DEPARTMENT OF JUSTICE

OFF ICE OF JUSTICE PROGRAMS

BJA NI J OJJDP BJS OVC

Reconsidering Indeterminate and

Structured Sentencing

by Michael Tonry

A merican sentencing and corrections

policies are in ferment. No longer is

there anything that can be characterized

as the American approach. Thirty years ago

there was. Every State, the Federal Government,

and the District of Columbia had an indeterminate sentencing system in which legislatures set maximum authorized sentences 

(and occasionally, but seldom, minimum 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 review by appellate

courts. The details varied, but the broad outlines were everywhere the same.

In 1999, there is no standard approach.

Some jurisdictions retain parole; some have

abolished it. Most retain good time, but of

lesser scope than in the past. A sizable minority have adopted some form of “structured

sentencing.” Eight or 9 operate “presumptive” sentencing guidelines systems, another 

8 to 10 have “voluntary” guidelines, and 

2 jurisdictions in 1 State have “mandatory”

guidelines. Five have statutory determinate

sentencing systems, and more than 30 retain

some form of indeterminate sentencing. The

numbers are imprecise because systems differ

so greatly that reasonable people can disagree

over which label best characterizes a particular system. All jurisdictions are affected by

recently enacted three-strikes, mandatory

minimum, or truth-in-sentencing laws.

Sentencing and corrections policies are fractured or fracturing. What look like monolithic

tough-on-crime policies in many jurisdictions

are being undermined from within by new,

individualized programs and approaches.

Many people, asked to characterize American

crime policies, might describe the unprecedented and continuing expansion of jail and

prison populations, the widely shared impulse

to lengthen sentences for violent offenders,

the federally encouraged truth-in-sentencing

movement that requires offenders to serve at

least 85 percent of nominal prison sentences,

the initiatives in many places to limit prisoners’

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

to advance policies that an opponent might

characterize as soft.

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. 2

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 ...
While there is no doubt widespread support

for policies primarily premised on retributive

notions of deserved and required harsh punishments, that is neither the whole nor a 

consistent story. The burgeoning drug court

movement, for example, is creating new

diversion opportunities for many thousands 

of offenders, and in some jurisdictions eligibility is being extended to increasingly serious

offenses and offenders; increasing numbers 

of offenders who face mandatory prison 

sentences if convicted find themselves being

diverted from prosecution altogether. In many

States, policies have been adopted that aim to

divert many nonviolent offenders from prison

into community-based programs. Similarly—

though this has advanced less far—restorative

and community justice programs in many

places are moving toward dealing with

increasingly serious crimes and offenders.

Creative and ambitious people in many places

are trying new things. Drug courts are one

example. Efforts to incorporate broad-based

community participation into corrections programs and policy setting are another. Efforts

to incorporate restorative and community elements in individual programs or on departmentwide, countywide, or statewide bases 

are still another. In Wisconsin and elsewhere,

practitioners are experimenting with new

forms of indeterminate “risk-based” sentencing. In many places, developments of the past

decade—structured sentencing, recognition

of victims’ interests, and expansion of community and intermediate punishments—are

being extended.

In an effort to shed light on some of the competing conceptions of sentencing and corrections in this country, this paper presents an

overview of the state of indeterminate and

structured sentencing and examines arguments for and against each approach. The

other two current conceptions of sentencing

and corrections—community/restorative and

risk-based—are discussed in two separate

policy briefs in this publication series. 

■ ■ ■

Sentencing and corrections 

in the United States at 

century’s end

Because no single, widely shared vision of

what sentencing and corrections should

be about has emerged to replace indeterminate

sentencing, any effort to describe “American

sentencing and corrections policies” is bound

to be oversimplified and inadequate. A complicated classification might take several factors into account:

■ The retention and scope of discretionary

parole release.

■ The retention and scope of good time.

■ The existence and scope of prison administrators’ authority to release prisoners on furloughs, to house arrest, or to various kinds 

of partial and intermittent confinement.

■ The breadth of mandatory minimum, threestrikes, and truth-in-sentencing laws.

■ The existence of sentencing guidelines and

whether they (1) cover felonies and misdemeanors or felonies only; (2) cover all 

sentences or confinement only; (3) are presumptive, voluntary, or mandatory and, if 

presumptive or mandatory, whether they are

rigorously enforced by the appellate courts 

as in the Federal system or loosely as in

Pennsylvania. 

Once those distinctions are made—and they

understate the range of variation—there

would be no more than a few States in any

category.

The structure of sentencing 

and corrections in the States

No one has attempted a survey of how

American jurisdictions handle sentencing 

and corrections. For one thing, such a survey

would be too complex. No conventional categories or labels encompass all the important

structural differences in the States’ sentencing

and corrections systems. The Bureau of Justice

2 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

Assistance (BJA), U.S. Department of Justice,

has, however, published two recent surveys

that attempt to characterize State sentencing

systems.

Thirty-six States and the District of Columbia

have indeterminate sentencing systems, BJA

reported in its most recent State sentencing

survey.1 The rest had determinate sentencing

systems. BJA’s key test to distinguish between

the two types of systems was whether parole

release remained available for a sizable fraction of cases; the 14 determinate sentencing

States had largely eliminated parole release

(though typically not parole supervision), and

the indeterminate sentencing States had not. 

Using a different organizing scheme, BJA

found there were 5 “statutory determinate

sentencing states” (States where there was no

parole release, and where sentencing standards

were stated in legislation), 30 “indeterminate

sentencing jurisdictions” (States where there

was parole release, and where there were no

sentencing guidelines), 6 “voluntary/advisory

sentencing guidelines states” (voluntary

guidelines with or without parole release),

and 10 “presumptive sentencing guidelines

states” (States with or without parole release

and where presumptive guidelines were

backed by appellate sentence review).2

How the States 

organize corrections

Just as there is no single American approach to

sentencing and corrections, there is no single

approach to the way they are organized. The

principal functions of corrections managers

and the scope of their authority vary widely:

■ A few States, including Delaware, have consolidated corrections systems in which one

State agency has authority for management 

of prisons, jails, probation, and parole (now

vestigial in Delaware); managers in such systems thus have the broadest scope of authority.

■ A few States have partly consolidated systems

in which one State agency has authority for

management of prisons, probation, and

parole but jails are the responsibility of

local—usually county-level—managers.

■ Some States have partly consolidated 

systems in which two State agencies have

authority over State-level functions—for

example, one agency operates prisons and

probation and a second operates parole, or

one operates prisons and a second operates

probation and parole—and local agencies

operate jails.

■ Some States have fragmented systems in

which separate agencies operate State prisons, probation, and parole while local agencies operate jails.

■ Some States have more fragmented systems

in which authority is divided among various

combinations of one to three State agencies;

these coexist with various combinations of

local jail, probation, and parole agencies and,

sometimes, consolidated local community

corrections agencies.

■ Some States have even more fragmented

systems in which separate State and local

agencies have authority over

overlapping functions (for

example, State and local probation systems) or parallel

functions. An example of the

latter is Minnesota, where

some counties have county-level community

corrections agencies while in other counties

the State Department of Corrections performs

those functions.

All this diversity is a challenge and an opportunity. The challenge is to overcome the political and practical barriers to change posed by

such great diversity. The opportunity is that

so many corrections managers have so much

range for innovation and exploration.

■ ■ ■

Indeterminate sentencing

I

t is curious that indeterminate sentencing is

the least discussed, studied, or openly supported of the four conceptions of sentencing

and corrections, since it remains the majority

approach. Why has it survived in so many

places? Possible explanations include inertia

(any existing arrangement creates vested

interests that resist change), efficiency (the

discretion granted officials readily permits

adjustments to accommodate new circumstances), and general satisfaction (prosecutors, judges, and corrections officials may

believe it provides useful tools for achieving

legitimate goals).

Origins and characteristics

Full-blown indeterminate sentencing existed

in every American jurisdiction from the 1930s

to the mid-1970s, at which point Maine and

California became the first to reject core features such as parole release and the idea that

probation ought to be available in nearly

every case.

“Individualization” was the fundamental idea

behind indeterminate sentencing. At every

stage officials needed broad authority to tailor

dispositions to the treatment needs of individual offenders and the public safety risks they

posed. Probation officers were to assert broad

authority over probationers and to help them

find jobs and overcome personal problems,

and they were also to help judges make the

best decisions by preparing comprehensive

diagnostic presentence investigation reports.

Judges needed broad authority to set appropriate sentences; parole boards needed

authority to set release dates and release 

conditions; and prison managers needed

authority to award and deny good time, grant

furloughs, and move prisoners between institutions and programs.

The Model Penal Code, developed in the

1950s, was the high point in the conceptualization of indeterminate sentencing. Although

Sentencing & Corrections 3

there is no single american approach to

sentencing and corrections.
developed for the American Law Institute, an

establishmentarian organization of lawyers,

judges, and law professors, the group that

wrote the Code’s sentencing and corrections

provisions included prosecutors, psychiatrists, mental health specialists, and leading

corrections professionals.

In retrospect, it is almost startling how much

attention in the Model Penal Code was given to

the perceived need to accommodate offenders’

treatment needs and prospects and how little

attention was given to notions of “deserved

punishment,” “just deserts,” or public opinion. The Code’s principal sentencing, parole

release, and good time provisions, set forth 

in the following sections, reflect this.3

Purpose of sentencing. The first official

draft of the Code lists eight “general purposes

of the provisions governing the sentencing

and treatment of the offender.” The first three

are: “To prevent the commission of offenses;

To promote the correction and rehabilitation

of offenders; To safeguard offenders against

excessive, disproportionate or arbitrary punishment.” Nowhere is mention made of

“imposing deserved punishment,” “acknowledging the seriousness of the crime,” “expressing public outrage,” or anything similar. 

Authorized prison sentences. The first 

proposed draft of the Code divided all

felonies into three classes, with the following

authorized minimum and maximum prison

sentences: 

■ First degree: minimum 1 to 20 years; 

maximum life imprisonment.

■ Second degree: minimum 1 to 3 years;

maximum 10 years.

■ Third degree: minimum 1 to 2 years; 

maximum 5 years.

Supporting commentary explains that “it is

desirable that the court play a substantial role

in sentencing, with authority not only to determine whether the defendant should be sentenced to imprisonment but also to exercise

some influence upon its length.” It then points

out that proposals to shift all authority over

sentence length to a treatment board or corrections administrators were “considered at

length” before being rejected. 

Authorized probation sentences. In the

first proposed draft, judges were authorized

to sentence any person to probation when the

judge “deems that his imprisonment is unnecessary for protection of the public.” The commentary explains that the draft language “is

based upon the view that suspension of sentence or probation may be appropriate dispositions on conviction of any offense” (emphasis

added) unless a mandatory sentence of death

or life imprisonment is prescribed.

Reconsideration of sentences. The first

proposed draft made every prison sentence

“tentative” for the first year and authorized

the corrections commissioner to petition for

resentencing. The commentary explains why:

Judges have limited opportunity to study the

offender, and corrections officials may later

decide that the judge “proceeded on the basis

of misapprehension as to the history, character, or physical or mental condition of the

defendant.”

Good time. Prisoners were to receive 6 days’

good time for each month served on good

behavior, and corrections officials could

award another 6 days per month for “especially meritorious behavior or exceptional

performance of his duties,” according to the

Code’s first proposed draft. The good time

credits would apply to (and thus advance)

both the minimum term before parole release

eligibility and the maximum term before

mandatory release.

Parole release. The first official draft made

prisoners eligible for parole release on completion of their minimum sentences less any

applicable good time and created a presumption that prisoners would be released when

they first become eligible.

Public sentiment. Although neither the first

nor the final proposed drafts contained provisions for mandatory sentences or probation

ineligibility (except concerning life sentences

and the death penalty), the final draft implicitly

acknowledged that public reaction might

sometimes be relevant in setting sentences. 

In language creating a presumption against

imprisonment and for probation in every case,

the final draft included a new provision: “A

lesser sentence will depreciate the seriousness

of the defendant’s crime.” It was among the

reasons for disregarding the presumption and

ordering a term of imprisonment. A similar

provision about the seriousness of the crime

was added to a list of considerations that

might justify disregarding the presumption

that prisoners would be released when first

eligible for parole. 

David Rothman, the leading historian of

American corrections institutions, explains

that indeterminate sentencing policies, as

they developed from the mid-19th century

onward, and the underlying beliefs leading

to their adoption, were based on two widely

held views. First:

An environmental interpretation of

crime made a mockery of personal 

culpability. No one who was raised in a

slum could be held strictly accountable

for his actions. The wretchedness of the

social setting was so great that responsibility could not be assigned in uniform

and predictable fashion. Elemental fairness dictated that the offender be treated as an individual. It was not merely a

sensible and effective principle, but a just

one. Any other method was vengeful.4

Second, Rothman notes, beginning in the

1920s and 1930s, psychological explanations

of criminality began to be embraced. Both

these beliefs—the environmental and the psychological—lent themselves to individualized

sentencing and corrections policies, since their

treatment implications depended on the par4 Sentencing & Corrections 4 Sentencing & Corrections
Sentencing & Corrections 5

ticular environmental conditions or psychological problems affecting individual offenders.

Rothman reports that life seldom comported

with theory and that treatment programs were

seldom as available, generous, or effective 

as rhetoric suggested they should have been.

He also suggests—as the title of his book,

Conscience and Convenience, reveals—that

the administrative convenience and autonomy

that indeterminate sentencing granted judges

and corrections officials (“Convenience”) was

as important a source of its endurance and

widespread support as were the humane 

principles (“Conscience”) on which it was

nominally premised.

By the mid-1970s, many of the rationales and

practices of indeterminate sentencing began to

be challenged. Civil rights and prisoners’ rights

activists claimed that broad discretion produced arbitrary and capricious decisions and

that racial and other invidious biases influenced officials.5 Research findings cast doubt

on the effectiveness of rehabilitative treatment

programs.6 Proceduralists urged that broad,

standardless discretion denied constitutional

due process.7 Conservatives argued that broad

discretion permitted undue leniency and

undermined the deterrent effects of sanctions.8

Others argued that a system that did not tailor

punishment to culpability was unjust.9

Positive attributes

Indeterminate sentencing must have properties that are valued. Why else has it survived

in so many places? What is considered “positive,” however, inevitably varies with the identity

of the evaluator. A number of claims (some of

them inconsistent with others) can be made

in favor of indeterminate sentencing, although

no single individual is likely to subscribe to

all of them.

Sentencing as a human process. Indeterminate sentencing acknowledges that every

human being is a unique bundle of attributes

and experiences; that rigid policies often cannot take into account meaningful differences

among cases; and that dispositions are most

likely to be just and appropriate when they

are tailored to the nature of the crime, its

effects on the victim, and the characteristics

of the offender.

Rehabilitation as a goal. Indeterminate

sentencing views human beings as malleable

and redeemable and, accordingly, allows

maximum scope for efforts to

provide services to offenders

and to expose them to opportunities for self-improvement

and advancement. Recognizing

rehabilitation as a goal aids

institutional managers because it justifies public investment in a wide range of programs

and services that help keep prisoners active

and maintain prisoner and staff morale.

Public safety as a goal. Indeterminate sentencing allows judges and corrections officials

routinely to take public safety considerations

into account when making decisions about

individual offenders. Decisions about parole

release can take account of offenders’ risk

profiles, and decisions about probation conditions, supervision, and revocations can be

fine-tuned to the particular risks individual

offenders present and the temptations they face.

Delegation of authority. Indeterminate sentencing places decisionmaking authority in

the hands of officials who are in direct contact with the offender and his or her circumstances. This parallels developments in the

private sector, where in recent years shifting

authority downward—as close to the customer as possible—has commonly come to

be seen as desirable. The closer decisionmaking is to individual customers (or prisoners), the less likely it is that decisions will be

based on inaccurate or incomplete information or stereotypes.

Professionalization. Indeterminate sentencing

assumes that judges and corrections officials

have specialized knowledge and experience

that can be used to design effective programs,

control risks to the public, and aid in offender reform. The satisfaction, professional 

self-esteem, and effectiveness of corrections

officials are probably enhanced as a result.

Insulation from public emotion. Indeterminate sentencing removes the important

decisions about individual offenders from

public attention. Trials (or arraignments and

guilty pleas) take place in public and can easily

be reported in the mass media, but decisions

about parole release and good time are made

in settings where public attention is much less

likely to be focused. Especially for notorious

crimes or for behaviors temporarily receiving

heightened attention, this enables judges to

announce sentences that appear to be harsh

when public passions are aroused but allows

parole and corrections officials later on to finetune sentences after these passions have abated.

Administrative efficiency. Indeterminate

sentencing allows corrections managers to

deal with problems of overcrowding or with

changes in resource allocation by adjusting

policies governing award of good time, setting

of parole release dates, or releasing offenders

on furloughs or to intermittent or partial 

confinement.

Disadvantages

What is negative is also in the mind of the

observer, so the criticisms of indeterminate

sentencing, like the positive values attributed

to it, are sometimes inconsistent. 

Disparities. A principal criticism of indeterminate sentencing is that it too often results in

stark differences in sentences for people who

have committed similar crimes, and these 

disparities often result more from differences

in the values, beliefs, and personalities of the

judges or parole board members than from

Sentencing & Corrections 5

indeterminate sentencing views human 

beings as malleable and redeemable.
differences among offenders.10 Proponents of

indeterminate sentencing might respond that

while it is undesirable that different sentences

result from caprice or idiosyncrasy, there is

nothing inherently wrong if offenders convicted of the same crimes receive different sentences when this is justified by their respective

risk profiles or treatment needs. 

Bias and stereotypes. A second recurring

criticism is that the broad discretion accorded judges and corrections officials gives too

much rein to their conscious biases or

unconscious stereotyping. Offenders whose

lives and backgrounds are far removed from

officials’ personal knowledge and experience

might receive less empathy and understanding

than those with whom officials have more in

common.

Inadequate implementation. Some critics

argue that corrections systems seldom if ever

carry through on the implied promises of indeterminate sentencing. Vocational training is

often not relevant to the job market. Psychiatric,

psychological, and medical services often are

of low quality. Funds are seldom sufficient to

provide a rich array of services tailored to

offenders’ needs in prison or in the community. During the height of indeterminate sentencing, many American prisons were squalid,

brutal places.

Deserved punishments. An additional criticism is that indeterminate sentencing severs

the link between seriousness of crime and

severity of punishment. This is not quite the

same criticism as the one leveled at disparities, since severity of offense is only one way

in which sentences can be disparate (or comparable). For example, disparities might be

measured in terms of treatment needs or risk

assessments. The “deserved punishment” 

criticism holds that people should receive

particular punishments and that anything less,

in the Model Penal Code’s phrase, “depreciates the seriousness of the crime.” Put more

colloquially, a “coddling criminals” complaint

has regularly been lodged against indeterminate sentencing since its beginnings. 

Public sentiment. Some critics contend that

indeterminate sentencing allows the “behindclosed-doors” decisions of judges and others

to frustrate realization of the

public’s (or elected officials’)

views. This criticism is the converse of the “positive” attribute

discussed above—that indeterminate sentencing insulates

decisions about individuals’

lives from the influence of short-lived 

passions and political pressures.

Treatment effectiveness. No list like this

one would be complete without mention of

the widely adopted “nothing works” point of

view. In retrospect it is clear that such claims

were often overblown, and that subsequent

research justified greater optimism about 

the effectiveness of some kinds of treatments

for some kinds of offenders. Nonetheless, if 

“tailoring sentences to offenders’ rehabilitative

needs” was traditionally a major rationale for

indeterminate sentencing, the widely shared

perception that treatment was seldom effective presented a major challenge.

Compatibility with community/

restorative sentencing

To many people today, some of the “positive

features” of indeterminate sentencing have 

an antiquated quality, while many of the 

“criticisms” represent influential contemporary ideas. Thus it is strange that a majority of

the States still have sentencing and corrections

systems that can fairly be described as indeterminate. Possible reasons for retaining these

systems—inertia, hypocrisy, managers’ selfinterest—were mentioned earlier. However,

other qualities may also be important. These

include, notably, the focus of indeterminate

sentencing on the offender as a unique individual, the administrative flexibility it provides

managers, and its relatively light focus on disparities measured solely in terms of crimes

and criminal histories. These qualities make

indeterminate sentencing potentially more

reconcilable with community/restorative 

sentencing and risk-based sentencing than is

structured sentencing, with its emphases on

detailed rules, “certain” punishments, and

public accountability.

■ ■ ■

Comprehensive 

structured sentencing

For much of the past two decades, it

appeared that structured sentencing

would gradually replace indeterminate sentencing, but this now looks less likely. Although

these sentencing guidelines systems can achieve

many of their creators’ goals, they cannot easily encompass newer goals, especially those of

community/restorative and risk-based 

sentencing. 

Structured sentencing has developed incrementally, beginning with unsuccessful pilot

projects to develop voluntary sentencing

guidelines. They were typically developed by

academic consultants supported by Federal

grants, working under the general oversight

of committees of judges.11 Their goal was to

document the main tendencies in past sentencing patterns and to restate those patterns

in nonbinding guidelines. The rationale was

that judges are protective of their sentencing

discretion and will oppose creation of binding

guidelines and resist any that are developed, but

they might be influenced by voluntary guidelines

developed under judicial oversight. This rationale was undermined by evaluation research

that revealed that voluntary guidelines had no

discernible effects on sentencing patterns. 

Between 1975 and 1985, voluntary guidelines

were developed in many States, usually at

6 Sentencing & Corrections 6 Sentencing & Corrections

a “coddling criminals” complaint has

regularly been lodged against indeterminate sentencing since its beginnings.
Sentencing & Corrections 7

county- or judicial-district levels but sometimes at State levels (for example, Maryland,

Delaware, Utah, Florida, Massachusetts, New

Jersey, Michigan, and Wisconsin). A few States

(for example, Virginia, Arkansas, and Missouri)

adopted them as late as the 1990s. Most of

the local-level guidelines and many of the

original State-level guidelines were long ago

abandoned.

The next step was State-level presumptive

guidelines, so called because they are based

on the presumption that cases should be handled in accordance with applicable guideline

ranges. Under such systems, judges can impose

other sentences but are required to cite their

reasons for doing so, and parties to the case

can appeal the adequacy of these reasons in

high courts. Minnesota led the way with a

three-part strategy consisting of creation of a

permanent sentencing commission, promulgation by the commission of presumptive

guidelines, and establishment of appellate

sentence review to ensure that trial judges

departed from guidelines only in appropriate

cases. The initial guidelines that took effect in

1980 set presumptive standards for prison

sentences received for committing felonies. 

The Minnesota presumptive guidelines achieved

their primary goals: Judges followed them in 

a large majority of cases; sentencing disparities were reduced in general and in relation

to race, gender, and geographic area; and

appellate courts developed case-law standards

for the allowable scope of and grounds for

departures. What is more, a policy decision

tying sentencing standards to available prison

capacity was made, thereby making Minnesota

one of a handful of States to escape severe

prison overcrowding in the 1980s.12

Since these initial guidelines took effect, the

evolution of structured sentencing has consisted of subsequent steps that one by one

fleshed out the Minnesota approach:

■ Felonies and misdemeanors. Minnesota

created guidelines for felonies only (as did

Washington and Oregon, other early presumptive guidelines States); Pennsylvania,

North Carolina, and the Federal system covered misdemeanors as well.

■ Prisons and jails. Minnesota set standards

for sentences to confinement in State prisons

only; Pennsylvania, Oregon, the Federal system,

and North Carolina set standards for jail sentences as well.

■ Confinement and nonconfinement 

sentences. Minnesota, Washington, Oregon,

and the Federal system (and, initially,

Pennsylvania) set no standards for nonconfinement sentences; more recently, North

Carolina, Pennsylvania (in 1994), and Ohio

established standards for nonconfinement

guidelines. Other States in the process of

developing guidelines (Massachusetts, for

example) are following suit.

■ Community corrections funding.

Recognizing that guidelines for nonconfinement sentences are unlikely to be followed 

or effective unless there are

credible programs to receive

offenders, North Carolina coupled development of guidelines

with enactment of a community corrections act that appropriated money to be distributed

to counties to establish and

operate county-level corrections programs.

Pennsylvania followed suit when it revised its

guidelines in 1994. Ohio did likewise, and

new sentencing commissions appear to view

community corrections funding as an essential accompaniment of their proposals.

■ Legal force. Minnesota’s guidelines were

presumptive. Although most of the guidelines

developed later (Pennsylvania, Washington,

Oregon, Kansas, Ohio) were also presumptive, North Carolina and the Federal sentencing commission made their guidelines even

more restrictive. Each adopted “mandatory”

guidelines (an oxymoron?) and attempted to

prevent judges from imposing sentences other

than as guidelines prescribed.

If Minnesota was the exemplar of structured

sentencing as it existed in 1980, North Carolina

is the exemplar in the late 1990s. Although not

all guidelines States have presumptive guidelines, most features of the evolved approach

are being emulated: using projection models

to link sentencing policy with corrections

resources; setting standards for prison, jail,

and nonconfinement sentences; and promoting creation of local community corrections

programs and State funding to pay for them.

Strengths

The success of structured sentencing is partly

due to the fact that it has served the different

policy goals of the 1970s and the 1990s. In

Minnesota, Washington, and Oregon, the primary 1970s goals were to reduce sentencing

disparities and the possibility of gender or

racial bias, and to achieve a form of “truth in

policymaking” by tying sentencing policies to

corrections spending policies. In most of the

early guidelines States (Pennsylvania being 

an exception), increasing sentencing severity

or reducing crime rates were not seen as 

primary goals.

By contrast, many of the newer guidelines 

systems were developed with just such aims.

Voluntary guidelines in Virginia, for example,

are expressly based on the premise of incapacitation as a goal and attempt to incorporate

research findings on selective incapacitation

and criminal careers. Such guidelines provide

a mechanism for enhancing the likelihood

that judges will impose harsher sentences,

and tying policy to corrections capacity is 

a way to manage the fiscal consequences of

the new policies. The evidence from North

Carolina is that guidelines appear to be successful at achieving these 1990s goals.

Sentencing & Corrections 7

the success of structured sentencing

is partly due to the fact that it has

served the different policy goals of

the 1970s and the 1990s.
Whether they reflect the goals of the 1970s or

1990s, well-designed and implemented structured sentencing systems arguably possess the

following strengths:

Set and change sentencing policies.

Guidelines enable policymakers to establish

and change sentencing policies. Of course, 

no policy is ever implemented exactly as its

authors intended. Practitioners often resist

new policies they disagree with and, to varying degrees, manipulate and circumvent them.

Nonetheless, at least in the 1980s and 1990s,

having structured sentencing systems has

enabled jurisdictions to successfully alter sentencing patterns. In North Carolina, for example, the goals were to increase the likelihood

that many serious offenders would receive

prison sentences and to lengthen their prison

terms. Both goals were achieved the first year,

with 100 percent of those convicted of the

target crimes going to prison. Another North

Carolina goal was to free up needed prison

beds by diverting people convicted of less

serious offenses to intermediate and community punishments. This goal too was met, and

the percentage of nonviolent offenders sentenced to State prisons plummeted.

Project and regulate prison space needs.

Guidelines enable policymakers to make

responsible decisions about construction,

operation, and financing of prisons. Experience in the 1980s with the Minnesota,

Washington, and Oregon guidelines showed

that “capacity constraints” can work, and the

North Carolina experience with more complete and comprehensive guidelines in the

1990s confirms this. Recent projections show

that North Carolina prisons will operate below

capacity through 2007.

Reduce sentencing disparities. Guidelines

enable policymakers to reduce the extent of

unwarranted racial, ethnic, gender, and geographical disparities in sentencing.

Provide impetus for community corrections funding. Guidelines provide a politically

credible basis for proposals for State funding

of local corrections programs. Since probation

and other community-based programs have

long been notoriously underfunded and typically are the first target of budget cuts and

reallocations, guidelines have the effect of

enhancing the funding, scope, and programmatic richness of community corrections. 

The North Carolina, Pennsylvania, and Ohio

sentencing commissions have all achieved

conspicuous success at using structured sentencing to leverage increased State investment. 

Other arguments can be made for structured

sentencing. The sentencing commissions have

created institutional capacities, previously

lacking in many States, for projecting the

effects of proposed changes in sentencing

policy. In a number of States, the commissions are regularly called on to perform that

service. Similarly, the commissions have created a cadre of State sentencing policy experts

where none existed before. 

Disadvantages

Criticisms of structured sentencing are based

on two concerns: that it has insufficiently realized its potential and that current initiatives

need to be extended and perfected; and that 

it has gone too far and made sentencing too

impersonal and mechanical.

Unfulfilled promise. If it were clear that current trends toward comprehensive structured

sentencing were desirable, a number of as-yetincomplete tasks could be identified for this

system. Because a kind of inertia sets in after

a State makes major changes in sentencing

laws, many States have sentencing systems

that are locked, like flies in amber, at an 

earlier developmental stage. Minnesota,

Washington, and Oregon, for example, after

years of trying to create guidelines for intermediate punishments (and in Oregon, guidelines for misdemeanors), failed to do so.

Other States (Maryland, for example) retain

voluntary guidelines systems that few believe

significantly constrain judges’ decisions in

individual cases. Even the current bellwether

States of North Carolina, Pennsylvania, and

Ohio have not succeeded in catalyzing the

development and funding of sufficiently ample

community corrections programs, and none

has so far managed to devise policies governing

choices among intermediate or community

punishments. 

Dehumanization. The second criticism of

structured sentencing is more basic: that sentencing until recently was and in the future

should be a “human process,” and that much

structured sentencing flies in the face of that

vision. Nearly every nonpartisan expert body

that has considered the desirability of mandatory sentencing laws has urged either their

rejection or their limitation to a tiny fraction

of the most serious cases. Yet every State

adopted mandatory minimum sentencing laws

in the 1980s and 1990s, and both the Federal

and North Carolina guidelines are described

by their developers as “mandatory”; judges

must impose the mandatory sentence whether

or not on the facts of a particular case it

appears just or called for. Many judges have

long opposed guidelines and mandatory sentencing laws because their rigidity can result

in injustices in individual cases. As structured

sentencing becomes more comprehensive,

these problems will steadily worsen.

Worries

Comprehensive structured sentencing raises

worrisome issues about the roles of corrections officials, the scope for incorporating

key elements of community/restorative and

risk-based sentencing, the politicization of

sentencing policy, and the quality of justice

delivered to criminal defendants.

Diminishing corrections officials’ roles.

The implications of structured sentencing are

different for officials who operate prisons and

those who operate probation agencies and

community programs. Prison managers could

8 Sentencing & Corrections 8 Sentencing & Corrections
Sentencing & Corrections 9

become little more than operators of human

warehouses. As structured sentencing coupled

with truth-in-sentencing and its “85 percent”

rule becomes more pervasive, many prison

managers may find that: 

■ They lack the resources needed to operate

meaningful rehabilitative and other programs

inside the facility.

■ They have lost the discretion to furlough

prisoners or release them to halfway houses

or to other forms of intermittent or partial

confinement including house arrest. 

American corrections since the founding of

the American Correctional Association has

always encompassed commitments to help

offenders learn how to live satisfying, lawabiding lives. But current sentencing trends

threaten to impoverish the functions and the

vision of correctional managers and make

American prisons uniquely bleak and inhumane places.

Managers who work with probation and community penalties will face the challenge of

finding the funding and the political authority

to create and operate value-adding programs.

There is, of course, a possibility that the status

and authority of community corrections managers will be enhanced if structured sentencing expands, but, if past experience is any

guide, they will find it difficult to obtain new

funds and retain old funds in the next economic downturn. Even in the expanding economy of the mid-to-late 1990s, community

corrections managers have nowhere obtained

adequate funding to operate the programs

that are needed. 

Constraints on development of programs.

Many newly developing community, restorative,

and rehabilitative programs (including drug

courts, drug treatment programs, and sex

offender treatment programs) are beginning

to target more serious categories of offenders.

These can include people charged with

assaults, sex crimes, minor robberies, and

street-level drug trafficking. Such people are,

in many jurisdictions, supposed under presumptive or mandatory guidelines to be sent to prison for a

fixed term. If judges and prosecutors comply with the guidelines, offenders for whom

enrollment in these programs

is appropriate will be sent to

prison. As a consequence,

program development will be stunted.

If judges and prosecutors ignore or circumvent applicable guidelines, there will be

increased risks that:

■ The justice system will lose credibility.

■ Arbitrary and idiosyncratic decisions will be

made to divert certain offenders and not others.

■ Decisions will be made on the bases of

conscious bias or unconscious stereotypes.

Continued politicization. Reduction of sentencing standards to simple numerical formulas may provide an irresistible temptation to

adopt symbolic policies in pursuit of short-term

political goals. As Franklin Zimring observed

in the early days of determinate sentencing, 

if sentencing standards can be expressed as

numbers written on a blackboard, all that is

needed to change them is an eraser and the

political will.13 This is essentially what happened repeatedly in California since enactment

in 1976 of the Uniform Determinate Sentencing

Law. It happened even in liberal Minnesota

where, in 1990—with one stroke—the 

presumptive lengths of all prison sentences

were doubled. Reasonable people can differ

about the appropriateness of particular sentencing standards, but a process that facilitates

impulsive changes is unlikely over time to

produce good policies.

Diminution in the quality of justice. A

fourth worry is a corollary of those discussed

above and reiterates the recurring criticisms

by judges and others of determinate and

structured sentencing. Guidelines typically

reduce authorized sentencing criteria solely 

to the offender’s crime and to some measure

of his or her criminal history; mandatory sentencing laws typically base sentences only on

the offender’s crime, thereby reducing sentencing criteria to one or two dimensions. Yet

human beings—offenders, judges, and prosecutors alike—are multidimensional creatures,

and thus considerations other than simply the

crime and the criminal history are often relevant to determining the most appropriate disposition in a particular case. To the extent that

structured sentencing prevents judges and

lawyers from doing what is just, the overriding

purpose of the justice system is undermined.

■ ■ ■

The other conceptions of 

sentencing and corrections

I

n some respects this document may be misleading. It begins by suggesting that there

are four contending conceptions of sentencing

and corrections and emphasizes the diversity

of American approaches to sentencing and

corrections, but it focuses on only two of the

four—indeterminate and structured sentencing—elaborating the contrasts between them.

Most likely, diversity is the more important

characteristic. Other documents in this series

of publications from the Executive Sessions

on Sentencing and Corrections focus on the

other conceptions—community/restorative

and risk-based sentencing.14

How sentencing and corrections in the United

States will evolve remains to be seen. The next

25 years are likely to witness at least as much

change as have the past 25.

Sentencing & Corrections 9

reduction of sentencing standards to

simple numerical formulas may provide

an irresistible temptation to adopt symbolic policies in pursuit of short-term

political goals.
Notes

1. Bureau of Justice Assistance, 1996 Survey of

State Sentencing Structures, BJA Monograph,

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

September 1998, NCJ 169270. The figures 

reported are as of February 1996. 

2. Bureau of Justice Assistance, National

Assessment of Structured Sentencing, BJA

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

Justice, February 1996, NCJ 153853. The figures

reported are as of 1994. 

3. Model Penal Code (Tentative Draft No. 2),

Philadelphia: American Law Institute, 1954;

Model Penal Code (Tentative Draft No. 5),

Philadelphia: American Law Institute, 1956; 

Model Penal Code (Proposed Final Draft No. 1),

Philadelphia: American Law Institute, 1961. 

4. Rothman, David J., Conscience and

Convenience: The Asylum and Its Alternatives 

in Progressive America, Boston: Little, Brown,

1980: 553–554.

5. American Friends Service Committee, Struggle 

for Justice: A Report on Crime and Punishment 

in America, New York: Hill and Wang, 1971.

6. Martinson, Robert, “What Works?—Questions

and Answers About Prison Reform,” Public

Interest 35 (2) (1974): 22–54.

7. Davis, Kenneth Culp, Discretionary Justice: A

Preliminary Inquiry, Baton Rouge, LA: Louisiana

State University Press, 1969; and Frankel, Marvin

E., Criminal Sentences: Law Without Order, 

New York: Hill and Wang, 1972.

8. Van den Haag, Ernest, Punishing Criminals:

Concerning a Very Old and Painful Question,

New York: Basic, 1975; and Wilson, James Q.,

Thinking about Crime, New York: Basic, 1975.

9. Morris, Norval, The Future of Imprisonment,

Chicago: University of Chicago Press, 1974; and

Von Hirsch, Andrew, Doing Justice: The Choice of

Punishments, New York: Hill and Wang, 1976.

10. Blumstein, Alfred, Jacqueline Cohen, Susan E.

Martin, and Michael Tonry, eds., Research on

Sentencing: The Search for Reform, Washington,

DC: National Academy Press, 1983.

11. Gottfredson, Don M., Leslie T. Wilkins, and

Peter B. Hoffman, Guidelines for Parole and

Sentencing, Lexington, MA: Lexington Books, 1978.

12. Knapp, Kay A., The Impact of the Minnesota

Sentencing Guidelines: Three-Year Evaluation, 

St. Paul, MN: Minnesota Sentencing Guidelines

Commission, 1984.

13. Zimring, Franklin, E., “Making the Punishment

Fit the Crime: A Consumer’s Guide to Sentencing

Reform,” Hastings Center Report 6 (1976): 13–21. 

14. These documents are, respectively,

Incorporating Restorative and Community

Justice Into American Sentencing and

Corrections, by Leena Kurki, 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, NCJ 175723;

and Reforming Sentencing and Corrections for

Just Punishment and Public Safety, by Michael

E. Smith and Walter J. Dickey, 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, NCJ 175724.

An overview of the current state of sentencing and

corrections in the United States is presented in 

the first paper in this series, Fragmentation of

Sentencing and Corrections in America, by

Michael Tonry, 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, NCJ 175721.

10 Sentencing & Corrections 10 Sentencing & Corrections

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 175722
Sentencing & Corrections 11

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

The Executive Sessions on Sentencing and Corrections 

Convened the following distinguished panel of leaders in the fields: