Cons: (French, 1977)
- little discretion for sentencing judges
- little incentive for inmate to behave or rehabilitate while incarcerated as sentence length is fixed and the parole board is abolished
- the opportunity for the inmate to play a role in their own release is circumvented; “self-discipline has to be used or the inmate gains nothing.” (French, 1977, p. 10)
- may violate the traditional philosophy of the juvenile justice system (of rehabilitative ideals) if the offender is detained longer than the necessary time needed for rehabilitation for punitive purposes
Pros: (French, 1977)
- removes the aura of uncertainty from the justice system
- threatens the potential criminal with a definite prison term
- narrowing judiciary discretion (also is seen as a con to many)
- limits disparity in sentencing
- limits possibility of social or ethnic bias in sentencing
- coercive techniques sometimes used by trial judges can no longer be employed
- may provide a deterrent motive for juvenile offenders not to commit delinquent acts
Appropriateness for different juvenile offenders
Since it is difficult, if not impossible, to predict the exact amount of time it will take for each individual juvenile offender to rehabilitate, determinate sentencing provides more of a just desserts and punitive focus in dealing with juvenile offenders. It may be appropriate only at the extremes of delinquent behavior. For example, a short-term determinate sentence may be appropriate for status offenders who have not committed a crime but instead may require a short-term determinate sentence only as a deterrent incentive. At the other extreme is the chronic and serious violent offender who has previously served an indeterminate sentence and has not responded well to rehabilitation. This individual may need the deterrence and punishment effects (as well as the community needing protection from the offender) of a long-term determinate sentence lasting until the age of majority.
Interventions Used with Indeterminate Sentencing
With a focus on rehabilitation, indeterminate sentencing is often combined with treatment interventions that are often successful in “fixing” what is “broken” in the juvenile delinquent. Research has shown that effective interventions are theory-driven and use active learning methods. Based on social learning theory, these programs can change behaviors in the delinquent juvenile by involving them with social interaction, role modeling, and role playing positive behaviors with peers they can relate to. These programs also address the risk factors that are present in the juvenile’s life that are believed to contribute to delinquency: substance abuse, poverty, ethnic or cultural differences, broken families, etc. (O’Connor, 2008).
Impact of Waiver on Indeterminate Sentencing
Three specific methods can be used to transfer a juvenile to adult court by waiver: statutory exclusion laws where legislation mandates certain crimes are automatically transferred; 2) judicial waiver where the juvenile judge decides whether or not to waive jurisdiction over the juvenile; and 3) prosecutorial discretion where the prosecuting attorney has the ability to try a juvenile directly in adult court. (Bureau of Justice Assistance, 1998)
The number of states increasing the ways in which a juvenile can be transferred to adult court has been increasing in the past decade; as well as lowering the age at which a juvenile can be transferred and adding offenses for which the juvenile can be transferred. All of these increased waiver provisions have been introduced due to the public and political “get tough” perceptions of necessity that has coincided with the use of more determinate sentencing structures. Determinate sentencing and waiver go hand-in-hand and work together to reduce judicial discretion, reduce rehabilitation for juveniles while increasing punishment efforts. The increased use of waiver has decreased the use of indeterminate sentencing.
The Bureau of Justice Assistance states, “These changes are disturbing, given that there is no evidence that prosecuting juveniles as adults reduces crime. In fact, research has shown that juveniles prosecuted as adults have higher recidivism rates than those who remain in the juvenile system. It is evident that changes in waiver provision laws have been based on public or political perception and not on empirical evidence.” (Bureau of Justice Assistance, 1998)
Impact of Indeterminate Sentencing on Recidivism
Many studies indicate that indeterminate sentencing can reduce recidivism indirectly by increasing the delinquent’s cooperation with rehabilitative efforts. Juveniles who are incarcerated for an indeterminate amount of time know they will be released based on their cooperation and improvement, whereas those serving a determinate amount of time know that regardless of their cooperation or improvement they will be released at a specific day and time.
New York City Corrections Commissioner Katharine Davis states, “The average offender hates the indeterminate sentence. He would much rather know in advance just what time he is in for, and then sit down and chalk off the days, instead of exerting himself to win free time by industry and good behavior.” (McCarthy, 1997)
Ms. Davis reports that throughout her career she has seen dramatically reduced recidivism rates among parolees released from indeterminate sentences compared with those who served definite terms, even when the definite (determinate) term was shorter. The parolees’ recidivism rate was about half that of released definite termers. (McCarthy, 1997)
Marian Gewirtz reports in a study by the New York City Criminal Justice Agency, “the findings of the re-arrest models suggest that the way juvenile cases are processed in Manhattan Supreme Court with its emphasis on placement programs under court supervision may not only delay the initial re-arrest but also may reduce the likelihood of re-arrest for the most serious offenses.” (Gewirtz, 2007)
… Part III coming soon on
- Serving in Split Jurisdictions
- Utility of Diversion Programs