Substantive criminal law not only defines what behaviors are crimes but also the law that determines the permissible punishment for the criminal behavior. All three governmental branches of government impact criminal punishment. One of the most important duties of a judge is to impose a sentence which means determining the appropriate punishment for an offender upon conviction. Thus, punishing offenders is a judicial function. Because of the trend toward mandatory sentencing, discussed below, much of the discretion of sentencing has been removed from judges and placed on the prosecutors in their screening and charging decision-making. As such, punishing offenders may rightly be considered an executive function. Finally, the lengths of sentences and types of punishment that attach to the various crimes are a product of the legislative process. In the last 30 years, through ballot measures such as propositions, referendums, and initiatives, the people have played a large role in deciding the types and lengths of punishment.

4.9.1 Incarceration/Confinement Sentence

Confinement sanctions include incarceration in prisons and jails, incarceration in boot camps, house arrest, civil commitment for violent sexual offenders, short-term shock incarceration, electronic monitoring, etc. Most believe that confinement is the only effective way to deal with violent offenders. Although people question the efficacy of prison, incarceration somewhat protects society outside the prison from dangerous offenders. Prison is effective at incapacitation but rarely is it effective at rehabilitation. In fact, serving time in prison often reinforces criminal tendencies.

State and federal approaches to incarcerating individuals have shifted in response to prevailing criminal justice thinking and philosophy. Over time, governments have embraced four different approaches to sentencing offenders to incarceration: indeterminate, indefinite, determinate, or definite. Criminal codes may incorporate more than one single approach. These approaches can be seen as a spectrum of judicial discretion. Indefinite and indeterminate sentences, at one end, are those that allow judges and parole boards the most discretion and authority. Determinate and definite sentences, at the other end, allow little or no discretion. Currently, most states are following determinate sentencing coupled with sentencing guidelines, mandatory minimums, habitual offender statutes, and penalty enhancement statutes.

4.9.1.1 Indeterminate-Indefinite Sentencing Approach

For much of the twentieth century, statutes commonly allowed judges to sentence criminals to imprisonment for indeterminate periods. Under this indeterminate sentencing approach, judges sentenced the offender to prison for no specific time frame and the offenders’ release was contingent upon getting paroled, or rehabilitated. Because some criminals would quickly be reformed but other criminals would be resistant to change, indeterminate sentencing’s open-ended time frame was deemed optimal for allowing treatment and reform to take its course. The decline of popular support for rehabilitation has led most jurisdictions to abandon the concept of indeterminate sentencing. Indefinite sentences give judges discretion, within defined limits, to set a minimum and maximum sentence length. The judge imposes a range of years to be served, and a parole board decides when the offender will ultimately be released.

4.9.1.2 Determinate-Definite Sentencing Approach

Under determinate sentencing, judges have little discretion in sentencing. The legislature sets specific parameters for the sentence, and the judge sets a fixed term of years within that time frame. The sentencing laws allow the court to increase the term if it finds aggravating factors, factors indicating the offender or offense is worse than other similar crimes, and reduce the term if it finds mitigating factors, factors indicating the offender or offense is less serious than other similar crimes. With determinate sentencing, the defendant knows immediately when he or she will be released. In determinate sentencing, offenders may receive credit for time served while in pretrial detention and “good time” credits. The discretion that judges are allowed in initially setting the fixed term is what distinguishes determinate sentencing from definite sentencing.

Definite sentencing completely eliminates judicial discretion and ensures that offenders who commit the same crimes are punished equally. The definite sentence is set by the legislature with no leeway for judges or corrections officials to individualize punishment. Currently, no jurisdiction embraces this inflexible approach that prohibits any consideration of aggravating and mitigating factors in sentencing. Although mandatory minimum sentencing embraces some aspects of definite sentencing, judges may still impose longer than the minimum sentence and therefore retain some limited discretion.

4.9.1.3 Presumptive Sentencing Guidelines

In the 1980s, state legislatures and Congress, responding to criticism that wide judicial discretion resulted in greater sentence disparities, adopted sentencing guidelines drafted by legislatively-established commissions. Guideline sentencing allows for judicial discretion but at the same time, limits that discretion. Judges must generally make findings when sentencing the offender to a term of incarceration that is different from the presumptive sentence. The judge must indicate which aggravating factors or mitigating factors informed the departure. The Sentencing Reform Act of 1984 (18 U.S.C.A. §§ 3551 et. seq. 28 U.S.C.A. §§991-998) first established federal sentencing guidelines. The Act applied to all crimes committed after November 1, 1987, and its purpose was “to establish sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes.” Scheb, at 681. It created the United States Sentencing Guideline Commission and gave it the authority to create guidelines.

The Commission dramatically reduced the discretion of federal judges by establishing a narrow sentencing range and required that judges who departed from the ranges state in writing their reasons. The Act also established an appellate review of federal sentences and abolished the U.S. Parole Commission. Most states have adopted some version of sentencing guidelines, from the very simple to the very complex, and many states restrict their guidelines to felonies. Although limiting judicial discretion, state sentencing guideline schemes allow some wiggle room if the judge finds that the case differs from a typical case. See Apprendi v. New Jersey, 530 U.S. 466 (2000); United States v. Booker-United States v. Fanfan, 543 U.S. 220 (2005); Blakeley v. Washington, 542 U.S. 296 (2004).

4.9.1.4 Other Mandatory Sentences-Penalty Enhancements

Legislatures have also exercised their authority over sentencing by passing laws that enhance criminal penalties for crimes against certain victims, for crimes done with weapons, or for hate crimes. For example, Congress passed the Violent Crime Control and Law Enforcement Act of 1994 that included several provisions for enhanced penalties for drug trafficking in prisons and drug-free zones. States have passed gun enhancements and hate crime enhancements. See, e.g., ORS 161.610 (authorizing enhanced penalties for the use of a firearm during the commission of a felony); Wisconsin v. Mitchell, 508 U.S. 486 (1993) (authorizing enhanced penalties for hate crimes).

4.9.1.5 Concurrent and Consecutive Sentences

Frequently, judges sentence defendants for multiple crimes and multiple cases at the same sentencing hearing. Judges have the option of running terms of incarceration either concurrently (at the same time) or consecutively (back-to-back). States vary as to whether the default approach on multiple sentences is consecutive sentences or concurrent sentences.