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November 15, 2011

"Prevention as the Primary Goal of Sentencing: The Modern Case for Indeterminate Dispositions in Criminal Cases"

The title of this post is the title of this notable new piece by Professor Christopher Slobogin, which is now available via SSRN. Here is the abstract:

Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral.  This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so.

More specifically, the position defended in this Article is that, once a person is convicted of such an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within very broad ranges set by the legislature.  The territory covered in this Article, particularly as it addresses the debate between deontological retributivists and utilitarians, is well-trodden.  But this Article seeks to provide new perspectives on the morality, legality, and practicality of indeterminate sentencing.  It starts with an outline of what a properly constituted indeterminate sentencing regime would look like.  It then defends this regime against numerous objections.

I have always been a huge fan of Christopher Slobogin's work, and I expect this latest piece will only deepen my fandom.

November 15, 2011 at 04:29 PM | Permalink


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Not much expertise or future forecasting in 123D. Just count to 3. Even a lawyer can do that. 10,000 executions a year, with a decrease of that amount in murders, and the virtual eradication of crime because of the attrition of the repeat offender and the intimidation of the casual criminal.

Real estate values shoot up by 40%. Security costs drop to nearly zero. The prisons are empty of both prisoners and government make work employees. Because the first 15,000 executions are of the lawyer hierarchy, the public interest soars, and the economy grows at 10% a year, solving all fiscal problems. The efficiency from the level of trust engendered by the absence of crime contributes to the growth rate. The lawyer predator is suppressed and excluded from all policy decisions. The $trillion taken by the CCE is shifted to research, development, the arts, things that make civilization and life worth living.

There are half as many lawyers. They makes four times as much as today due to their great value to the public. They are held in 10 times the public esteem for providing an essential utility product, the rule of law.

Posted by: Supremacy Claus | Nov 15, 2011 6:03:28 PM

Sooooo, reinstitute parole? Cause, yeah, THAT'S worked so well EVERYWHERE!!!!!

Posted by: anon | Nov 15, 2011 6:03:43 PM

Let's assume that Mr. Slobogin's views work in theory . . . . in practice they certainly don't. I don't see why we risk the victimization of innocent people for the sake of criminals. And there's one huge flaw in Mr. Slobogin's idea. Assuming that indeterminate sentences are good for first-offenders, what about recidivist criminals? Obviously, in such cases, the release was ill-advised . . . .

Posted by: federalist | Nov 15, 2011 7:30:46 PM

See, and I have even a different idea. What we should do is after conviction for any crime, even a misdemeanor, the judge stands at a roulette wheel and spins it. Whatever the number it lands on that's the sentence the person gets in years. That is true indeterminate sentencing.

Posted by: Daniel | Nov 15, 2011 8:26:20 PM

Federalist has it right. This is what will happen "in practice" as it did in California that led to determinate sentencing in the late 1970s. The Legislature will continually underfund corrections and rehabilitation forcing earlier and earlier release of higher risk offenders to stay within budget. As the parole criteria move toward release of higher risk offenders, crime will increase (assuming the risk assessments are accurate; if they are not, then indeterminate sentencing has no business being considered at all).

We already tried this in California, people got fed up and gave us determinate setencing. Now they want to go back? Perhaps Proffesor Slobogin can tell us why he thinks this will be adequately funded. It may actually be cheaper than the current system, however that does not mean politicians or the citizens will select a system that costs less because even if all people were rational actors, which they may not be, the costs and benefits do not fall on all voters equally.

Posted by: David | Nov 15, 2011 8:27:47 PM

what i think we need is a combination of the two. make any sentence indeterminate up to a statuatory MAX based on the actual crime the individual is convicted of!

that way you play nice. attend treatment and whatever else is determined the individual needs...that can be taken into acount to reduce that max time. act the ass and max that sucker out!

Posted by: rodsmith | Nov 15, 2011 9:41:13 PM

Indeterminate sentencing can lead to great risk and practice of injustice as the effective role of sentencing is unfairly transfered to "experts". The UK has dabbled with this in the past few years, and is now thankfully reversing this practice.
"Indeterminate sentences for serious criminals should be scrapped, Ken Clarke told the House of Commons today. The Justice Secretary said judges already had enough discretion to hand out life punishments to the most dangerous offenders. And he said the indeterminate sentences - known as IPPs - had malfunctioned since Labour introduced them in 2003, leaving thousands in prison beyond normal guidelines. Mr Clarke told the Commons there were currently more than 6,500 offenders in prison on IPP sentences - more than 3,000 of whom were beyond the normal tariffs. He concluded: 'It is high time we reformed the indeterminate sentences. I'm amazed they have survived judicial review and challenge in the courts."

Posted by: peter | Nov 16, 2011 4:12:44 AM

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