal Sentencing Reporter article proposing a better, fairer sentencing scheme.
- Balancing the Goals of Determinate and Indeterminate Sentencing Systems – Federal Sentencing Reporter article weighing the pros and cons of different sentencing schemes.
- Beyond Rehabilitation: A New Theory of Indeterminate Sentencing – American Criminal Law Review article suggesting a new normative model for indeterminate sentencing.
- Indeterminate Sentencing: An Analysis of Sentencing in America – California Law Review article surveying how indeterminate sentencing is imposed throughout the United States and its consequences.
Legal Citations
- Black’s Law Dictionary, Sixth Edition – “Indeterminate Sentence.” See, for example, In re. Butler (2018) .
- See same.
- Black’s Law Dictionary, Sixth Edition – “Determinate Sentence.” See, for example, Cunningham v. California (2007) .
- See University of Michigan Robina Institute of Criminal Law and Criminal Justice website – “Parole Boards within Indeterminate and Determinate Sentencing Structures.”
- See same.
- See same.
- See same.
- Note that some states began as an indeterminate state but then moved to a determinate sentencing system, as part of sentencing reform, in the late 1970s and 1980s because of overcrowding prison populations and reductions in crime rates. See “Reconsidering Indeterminate and Structured Sentencing,” U.S. Department of Justice.
- See “Parole Boards within Indeterminate and Determinate Sentencing Structures,” fn 4 above.
- See the California Department of Corrections and Rehabilitation website – “Sentencing, Incarceration & Parole of Offenders.”
- California Penal Code 1170b PC. Note that these terms may also be stated within the specific statute that applies to the offense committed. See, for example, People v. Minifie (Court of Appeal of California, Second Appellate District, Division Seven, 2018) 22 Cal. App. 5th 1256.
- California Rules of Court Rule 4.421.
- California Rules of Court Rule 4.423.
