THE INDETERMINATE SENTENCEAT THE CROSSROADS

Louis B. Cei*

Despite years of experimentation and hope, many author-ities of penology now conclude that few rehabilitative pro-grams reduce recidivism.' However, it has been stated that"lower rates of recidivism are associated with either veryshort sentences . . . or long sentences." 2 The only methodthat can tailor length of sentence to individual needs is the in-determinate sentence. By carefully evaluating the offender'sprogress in changing his attitude and behavior, the indeter-minate decree allows correctional administrators the flexibil-ity to release prisoners when they are rehabilitated. Indeter-minacy differs from traditional fixed sentence procedure inthat in the latter procedure prisoners are retained for yearsdespite their rehabilitation, while others are freed yet havenot changed their behavior.3

Although indeterminate sentencing is designed to fully meetthe needs of incarceration, it has met serious criticism. Theliberals object because this apparently benign technique isabused by prison administrators who detain inmates labelled asnon-conformers. At the same time conservatives moan thatmany offenders serve all too brief sentences and return tothe streets in relatively short time. Finally, prisoners com-plain that the uncertainty of indeterminacy damages theirmorale and frustrates plans for returning to jobs and families.

*Chairman of the Central Classification Board of the Virginia Dept. of Correc-

tions; adjunct faculty member of Reynolds Community College, Richmond, Va.;Ph.D., Florida State University, 1975; M.A., Ohio University, 1971; B.A., La SalleCollege, 1969.

1 See D. LI-rox, R. MARTINSON & J. WLKs, THE E'rEC Tv EEss or CORREC-

TIoNAL TnEATmmNT (1975); D. FOGEL, 1,... WE ARE THE LIVrG PROOF . .. :THE JUSTICE MODEL FOR CORRECTIONS 114-126 (1975); R. Martinson, Wmt Works?Questions and Answers About Prison Reform, THE PUBLIC INTE EST No. 35, 24-25(1974); G. HAwKINS, THE PnIsoN: POLICY AND PRACTICE, 51 (1976).

2 LIPTON, MARTiNSoN & W3nKS. id. at 564.a d.

86 NEW ENGLAND JOURNAL ON PRISON LAW [Vol. 3:1

Clearly, the indeterminate sentence stands at the crossroads.Although it has an awesome potential for improving correc-

tional programs, it is criticized for its potential misuse. It

would be useful to review the development of the indetermi-

nate sentence and examine its strengths and weaknesses inlight of new research and new perspectives in the hope ofdeveloping a workable procedure.

The indeterminate sentence originated in New York in the

1820's where it was used for juvenile offenders. In that same

state, in 1870, the indeterminate law for adults provided for

open-ended sentences which allowed release of offenders only

after the prisoners were "cured." ' This technique appearedfar superior to previous fixed sentences which only punishedand exiled the offenders. Zebulon Brockway, a nineteenthcentury correctional administrator who is generally regardedas the pioneer of the concept of adult indeterminacy, statedthat the indeterminate sentence "gratifyingly changed theusual relation of prison governor and prisoners from antag-onism of desire to accordance of interest." 5

As used today the term indeterminate sentence has a va-riety of meanings but generally indicates a procedure inwhich an inmate receives a range of sentence. The exacttime served depends on a decision by penal authorities. Itis based on the premise that one who breaks the law is illand that prison will give "medicine" for his problems. Oneinfluential proponent of this approach is psychiatrist KarlMenninger who views criminality as a form of mental ill-

ness; he declares that criminal acts are "signals of distress,

signals of failure . .. the spasms and strugglers and convul-sions of a submarginal human being." I Further, Attorney

4 R. GOLDFARB & L. SINER, AFTER CONVICTION, 167, 169-170 (1975).5 Z. BROCKWAY, FIFTY YEARS OF PRISON SERVICE, 101 (1969 reprint of 1912 ed.).6K. MFENNINGER, THE CRIME OF PUNISHMENT, 231 (1969); see J.C. MuRPH ,

PUNISHMENT AND REHABILITATION, 5-6 (1974).

THE INDETERMINATE SENTENCE

General Ramsey Clark asserts, "Most people who commitcrimes have a mental health problem." 7

By far the most enticing feature of indeterminacy is theopportunity it offers for realization of the rehabilitative ideal.Because release is tied directly to behavior, the inmate's stayin prison is exclusively therapeutic and thus fulfills a recom-mendation of the prestigious National Advisory Commissionon Criminal Justice Standards and Goals which urges thatvirtually all sentences be totally rehabilitative in nature.8 Onewriter has commented, "Inherent in the indeterminate sen-tence procedure is the stimulation of the offender's incentivetoward rehabilitation." 9 Francis Carney, a psychologist atMaryland's Patuxent Institute, has written that "most of theprofessional staff at Patuxent hold that their major thera-peutic tool is the indeterminate sentence." ' 10 One group ofauthors put it most bluntly: "Only an indeterminate sen-tence can supply a true incentive for a prisoner to rehabili-tate himself and adequately reward his efforts."1 '

A corollary to this rehabilitative aspect of indeterminacyis the potential to reduce recidivism. Since the inmate willnot be released until he has changed his attitude, fewer crimeprone persons will be free in society. The indeterminate sen-tence also would not keep a person longer than necessary torehabilitate him. Quoting again from Patuxent psychologistCarney, "Under the determinate sentence apparent changesin behavior occur but the personality structure remains intact . . .all the prisoner does is learn to adjust and some-

7 R. CLARK, CRIME iN AMERICA, 59 (1970).8 E.B. Prettyman, The Indeterminate Sentence and the Bight to Treatment, 11

Am. CRIm. L. REv. 7 (1972); NATIoNAL ADvIsoRY CoMMIssIoN ON CRIMINAL JUSTICESTANDARDS AND GoALS, 43-45 (1973).

9 M. Bryce, Federal Sentencing Procedures: Need for Reform, 42 L.. B. BULL.593 (1967).

10 F.L. Carney, Indeterminate Sentence at Patuzent, 20 CRIM. & DELN. 135 (1974).1 1 A. Murray, G. Ringer & A. Alarcon, Prison Reform: Backward or Forward?,

1975 CALir. ST. B. REV. 397-398.

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times manipulate external controls." 12 When released "heis thrown back on his own resources which are grossly un-derdeveloped if they exist at all.' 8 But Carney notes thatunder the indeterminate sentence the offender learns "internal

controls" which help him to adjust and cope with free society."'Another author, although critical of the indeterminate sen-tence, concedes that the technique "can make a person lessunhappy with himself and less dangerous to others."' 5

Implicit, then, in the indeterminate decree is the belief thatthose incarcerated who are not likely to recidivate must notmerely sit in confinement, and that those who are consideredlikely to recidivate should be confined until they pose littlelikelihood to break the law. 16

By far the chief advocates of the technique are the prisonadministrators. Indeterminacy permits correctional author-ities to manage and dispose of cases with greater involvementthan in fixed sentences. Allowing correctional officials to makethis judgment is theoretically alluring because it transfersthe sentencing decision to a panel of officials who are trainedin penology and acquainted with the inmate's behavior. Asone commentator stated, "It is a flexible therapeutic approachwhich adjusts the term of commitment based upon an on-going evaluation of the offender's needs and does not straight-jacket him into a term based upon the correctional judgmentor philosophy of one man at one point in time." 7

12 Carney, supra note 10 at 138, 140.18 d.14 Id.15 H. Bedau, Physical Intervention to Alter Behavior in a Punitive Environment,

1972 AmERICAN BEHAViOR SCIENTIST V, 657-678.16 A.M. Schreiber, Indeterminate Therapeutic Incarceration of Dangerous Crimi-

nals: Perspectives and Problems, 56 VA. L. REv. 602, 612 (1970).17 W.L. Martin, The Collective Sentencing Deoision in Judicial and Administra-

tive Contests: A Comparative Analysis of Two Approaches to Correctional Disparity,11 Am. CraiM. L. REV. 695, 709 (1973); see R. McGee, A New Look at Sentencing,Part I, 38 FED. PROB. 3, 7 (1974).

THE INDETERMINATE SENTENCE

The indeterminate sentence has received endorsement froma wide variety of sources. The National Advisory Commis-sion favors the indeterminate procedure because "the alter-native would leave little room for correctional administratorsor parole boards to release the offender when it appears tothem that he is capable of returning to society." 18 RamseyClark stated that it "gives the best of both world- long pro-tection for the public yet a fully flexible opportunity for theconvict's rehabilitation."' 19 Dr. E. Preston Sharp, formerexecutive secretary of the American Correctional Associationand now a professor and consultant to the Virginia Depart-ment of Corrections, has written that the indeterminate sen-tence should be used on a voluntary basis and mainly forfirst offenders who "wish time to serve them and not merelyto serve time." 20

Despite this praise, there still remain serious questionsabout the indeterminate sentence. One judge asks how doesone know if a rehabilitation program can or cannot work!The answer is found in research reports.2

Unfortumately, research findings in the effectiveness of theindeterminate decree are few in number and ambiguous in re-sults. One comprehensive study by Dr. Emory Hodges showeda recidivism rate of thirty-five percent for those who receivedfull treatment of the indeterminate sentence, and the authorconcluded, "The indeterminate sentence law appears to have,been reasonably successful in achieving the dual purpose ofprotecting society from the defective delinquent while simul-taneously handling him more effectively and humanely." I Inanother study at Patuxent, psychologist Carney reported a

18 NATIONJ ADvisoRY COmmISSiON ON CRIMINAL JUStICE STADARDS AND GOALS,

152 (1973).19 CLAzx, supra note 7, at 215, 224, 225.20 Sharp, Virginia Dept. of Corrections Newsletter, Dec. 2, 1974.2 1 L. ORLAND & H. TLER, JUSTIcE nT SmETmeCnmo, 52-54 (1974).22 E.F. Hodges, Crime Prevention by the Indeterminate Sentence Law, 1971 Am.

J. or PsYComATaY, 128, 291-295.

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recidivism rate of twenty percent. In yet another study, re-

sults were similar and researchers concluded that such find-ings "deviate significantly from the anticipated recidivist rates.

When one considers the severe behavior disorders that are

found in our (Patuxent) population . . . these figures becomeeven more impressive." 2 3

But opponents to indeterminacy find fault with these fig-

ures. While critics grudgingly concede that recidivism islower in the indeterminate method, they also point to the fact

that of 432 inmates released by the courts against Patuxentrecommendations, only 187 or forty-three percent committed

new crime. Thus there was only forty-three percent recidivism

of those released by the courts which Patuxent officials felthad not been rehabilitated. 2- Gerald Wheeler analyzed theimpact of indeterminate sentencing throughout the nation andconcluded that the procedure results "in nothing less than aright to confine people longer against their will in remoterural based institutions." 25 Therefore statistical evidence isnot clear cut, but depends on one's value concerning libertyand justice.

Although the statistical evidence gives only the most pre-carious conclusions, critics oppose indeterminacy on othergrounds. The first consideration is cost. Since the indeter-

minate sentence usually increased the inmate's length of sen-tence, the average cost per man per year increases. For exam-ple, if the indeterminate sentence would have been in effectin Virginia from 1973 to 1975, inmates would have served ad-

ditional man years which at a cost of $5,000 per man per

23 H.M. Boslow & W.A. Kohlmeyer, The Maryland Defective Delinquent Law: An

Eight Year Follow Up, 1973 A t. J. or PSYCHiATRY, 118-124, 130.24 Sehrieber, supra note 16, at 619.25 G. WHEELER, NATIONAL ANALYSIS Or INSTITUTIONAL LENGTH Or STAY: THE

MKYTH OF THE INDETERMINATE SENTENCE (Division of Research, Planning and De-velopment, Ohio Youth Commission; note: the Ohio Youth Commission did notendorse this report).

THE INDETERMINATE SENTENCE

year would have amounted to a total cost increase of mil-lions of dollars over the three-year period.2 6

Another group of critics are dismayed by the mental ill-ness aspect implicit in the indeterminate sentence. Indeter-minacy, opponents say, forces a man to reject his friends,background, and values as deranged.27 Even psychologistCarney states that "the structure of self must first be de-stroyed and then rebuilt." 28 But critics assert that becauseone exhibits anti-social behavior does not mean that one ismentally ill. Judge Marvin Frankel notes that judges sen-tence people who are not mentally ill quite frequently." Psy-chiatrist Thomas Szazs comments that little agreement existson standards to indicate mental illness and states that "thethesis that the criminal is a sick individual in need of treat-ment . . . is false."8s0

Aside from this, indeterminacy brings into question awe-some political considerations. The state certainly has a rightto confine a person because of his aggressive acts, but notto change his basic aggressiveness. In an article concerning be-havior modification and the indeterminate sentence the authorsnote that the state has the right to demand that a person con-form to the rules of society but the government does nothave the right "to alter his nature or belief."'" Anotherwriter comments that the area of indeterminacy has reallybeen a political question entrusted to legislators and courts"rather than to psychiatrists and social scientists who claimno expertise in these matters.1"

26 Prettyman, supra note 8, at 18; 3. MrroroD, KIND AND USUAL PuISHMENT:THE PRIso BusInss, 86-93 (1973).

27 AmERtcAN FRxENDS SERVICE CommiTT, STRUGGLE PoR XUSTiCE, 83-86, 97, 98

(1971).28 F. Carney, Some Recurring Therapeutic Issues in Group Psychotherapy with

Criminal Patients, 1972 Am. J. oN PSYCHOTHERAPY X=, 39.2 9 . FRAEIEL, CurIMNAL SENTENCES: LAW WITHOUT ORDER, 90 (1971).30 T. SzAsz, LAw, LIBERTY AND PsYCHIaTRy, 108 (1963).31 W. Gaylin & H. Blatte, Behavior Modification in Prisons, 1975 Am. Cmm. L.

REv. 31-32.32 Schreiber, supra note 16, at 623-624.

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Beyond these theoretical problems, the indeterminate sen-tence has been rejected for the abuse that it has caused. Themost outspoken critic is Jessica Mitford who, in her bookKIND AND USUAL PUNISHInNT, asserts that the indeterminatesentence is used to crush political agitators or non-cooperativeinmates.8 3 She writes that indeterminacy "is elastic enoughto embrace the political nonconformist, the malcontent, theinmate leader of an ethnic group, the persistent writ writer,the psychotic, the troublemaker . . . a potent instrument forinmate manipulation and control." 8' As for prison officials,the indeterminate sentence "endows them with total unfet-tered power over prisoners consigned to their charge." Anumber of prisoners also claim that indeterminacy is usedby prison administrators as a "club" to "keep prisonersin line." 85

Closely connected to the idea of abuse, is the fact that, in-deed, administrators do possess considerable power under theindeterminate sentence. One author has noted that the warden'sjob is not the rehabilitation of prisoners but the maintenanceof order, and with indeterminacy the warden has a powerfultool for maintaining that order.3 6 Judge Frankel complainsthat administrators use the technique vaguely and withoutguidelines and therefore such practises can lead to abuse.87 MissMitford adds that the indeterminate sentence "is the per-fect prescription for securing compliance and crushing de-fiance."

The basic administrative problem in indeterminacy dealswith the prediction of behavior. In-many states, correctionaladministrators lack trained personnel to evaluate future ac-

33 Mr ITo, supra note 26, at 83, 90.34 I.85 Big Change in Prisons: Punish, Not Reform, U.S. News and World Report.

Aug. 25, 1975, at 21-23.36 Gaylin & Blatte, supra note 31, at 11-35.37 FRANKE, supra note 29, at 88-89.38 MiTroRn, supra note 26, at 90.

THE INDETERMINATE SENTENCE

tions. Moreover even in states -with adequately trained staff,there exists disagreement on the reliability of the factorsused to make predictions. In the judgment of one writerthis lack of personnel makes the indeterminate sentence "awell intentioned, yet futile road to correctional justice.""In Illinois a study noted that after one doctor certified aprisoner as mentally ill it was difficult for another to claimthat the man was rehabilitated.40 In 1958, Dr. Seymour Hal-leck proclaimed that "there is little science to be brought tothis sensitive task. Research in the area of dangerous behav-ior is practically nonexistent." ' 41 In 1970, new researchindicated that psychologists cannot predict future criminalactivity with an acceptable degree of certainty.4 Prisoners,consequently resent their liberty being subject to such a ea-pricious and vague process.

In many cases the indeterminate sentence weakens the willof the inmate to rehabilitate himself. Instead he develops acynical attitude in which the therapy program degenerates intoa form of role playing with the inmate trying to "dupe thetherapists quite deliberately and consciously." Ray Johnson,a former convict, in recounting his stay in the California sys-tem writes that he achieved his release by pretending he hadchanged his attitude and behavior.3 Even ardent indeterminatesupporter Carney states that the inmate will "play upon yourspecific traits to convince you that he has changed.""

A number of writers and agencies have condemned the in-determinate sentence. Participants in the 1972 Earl Warren

89 Martin, supra note 17, at 713.40 JOHN HowAD ASSO0IATION, GOVERNOR WAL.ER'S PROPOSED JUSTIOE MODEL:

ANALYSIS OP ITS IMPACT (1975).41 M. Hakeem, A Critique of the Psychiatric Approach to Crime and Correction,

1958 .&w AN CONTEMPORARY PROBLEMS, XXIII, 681.42 J. Landau, 'reventive Detentive Detention: Publio Safeguard, 1970 T.

MAAznE 23-26.43 R. JoHNsoN, Too DANERous To BE AT LARGE, 85-86 (1975).44 Carney, upra note 28, at 40.

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Conference on Advocacy concluded: "The ultimate goal ofimprisonment should be no indeterminacy whatsoever. . .. ','"

Norman Carlson, Director of the Federal Bureau of Prisons hasstated, "As a correctional administrator, it is my personalphilosophy people should not be sent to an institution forrehabilitation. If the prime goal is for correction, it shouldbe done in the community." In the Report of the Committeefor the Study of Incarceration the members rejected indeter-minacy as unfair and unrealistic.4 7 Further, corrections ad-

ministrator and scholar David Fogel in his book ".. . WB ARBTH E LVIG PROOF . . ." condemns indeterminacy and rehabil-

itation.48

Perhaps the words of one inmate might sum up the oppositionto the indeterminate sentence: ". . . to be remade after somepattern of 'normality' hatched in a Viennese laboratory towhich I never professed allegiance; to know that this processwill never end until either my captors have succeeded or I'vegrown wise enough to cheat them with apparent success - whocares whether this is called Punishment or not." 49

These criticisms have caused the courts to be clogged withpetitions seeking to invalidate indeterminacy . State and

federal courts have ruled that an inmate has no legal right to

have sentence set at less than the maximum provided for theoffense, and, in the words of one recent article, "... regardless

of his prior record, his conduct in prison, his adherence to pre-scribed programs, or the sentences given co-defendants, the

paroling authority has complete discretion to determine and

redetermine the time he must spend in prison." 10 Nonetheless,

some legal scholars feel the indeterminate decree is on question-

45 ORLAND & TYLER, supra note 21, at 54-55.46 Id. at 55.4 7 A. VON HIRSCH, DoING JUSTICE: THE CHOICE 0r PUNISHMENTS, 11-14 (1976).48 FOGEL, supra note 1.49 Schreiber, supra note 16, at 612.5ow. Toal, Becent Developments in Correctional Case Laws, 1975 RESOLUTION

O CORRECTIONAL PROBLEMS 89, 91.

THE INDETERMINATE SENTENCE

able constitutional grounds because of the use of such words as"mentally ill" and "dangerous" offender. Such terms whenused to justify incarceration are certainly open to future court-test because of a breadth of meaning arguably unconstitu-

tional. 1

Despite these criticisms, the indeterminate sentence should be

employed, but under strict control. As stated in one article:

"Society is not prepared to abandon the premise of rehabilita-

tion since the alternative punitive model is too bleak, too defeat-

ist for a 'can do' society as ours has traditionally been." 5 2 An_

other advantage is that the indeterminate decree allows correc-

tional administrators considerable flexibility in sending inmatesto community based programs. In a five year study by the

California State Bar Committee the authors concluded that theindeterminate sentence should be retained with a "total com-mitment to the goal of rehabilitation." "

The most serious objection to the indeterminate sentence is its

potential for arbitrary administration. Therefore every inde-terminate sentence should function under written guidelineswith allowance for appellate review. Statutory definitions

should be enacted to define terms such as "dangerous" and"mentally ill." Only first offenders who enter the programvoluntarily should be allowed to participate. Finally there

should be no minimum time for parole eligibility and releaseshould come either from an administrative board or from the

courts."As for the problem of behavior prediction, indeterminate com-

mitment must be accompanied by an analysis which indicatesthat the person has an identifiable disorder. The offender

should be compared to other inmates who have successfully

51 Schreiber, supra note 16, at 608-611; GoLDYARB & SnGEn, supra note 4, at 170.52 .ecent Developments, supra note 50.58 Id.54 See Gaylin & Blatte, supra note 31; Hudson, Galaway, Hensehel, Lindgren &

Penten, Diversion Programming in Criminal Justice: The Case of Minnesota, 1975FED. PROB. 17; Murray, Ringer & Alarcon, supra note 11, at 357-361, 396-398. "

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completed the program and a statistical prediction should bemade on the chances of success. If the study indicates a highprobability, then the judge should sentence the offender to theprogram for that specific problem.

The indeterminate sentence, even under the above safeguardsis not error-free and scholar David Rothamn's word to judgesshould be kept in mind: 11... exercise the most incredible kindof skepticism, that no program which parades as rehabilitationought even to be accepted by you as valid." ' Nonetheless, in-determinacy offers the flexibility and hope that could helpmany inmates. The indeterminate sentence is at the cross-roads; let us hope that the criticism has made the programstronger and more ready to meet inmates needs.

55 O LAND & T ma, mupra note 21, at 51.