DEPARTMENT OF JUSTICE

OFF ICE OF JUSTICE PROGRAMS

BJA NI J OJJDP BJS OVC

The Fragmentation of Sentencing

and Corrections in America 

by Michael Tonry

A

fter a quarter century of changes, there

is no longer anything that can be called

“the American system” of sentencing

and corrections. As recently as 1975, there

was a distinctively American approach, usually referred to as indeterminate sentencing,

and it had changed little in the preceding 50

years. Its core features were broad authorized

sentencing ranges, parole release, and caseby-case decisionmaking. Its premises were

that rehabilitation of offenders is a primary

goal, that decisions affecting individuals

should be tailored to them, and that judges

and corrections officials have special expertise for making those decisions.

All those features and all those premises have

been under attack. In the most radical and

comprehensive departures, some States and

the Federal Government abolished parole

boards, and some jurisdictions established

comprehensive, detailed guidelines for sentencing. In addition, every jurisdiction adopted one or more of mandatory minimum

sentences, three-strikes laws, or truth-insentencing laws requiring some offenders to

serve at least 85 percent of imposed prison

sentences.

There are now many approaches to sentencing and corrections in this country. Some

States have guidelines with parole release,

and some without. Some three-strikes States

have adopted truth-in-sentencing; some have

not. And so on, through the litany of changes

in recent decades.

At the same time, restorative and community

justice initiatives have taken root and begun

to spread. They start with premises different

from those of the sentencing law changes.

One is a difference in perspective on the

importance of individualized, case-by-case

responses to crimes. Most modern sentencing

law changes prescribe particular sentences

for particular crimes, with proponents invoking such slogans as “do the crime, do the

time” and “like punishments for like-situated

offenders.” Most restorative and community

justice programs, by contrast, delegate to the

victim, the offender, and others the decision

how best to respond to the particular facts of

particular cases.

Whether and how sentencing laws and 

practices will evolve in the coming years, 

and whether one or a few approaches will

Research in Brief

U.S. Department of Justice

Office of Justice Programs

National Institute of Justice

September 1999 Papers From the Executive Sessions on Sentencing and Corrections

No. 1

SIssues for the 21st Century

ENTENCING & CORRECTION S S ENTENCING 

Issues for the 21st CenturyS

Directors’ Message

It is by now a commonplace that the number 

of people under criminal justice supervision 

in this country has reached a record high. As 

a result, the sentencing policies driving that

number, and the field of corrections, where 

the consequences are felt, have acquired an

unprecedented salience. It is a salience defined

more by issues of magnitude, complexity, and

expense than by any consensus about future

directions. 

Are sentencing policies, as implemented through

correctional programs and practices, achieving

their intended purposes? As expressed in the

movement to eliminate indeterminate sentencing and limit judicial discretion, on the one

hand, and to radically restructure our retributive system of justice, on the other, the purposes seem contradictory, rooted in conflicting

values. The lack of consensus on where sentencing and corrections should be headed is

thus no surprise. 

Because sentencing and corrections policies

have such major consequences—for the 

allocation of government resources and, more

fundamentally and profoundly, for the quality 

of justice in this country and the safety of its 

citizens—the National Institute of Justice and the

Corrections Program Office (CPO) of the Office

of Justice Programs felt it opportune to explore

them in depth. Through a series of Executive

Sessions on Sentencing and Corrections, begun

CONTINUED ...
gradually displace others, remains to be seen.

Likewise, it remains to be seen whether and

how grassroots restorative and community

justice initiatives can be reconciled with 

sentencing laws and institutions.

These and related subjects are the agenda

around which the National Institute of Justice

and the Corrections Program Office of the

U.S. Department of Justice convened a 

multiyear series of Executive Sessions on

Sentencing and Corrections. This document,

the first in a series from the sessions, presents

an overview of the current state of sentencing

and corrections in America and a framework

for analyzing the factors most likely to shape

21st century developments.

■ ■ ■

Sentencing in 1999

Three conclusions can be drawn when 

sentencing and corrections policies in the

1990s are examined. First, there is no longer

anything that can be characterized as the

American way to organize sentencing and 

corrections. Thirty years ago there was. Then,

every State, the Federal Government, and the

District of Columbia had an indeterminate

sentencing system in which legislatures set

maximum authorized sentences; judges chose

among imprisonment, probation, and fines

and set maximum sentences; corrections officials had broad powers over good time and

furloughs; parole boards set release dates;

and virtually all these decisions were immune

from appellate review. The details (e.g., how

much good time, the minimum period before

parole eligibility) varied, but the broad outlines were everywhere the same.

In 1999, there is no standard approach. Some

States retain parole; some have abolished it.

Most States retain good time, but of lesser

scope than in the past. Eight or 9 jurisdictions

have “presumptive” sentencing guidelines 

systems, another 8 to 10 have “voluntary”

guidelines, and 1 has “mandatory” guidelines.

Numbers are imprecise because systems differ

so greatly that reasonable people disagree

over what characterizes a particular system.

Five States have statutory determinate sentencing systems, and more than 30 retain some

form of indeterminate sentencing. All States

are affected in diverse ways by three-strikes,

mandatory minimum, or truth-in-sentencing

laws.

Second, sentencing and corrections policies

today are fractured or fracturing in most

jurisdictions. What looks like a nearly monolithic set of policies in many jurisdictions is

being undermined from within by new, individualized approaches. Many people, asked to

characterize American crime policies, might

describe the unprecedented and continuing

expansion of jail and prison populations, the

widespread movement to lengthen sentences

for violent offenders, the truth-in-sentencing

movement, the initiatives to limit prisoners’

opportunities and worsen their living conditions, and the reluctance of many elected 

officials to advance policies that might be

characterized as soft on crime or drugs. From

this might be inferred unremitting toughness

and widespread commitment to policies primarily premised on retributive notions of

deserved and required harsh punishments.

While there is no doubt widespread support

for these policies, that is not the whole story.

The burgeoning drug court movement, for

example, is creating new diversion opportunities for many offenders, and in some jurisdictions eligibility is being extended to more and

more serious offenses and offenders; more

offenders who face mandatory sentences if

convicted are diverted from prosecution altogether. Similarly, though this has advanced

less far, restorative and community-oriented

programs are moving toward dealing with

increasingly serious crimes and offenders.

Third, not surprisingly, creative people in

many places are trying new things. Efforts to

incorporate broad-based community partici2 Sentencing & Corrections

in 1998 and continuing through the year 2000,

practitioners and scholars foremost in their

field, representing a broad cross-section of

points of view, are being brought together to

find out if there is a better way to think about

the purposes, functions, and interdependence

of sentencing and corrections policies. 

We are fortunate in having secured the assistance of Michael Tonry, Sonosky Professor 

of Law and Public Policy at the University of

Minnesota Law School, as project director. 

One product of the sessions is this series of

papers, commissioned by NIJ and the CPO as

the basis for the discussions. Drawing on the

research and experience of the session participants, the papers are intended to distill their

judgments about the strengths and weaknesses

of current practices and about the most promising ideas for future developments. 

The sessions were modeled on the executive

sessions on policing held in the 1980s and

1990s under the sponsorship of NIJ and

Harvard’s Kennedy School of Government.

Those sessions played a role in conceptualizing

community policing and spreading it. Whether

the current sessions and the papers based on

them will be instrumental in developing a new

paradigm for sentencing and corrections, or

even whether they will generate broad-based

support for a particular model or strategy for

change, remains to be seen. It is our hope that

in the current environment of openness to new

ideas, the session papers will provoke comment, promote further discussion and, taken

together, will constitute a basic resource document on sentencing and corrections policy

issues that will prove useful to State and local

policymakers.

Jeremy Travis

Director

National Institute of Justice

U.S. Department of Justice 

Larry Meachum

Director

Corrections Program Office

U.S. Department of Justice

2 Sentencing & Corrections

Directors’ Message

CONTINUED ...
Sentencing & Corrections 3

pation in corrections programs and policy

setting are one example. Efforts to incorporate restorative and community elements in

individual programs or departmentwide,

countywide, or statewide are another. In many

places, developments of the past decade—

structured sentencing, recognition of victims’

interests, community and intermediate punishments—are being extended.

■ ■ ■

The decline of indeterminate

sentencing

I

f a group of corrections officials, judges, 

and academics from the mid-1950s were

brought by time machine to our time, they

would likely be astonished by the seeming

confusions, complexities, and inconsistencies

of policies and practices. They would be surprised by the lack of broad agreement about

the purposes of the criminal justice system

and the goals of sentencing and corrections.

In the mid-1950s, indeterminate sentencing

was in its Golden Age. Mainstream thinkers

from Supreme Court justices to corrections

leaders and leading academics agreed that

the goals of sentencing were utilitarian, with

emphasis on rehabilitation and incapacitation.

No one argued that “just deserts” or “proportionality” or “truth-in-sentencing” or “public

sentiment” were overridingly important considerations. The closest the American Law

Institute, in drafting the Model Penal Code,1

or the National Commission on Reform of

the Federal Criminal Laws, in developing a

proposed Federal criminal code,2 came to

acknowledging punitive considerations and

the role of public opinion was to provide that

punishments should not be so slight as to

“unduly depreciate the seriousness of the

crime.”

It was not so much that, after spirited debate,

proponents of rehabilitative or individualized

corrections policies persuaded others to

accept their views, as that in the policy climate

of the time, this is what most informed people

believed. Law professor Albert Alschuler

expressed this in 1978, commenting on the

early shifts away from indeterminate sentencing: “That I and many other academics [and

corrections officials and judges] adhered in

large part to this reformative viewpoint only 

a decade or so ago seems almost incredible

to most of us today.”3

When indeterminate sentencing lost credibility

in the 1970s, nothing that followed commanded equally widespread support. “Law

and order” sentiment, by contrast, has attracted wide support among elected officials for

parole abolition, harsher penalties, and

reduced discretion, but many corrections 

officials and judges have continued to believe,

and newer ones have come to believe, in individualized decisionmaking and the importance of rehabilitative programs. Although for

a time many people involved in “sentencing

policy” (as distinguished from “corrections

policy”) came to believe that just deserts,

proportionality, and accountability were

the predominant values, that never-quiteconsensus view began to break down in the

late 1990s. This has liberated practitioners

and others to think new thoughts, pursue new

goals, and devise new strategies.

■ ■ ■

Four different conceptions

Four competing conceptions of sentencing 

and corrections coexist in the United

States today. Indeterminate sentencing, which

remains a reasonably apt description of a

majority of States’ systems, is one. Comprehensive structured sentencing is another; a

number of States have fairly fully elaborated

systems of guidelines for felonies and misdemeanors, and for sentences to confinement,

intermediate punishments, and community

penalties. What might be called community/

restorative sentencing is a third. A fully elaborated system exists nowhere, but there is considerable activity in many States, and programs

based on community/restorative principles are

beginning to deal with more serious crimes

and criminals and to operate at every stage of

the justice system, including within prisons.

The fourth conception, which might be called

“risk-based sentencing,” starts from the premises that public safety is the overriding goal

and individualized risk management the most

promising strategy. It aims at reducing risk to

the community by specifying the purpose of

sentences in relation to the offender and to

particular times and places.

The four conceptions share a number of features. First, they are conceptions of sentencing

and corrections—not of sentencing alone. In

each, “sentencing” encompasses all the key

decisions that determine the nature, severity,

duration, or termination of dispositions of

criminal offenders. This is important because

it is inconsistent with much of the determinate

sentencing movement that since 1975 has

seen the broad discretion of indeterminate

sentencing as the problem, tight standards for

judges’ decisions and abolition of parole as

the solution, and corrections managers primarily as implementers of judicially ordered

and statutorily prescribed sentences. This

implies limited roles for judges and corrections managers.

Second, although most States’ practices and

laws include elements of each conception, they

are in some ways irreconcilable. Structured

sentencing, for example, attaches great importance, at least for moderately serious to very

serious cases, to treating like cases alike.

Indeterminate sentencing attaches little importance to that value, and neither does community/restorative or risk-based sentencing. 

Third, however, many sentencing and corrections programs could be encompassed within

all or several conceptions. Drug courts, for

example, are probably compatible with all

four but with somewhat different scope in each.

Sentencing & Corrections 3
Indeterminate sentencing

These systems are the most familiar because

they are still the most common. They are

characterized by multiple, overlapping discretion of prosecutors, judges, corrections officials, and parole boards, and are premised

on the need to make individualized decisions

about offenders subject to sentencing and

corrections goals that vary from case to case.

Because the newer sentencing laws receive

more attention, it is easy to forget that a

majority of jurisdictions continue to operate

indeterminate sentencing systems not fundamentally different from a half century ago.

Mandatory minimum, three-strikes, and truthin-sentencing laws have nibbled at the edges

of these systems, but they continue to handle

the vast majority of cases in States that have

them.

Comprehensive 

structured sentencing

These systems have evolved from simple

guidelines for prison terms in Minnesota,

Pennsylvania, and Washington to much more

comprehensive guidelines that incorporate

intermediate and community punishments

and related State programs for funding county

initiatives. North Carolina has the best known

example of a comprehensive structured sentencing system, but Pennsylvania and Ohio

have also taken this path, and such systems

are being developed in other States. What

makes these systems distinctive is that they set

sentencing standards for felonies and misdemeanors, and for prison, jail, intermediate,

and community punishments. They also

include mechanisms for tying sentencing policy to correctional capacity and for distributing

State funds to stimulate and support local corrections programs.

There is a tendency to use the terms “guidelines” or “structured sentencing” States as if

they were all variations on a standard type.

While this was true of indeterminate sentencing jurisdictions between 1930 and 1975,4 it is

not true of determinate/guidelines/structured

sentencing today. Some determinate sentencing States have abolished parole release but

have no guidelines. Among guidelines jurisdictions, some have “voluntary,” some have

“presumptive,” and North Carolina and the

Federal system have “mandatory” guidelines.

Some coexist with parole release and some

do not. Some deal with all crimes and others

only with felonies. Some set narrow sentencing ranges and some set broad ones. Some

address sentences of all types and some

address only State prison sentences.

Community/restorative justice

Restorative and community approaches need

not necessarily be linked. Some programs

containing restorative justice components

operate within prison walls, and many 

community-based corrections programs are

based on restorative premises. Nonetheless,

in practice, many restorative programs are

community based, and for convenience they

are discussed together here.

The “community/restorative” conception is 

at a much earlier stage than comprehensive

structured sentencing but is spreading rapidly

and into applications that a decade ago would

have seemed visionary. These include various

forms of community involvement and emphasize offender accountability, victim participation, reconciliation, restoration, and healing

as goals (though which goals are emphasized

and with what respective weights varies 

widely). The ideas of “community” and 

“community-based” encompass many possible

initiatives, from understanding community

corrections as anything not managed by State

officials, to radical decentralization of programs and decisionmaking to neighborhood

levels proposed by people who want to abolish the criminal justice system altogether.

Part of the appeal of restorative justice, and

one of its challenges, is that it attracts support

from across ideological and political spectrums, from the social gospel emphasis on

reconciliation and healing to victims groups’

emphases on victim empowerment, vindication, and restitution. This broad appeal

recalls the early days of the determinate sentencing movement, when due-process liberals

and prisoners’ rights groups joined law-andorder conservatives and law enforcement

groups in calling for replacing indeterminate

sentencing with new systems that attached

greater importance to official accountability,

that limited official discretion, and that

sought to reduce sentencing disparities.

Those shared views on procedure and

process camouflaged stark differences

between liberals and conservatives on the

substance of sentencing and corrections policies. There may be similar fundamental differences among proponents of community and

restorative initiatives.

A variety of initiatives fall under this heading:

Vermont’s statewide experiment with reparative probation boards; countywide commitment to community justice in Deschutes

County, Oregon; the array of community participation initiatives in Travis County, Texas;

many jurisdictions’ victim-offender mediation

programs; and diverse new programs featuring sentencing circles, group conferencing,

and related initiatives. Some community

police, prosecution, and court programs to

varying degrees reflect restorative and community justice values. Related ideas are 

winning favor in other countries (including

Australia, Austria, Belgium, and New Zealand).

Comprehensive 

risk-based systems

Risk assessment, exemplified by empirically

informed prediction and classification procedures, has long been a feature of corrections

management. This conception is distinctive 

in serving not only as a management tool but

also as an overriding premise and objective.

It aims to reduce risk to the community by

specifying the purposes of sentences in relation

not only to offenders’ personal characteristics

but also to particular times and places and tailoring sentencing and correctional measures

4 Sentencing & Corrections 4 Sentencing & Corrections
Sentencing & Corrections 5

accordingly. There is emphasis on community

supervision—in particular, closely supervised

programs with graduated and individualized

responses to offenders’ lapses and failures. No

such system is now in full operation, but many

features of Delaware’s SENTAC (Sentencing

Accountability), including its five-level continuum of sanctions, are consistent with it.

Risk-based sentencing is in some ways a reconceptualization of indeterminate sentencing,

but with the key difference that individualized

assessments of risk are seen as being as

much a means to achieve public safety as to

facilitate offender rehabilitation. Conditions

imposed—and enforced—will often relate to

minimizing the particular risk an offender

presents for a particular community. The

emphasis is thus as much on reducing crime

risks in particular places as on reducing

recidivism probabilities of particular offenders.

Like community/restorative sentencing, riskbased sentencing is largely inconsistent with

recent initiatives to reduce or eliminate discretion and to link sanctions primarily to the

crime rather than to the criminal. Individual

offenders present particular risks in particular places, and only sometimes will these be

closely tied to the offense that put the offender

under justice system supervision. Operating

such a system will require that officials have

substantial discretion to establish individualized conditions and controls and to enforce

them through flexible, graduated sanctions.

This conception, too, is less fully elaborated

than indeterminate or comprehensive 

structured sentencing and so far is not the

subject of as extensive experimentation as

community/restorative sentencing. However, 

it shares problem-solving and communityorientation elements with modern police and

prosecution developments and is likely to

receive increasing attention. A fully elaborated

system of risk-based sentencing was proposed

for Wisconsin in 1996,5 and pilot projects are

under way in two Wisconsin counties.

■ ■ ■

Similarities and differences

Each of the four conceptions has a distinct

set of implicit premises, principles, and

purposes concerning the aims of the justice

system, the requirements of justice, and the

relations between citizen and state. Of course,

no one is surprised if, in life, principles

sometimes conflict or policies or programs

sometimes seem self-contradictory or ad hoc.

A preliminary effort to array the four conceptions along a number of dimensions or values

is presented in matrix form (see the exhibit).

The matrix roughly characterizes the conceptions as high, moderate, low, or unclear on

how likely they are to further or protect various goals or values of a sentencing and corrections system: equal treatment, autonomy,

participation, transparency, and legitimacy.

The aim is not to be definitive but to focus on

what is potentially valuable, reassuring, or

disturbing in the four conceptions. 

Equal treatment

The axiom, “like cases should be treated alike

and different cases differently,” commands

wide support. The claim that indeterminate

sentencing often results in disparities (like

cases treated differently) is a recurring criticism. Reducing disparities is a major goal of

many determinate sentencing laws and structured sentencing systems. The ideas that people

should be treated fairly, especially by the state,

and that fairness includes equal treatment, are

widely shared and present challenges for indeterminate, community/restorative, and riskbased sentencing.

In our time the influence of retributive ideas

makes people think of “like-situated” in terms

primarily of crimes and criminal histories.

Thus, when two offenders convicted or

accused of the same crime are handled in substantially different ways under indeterminate,

community/restorative, or risk-based sentencing, it is natural to see this as “disparity.” It is

open to proponents of other conceptions to

argue that two offenders who have committed

the same crimes are nonetheless differently 

situated in “rehabilitative need,” “communityconnectedness,” or “risk profile.” 

Proponents of community/restorative sentencing, for example, might argue that seemingly

similar crimes can have very different 

effects on different victims and that equalpunishment approaches ignore those 

differences. They might also argue that equaltreatment concerns are less important when

the goal is constructive, not primarily punitive, and when the offender must agree to the

disposition.

Coupled with concerns about equality are concerns about administration. If officials administering punishment or processes affecting

punishment are not constrained by policy, the

likelihood of arbitrary, idiosyncratic, invidious,

and stereotype-influenced decisions is greater.

Thus, another part of the attack on indeterminate sentencing is a set of arguments that officials cannot be trusted to resist temptations to

be willful or to be influenced by personal biases and unconscious stereotypes.

Autonomy

The “right to be left alone” is another core

idea in American political culture underlying

the 1970s challenges to indeterminate sentencing. Libertarian ideas wax and wane, and

individuals’ lack of insulation from government in the 1990s bears little resemblance to

the rugged individualism of frontier days, but

the idea that personal and moral autonomy

are important values is still influential. To

many people, criminals deserve to be punished because they are autonomous actors

who are morally responsible for their acts. 

To others, social disadvantage, disrupted

childhoods, and limited opportunities make

some offenders less culpable than others. To

many, criminals have a right not to be punished

more severely than they deserve. To many, the

state has no business intervening in people’s

private lives and paternalistically making

choices for them.

Sentencing & Corrections 5
Participation

The third value, participation, was not 

explicitly part of the attack on indeterminate

sentencing, though it may have been an unarticulated source of dissatisfaction. Pressure

for wider participation is part of the context

of sentencing and corrections policy in the

1990s. From the victims’ rights movement

have come calls for victim notification, participation, consultation, restitution, and vindication. From the community and restorative

justice movements have come perceptions

that victims, families, and members of the

community are potentially important participants in deciding the response to crimes.

There is some irony in pressures for broader

participation in decisionmaking as it affects

individual case disposition. Most histories

of the criminal law describe the removal of

responses to crime from the community to

the state as something to celebrate. Having the

state take custody of the offender’s body and

assume responsibility for responding to his

crime could prevent vigilantism, retaliation,

and other self-help by the victim and the victim’s family or friends. Likewise, the community as a place where emotions get out of

hand is often contrasted with the legal system,

where formal processes and dispassionate

officials protect offenders from unrestrained

community pressures. Indeterminate sentencing in particular was commonly seen as a way

to professionalize the response to crime.

Transparency

Transparency is another low-profile component of the attack on indeterminate sentencing that has become more explicit. The term

is often used for processes whose workings

are observable, in contrast with processes that

take place behind closed doors. During the

1970s, indeterminate sentencing was disparaged as “bark-and-bite” sentencing: The

judge’s bark often was much fiercer than 

corrections’ bite. Truth-in-sentencing, which

gained momentum in the 1990s, is premised

on the notion that the public is entitled to know

that offenders will suffer the punishments

judges order. This is a reversal of the indeterminate sentencing idea that decisions should

be made by professionals in low-visibility 

settings where they are unlikely to be influenced by public sentiment and passion.

Proponents of community/restorative sentencing might argue that the systems they propose are more transparent than any in which

responses to crime are solely controlled by

public officials. The transparency of truthin-sentencing, they would argue, is theoretical. While citizens might know in the abstract

that offenders will serve the punishment

imposed, few citizens have firsthand knowledge of the handling of any particular case, 

or of cases in general. Community and

restorative initiatives, by contrast, have a

“community-connectedness” that offers a 

different and arguably more important transparency. By including victims and offenders,

their families, community members, and others (employers, neighbors, friends, teachers,

or social workers, depending on the circumstances) in the process, community/restorative approaches are more likely to be known

and understood in the community most affected by a crime.

Legitimacy

The fifth value, legitimacy, also may have been

implicit in the attack on indeterminate sentencing, but has recently become better

understood. People resent being treated

unfairly, and ideas about unfairness underlay

objections to sentencing disparities and calls

for sentencing rules and officials’ accountability.

Work on “procedural justice,” most famously

associated with psychologist Tom Tyler,6 and

recently extended to prison administration 

by Anthony Bottoms and his colleagues,7 has

shown that people’s reactions and behaviors

are strongly influenced by whether they

believe their interests receive fair consideration and that procedures leading to decisions

affecting those interests are fairly administered. Some argue that being treated in a way

perceived as fair may reduce later offending.8

6 Sentencing & Corrections 6 Sentencing & Corrections

Values Expressed or Served in the Various

Sentencing/Corrections Models

Indeterminate Structured Community/ Risk-Based

Restorative

Equal treatment

Individualization High Low High High

Risk of disparity High Low High High

Official discretion High Low — High

Risk of bias High Low — High

Desert Low High Low —

Proportionality Low High Low Low

Autonomy

Paternalism High Low — High

Public safety — — High High

Participation

Victims Low Low High Low

Communities Low Low High —

Offenders Low Low Moderate Low

Transparency Low High Low Moderate

Legitimacy — — High Moderate

Note: Dashes mean value is not clear.
Sentencing & Corrections 7

This notion of legitimacy is somewhat different from traditional notions of due process.

The latter are based on a substantive notion

that people should be treated fairly. The former is based on empirical findings that people react better to decisions that run counter

to their interests when they believe they have

been treated fairly. It is a happy coincidence

when doing what’s right (treating people fairly)

is more effective in instrumental terms than

doing what’s wrong (treating people unfairly).

“Legitimacy” in this sense is a major component of community/restorative sentencing,

which is predicated on victim, offender, and

often community participation and satisfaction. Risk-based sentencing, by tailoring 

dispositions to offender and community

needs, and providing certain but graduated

responses to offenders’ failures to comply

with conditions, treats offenders as individuals. Indeterminate and comprehensive structured sentencing, by contrast, make little

effort to elicit offenders’ participation or

agreement and no effort to include victims

or the community.

■ ■ ■

Toward better policies

These are all complex concepts about

which reasonable people differ. In the

matrix, “proportionality,” “desert,” and 

“disparity” are listed under “equal treatment.”

For people who see the sentencing and corrections system as primarily retributive and

concerned with ordering and implementing

deserved punishments, proportionality and

desert are desirable, and disparity to be avoided. For people who see sentencing and corrections as primarily preventive or restorative,

individualization is an important value, and

desert, proportionality, and disparity are at

most constraints. And so on.

Compared with the 1950s and 1960s when

indeterminate sentencing was the only conception in use or under consideration, and

the 1970s and 1980s when “desert-based”

guidelines competed with indeterminate 

sentencing, the four conceptions permit an

exploration of issues that might lead to richer

understanding and better policies. That has

been the task of the Executive Sessions on

Sentencing and Corrections. 

This publication and others in the series distill what has been learned from the sessions.

Three related policy briefs based on the sessions develop in greater detail contemporary

efforts to implement indeterminate and comprehensive structured sentencing, community/restorative sentencing, and risk-based

sentencing.9 Other publications in the series

describe more specific applications in sentencing and corrections.

Notes

1. Model Penal Code (Proposed Official Draft),

Philadelphia: American Law Institute, 1962.

2. National Commission on Reform of the

Federal Criminal Laws: Final Report, Washington,

DC: U.S. Government Printing Office, 1968.

3. Alschuler, Albert W., “Sentencing Reform and

Prosecutorial Power,” University of Pennsylvania

Law Review 126 (1978): 552.

4. Rothman, David J., Conscience and

Convenience: The Asylum and Its Alternatives in

Progressive America, Boston: Little, Brown, 1980.

5. “Wisconsin Governor’s Task Force on Sentencing

and Corrections—Final Report,” Overcrowded

Times 7 (6) (December 17, 1996): 5–17.

6. Tyler, Tom R., Why People Obey the Law:

Procedural Justice, Legitimacy, and Compliance,

New Haven, CT: Yale University Press, 1990.

7. Sparks, Richard, Anthony Bottoms, and Will

Hay, Prisons and the Problem of Order, Oxford:

Clarendon Press, 1996.

8. Sherman, L.W., and G. Barnes, “Restorative

Justice and Offenders’ Respect for the Law,” in

Reintegrative Shaming Experiment (RISE)

Working Paper No. 3, Canberra: Australian

National University, Research School of Social

Sciences, 1997.

9. These papers are, respectively: Tonry, Michael,

Reconsidering Indeterminate and Structured

Sentencing, NCJ 175722; Kurki, Leena,

Incorporating Restorative and Community

Justice Into American Sentencing and

Corrections, NCJ 175723; and Smith, Michael E.,

and Walter J. Dickey, Reforming Sentencing and

Corrections for Just Punishment and Public

Safety, NCJ 175724. All: Research in Brief—

Sentencing & Corrections: Issues for the 21st

Century, Washington, DC: U.S. Department of

Justice, National Institute of Justice/Corrections

Program Office, September 1999.

Sentencing & Corrections 7

Michael Tonry, Sonosky Professor of Law and Public

Policy at the University of Minnesota Law School, is

the organizer and director of the Executive Sessions

on Sentencing and Corrections. 

This study was supported by cooperative agreement

97–MUMU–K006 between the National Institute of

Justice and the University of Minnesota.

Findings and conclusions of the research reported

here are those of the author and do not necessarily

reflect the official position or policies of the U.S.

Department of Justice. 

The National Institute of Justice is a component

of the Office of Justice Programs, which also

includes the Bureau of Justice Assistance, the

Bureau of Justice Statistics, the Office of Juvenile

Justice and Delinquency Prevention, and the

Office for Victims of Crime.

This and other NIJ publications can be found 

at and downloaded from the NIJ Web site

(http://www.ojp.usdoj.gov/nij).

NCJ 175721
Ronald Angelone

Director

Department of Corrections

Commonwealth of Virginia

Neal Bryant

Senator

Oregon State Senate

Harold Clarke

Director

Department of Correctional Services

State of Nevada

Cheryl Crawford

Deputy Director, Program 

Development Division

National Institute of Justice

U.S. Department of Justice

Barbara Damchik-Dykes

Project Coordinator

Executive Sessions on Sentencing 

and Corrections

Walter Dickey

Evjue-Bascom Professor of Law

University of Wisconsin 

Ronald Earle

District Attorney

Austin, Texas

Tony Fabelo

Director

Texas Criminal Justice Policy Council

Richard S. Gebelein

Superior Court Judge

Wilmington, Delaware

John Gorczyk

Commissioner

Department of Corrections

State of Vermont

Kathleen Hawk Sawyer

Director

Federal Bureau of Prisons

U.S. Department of Justice

Sally T. Hillsman

Deputy Director

National Institute of Justice

U.S. Department of Justice

Martin Horn

Secretary

Department of Corrections

Commonwealth of Pennsylvania

Susan M. Hunter

Chief, Prisons Division

National Institute of Corrections

U.S. Department of Justice 

Michael Jacobson

Professor of Law and Police Science

John Jay College of Criminal Justice

City University of New York

Leena Kurki

Research Associate 

Law School

University of Minnesota

Project Associate

Executive Sessions on Sentencing and

Corrections 

John Larivee

Chief Executive Officer

Crime and Justice Foundation

Joe Lehman

Secretary

Department of Corrections

State of Washington

Dennis Maloney

Director

Deschutes County (Oregon) 

Department of Community Justice

Larry Meachum

Director

Corrections Program Office

Office of Justice Programs

U.S. Department of Justice

Mark H. Moore

Guggenheim Professor of Criminal

Justice Policy and Management

John F. Kennedy School of Government

Harvard University

Norval Morris

Emeritus Professor of Law and

Criminology

University of Chicago

Joan Petersilia

Professor of Criminology, 

Law and Society

School of Social Ecology

University of California, Irvine

Kay Pranis

Restorative Justice Planner

Department of Corrections

State of Minnesota

Michael Quinlan

Former Director

Federal Bureau of Prisons 

U.S. Department of Justice 

Chase Riveland

Principal

Riveland Associates

Thomas W. Ross

Superior Court Judge, 

18th Judicial District

Chair, North Carolina Sentencing 

and Policy Advisory Commission

Dora Schriro

Director

Department of Corrections

State of Missouri

Michael Smith

Professor of Law

University of Wisconsin 

Michael Sullivan

Secretary

Department of Corrections

State of Wisconsin

Morris Thigpen

Director

National Institute of Corrections

U.S. Department of Justice

Michael Tonry

Sonosky Professor of 

Law and Public Policy

University of Minnesota 

Project Director

Executive Sessions on Sentencing 

and Corrections

Jeremy Travis

Director

National Institute of Justice

U.S. Department of Justice

Reginald A. Wilkinson

Director

Department of Rehabilitation 

and Correction

State of Ohio

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8 Sentencing & Corrections 8 Sentencing & Corrections

The Executive Sessions on Sentencing and Corrections

Convened the following distinguished panel of leaders in the fields: