I am posting most of Tom McGee’s response to the recent post on Truth in Sentencing for your consideration. Please see comment section from Monday for his full comments, well worth your time.
Tom says we need to discriminate between provocations that are determinate, such as criminal conduct during an offense, and indeterminate ones such as the future risk a defendant poses -- at points that may be far in the future (after years of service on a long sentence, for example). See my comments to #4 below.
“Clearly, sentences should be both determinate and indeterminate. Here are just some of the advantages of doing so:
“1. Good time and program participation credit could be applied to the determinate part of an offender’s sentence. Plea-bargaining should be limited in the same way. Offenders would still have an incentive, but this will not affect the public’s safety by forcing a premature reduction in the level of restraint imposed.
“2. Policy makers should decide how much risk is tolerable, under specified circumstances, just as they decide the extent to which offenders should be held accountable.
“3. Amalgamated sentencing systems invite sentencing double talk, which is a form of demagoguery. Differentiating between provocations and the responses to each has the advantage of breaking the policy making process into bit sized chunks, where each policy can be addressed rationally on its own terms. It also provides a means for managing the system incrementally, taking costs into consideration.
“4. There is not reason at all to treat juveniles and adults differently as to risk (indeterminate). But juveniles may be held to a lower accountability standard (determinate), graded perhaps by age. Juveniles are simply less mature and culpable than adults, but may be just as dangerous, or even more so.
“5. Decision-makers will find it easier to describe their sentencing judgments.
“6. All participants will find it easier to understand precisely how decision-makers arrive at their judgments.
“7. Appellate courts will find it easier to review sentencing judgments by the lower courts and determine whether they were reasonable.”
I would like to link Tom’s point #4 to a story Doug Berman provides in Sentencing Law and Policy here. The story notes that Virginia judges more frequently mitigate sentences for young offenders than older ones, despite the higher average risk that young offenders pose. Tom’s point, that there are both indeterminate and determinate considerations, and that in a determinate system judges are asked to make both at the point of the sentencing hearing, is food for thought, don’t you think? As always, thanks Tom.