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A sentence to confinement for a fixed or minimum period that is specified by statute.
Determinate sentencing encompasses sentencing guidelines, mandatory minimum sentences, and enhanced sentences for certain crimes. Sentencing guidelines allow judges to consider the individual circumstances of the case when determining a sentence, whereas mandatory minimum and enhanced-sentence statutes leave little or no discretion to judges in setting the terms of a sentence.
Determinate sentencing statutes have existed at various times throughout the history of the United States. They became popular in the 1980s, when public concern over crime increased dramatically and the public demanded stringent laws to address the crime problem. Operating under the belief that certainty of punishment deters crime, Congress and the states responded by passing laws that dictate specific sentences for certain crimes or for repeat offenders. These laws have been a source of considerable controversy.
Many of the determinate sentencing measures adopted during the 1980s and 1990s were by-products of the war on drugs. They require strict, harsh, and non-negotiable sentences for the possession of narcotics. These stringent laws have led to some unintended and inconsistent results. For example, repeat offenders who have information that is useful to the police sometimes receive lighter sentences than do nonviolent, first-time offenders, in return for their testimony.
Another type of determinate sentence that has been popular since the 1990s is the "threestrikes-and-you're-out" law, which mandates a heavy sentence for anyone who is convicted of a third felony. For example, California Penal Code, section 667, requires a minimum sentence of 25 years to life for a third conviction for a serious felony, and it doubles the usual sentence imposed for a crime when it is a second offense. The purposes of the law are to incapacitate repeat offenders and to deter others from committing crimes.
The constitutionality of the three-strikes laws has come into question in a number of decisions. In 2003, the U.S. Supreme Court, in Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003), held that these laws do not violate the Eighth Amendment's prohibition against cruel and unusual punishment, thus reversing a decision by the Ninth Circuit Court of Appeals. The decision resolved a dispute between state and federal courts in California.
Leandro Andrade received a life sentence with no possibility for parole for 50 years for stealing nine videotapes worth a total of $153.54. The California trial court applied the three-strikes provision and elevated the crimes to felonies. These felony convictions for petty theft counted as "strikes" three and four against Andrade. Andrade appealed his sentence to a California appellate court, which upheld the trial court's ruling and rejected, among other claims, that the sentence violated Andrade's Eighth Amendment rights.
Andrade then filed a petition for a writ of habeas corpus with a federal district court in California, which denied the petition. He then appealed to the Ninth Circuit, which reversed the denial of the petition in Andrade v. Lockyer, 270 F.3d 743 (9th Cir. 2001). The appeals court noted that, while all other states enhance sentences for repeat offenders, California's law is unusually strict. It held that the sentence was so grossly disproportionate to Andrade's crime that it violated the Eighth Amendment's prohibition against cruel and unusual punishment. Andrade would not be eligible for parole until age 87.
The Ninth Circuit's opinion relied in part on the U.S. Supreme Court's decision in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), which held that the Eighth Amendment prohibits sentences that are disproportionate to the crime committed. The Ninth Circuit panel disapproved the ruling by the California appellate court that had heard Andrade's original appeal, because the state court had disregarded Solem in making its decision. In the months that followed the Ninth Circuit's decision, two California courts of appeals affirmed trial-court sentences of 25 years to life for petty theft convictions. According to the California court, the Ninth Circuit's majority opinion in Andrade was flawed. More than a dozen additional California courts refused to follow Andrade because the facts in those cases could be distinguished from those in Andrade.
The Supreme Court in Lockyer v. Andrade analyzed the Ninth Circuit's decision in light of the Antiterrorism and Effective Death Penalty Act, 28 U.S.C.A. § 2254(d)(1) (2003). Under that statute, a federal court may grant a writ of habeas corpus if a state court correctly identifies a legal principle from U.S. Supreme Court decisions, but incorrectly applies the principle to the facts of the case under review. The Ninth Circuit had determined that the California appellate court had improperly applied "clearly established" U.S. Supreme Court precedent to Andrade's case.
The Court found that prior decisions by the Court had not provided sufficient clarity on the issue, and that the California appellate court had not misapplied "clearly established" precedent. The fact that the 50-year sentence was essentially a life sentence because of the age of the defendant did not change the outcome, a point that Justice David Souter raised in a dissent. Justice Sandra Day O'Connor, who wrote the majority opinion, disagreed, stating that Justice Souter's argument "misses the point." According to the analysis by the Court, because the state court had not violated a "clearly established" principle, the federal court should not have granted the writ of habeas corpus.
Although the Court focused on the standard for a federal court granting habeas corpus, the effect of the decision is that the three-strikes law does not violate the Eighth Amendment. Accordingly, the several states are generally free to enact such sentencing provisions, and the debate for and against such laws has been left to the various state legislatures.
Supporters of three-strikes laws maintain that the severity of the third crime is not important. Rather, the pattern of violations indicates a life of lawlessness deserving severe penalty. Critics contend that the punishment is sometimes out of proportion to the crime. They point to the example of Jerry Williams, who, in January 1995, was convicted of felony petty theft for stealing a slice of pizza from a group of children in Redondo Beach. Usually, petty theft is a misdemeanor; prosecutors were allowed to charge Williams with felony petty theft because he had previous felony convictions. Williams's 1995 conviction triggered the three-strikes law and brought him an automatic sentence of 25 years to life. A similar case involved Steve Gordon, who had turned to petty crime to support his drug habit after he was fired from his job in 1985. Gordon was convicted of stealing $200 from the cash register at a fast-food restaurant and of snatching a purse, and then, in March 1994, of attempting to steal a wallet. His third conviction triggered the mandatory minimum sentence of 25 years to life.
Many judges oppose determinate sentencing when it prescribes mandatory minimum terms. A 1994 survey of federal judges conducted by the American Bar Association found that a majority strongly supported repealing most or all mandatory minimum sentences. In March 1994, during a hearing before the House Appropriations Committee on the U.S. Supreme Court's budget, Justice Anthony M. Kennedy, of the Supreme Court, called mandatory sentence legislation imprudent, unwise, and potentially unjust. Most judges feel that sentencing guidelines, which prescribe sentences that may be altered in accord with aggravating or mitigating circumstances, are preferable to mandatory minimums.
Some judges have attempted to circumvent determinate sentences, but their efforts have failed. In July 1994, Judge Lawrence Antolini, of the Sonoma County, California, Superior Court, challenged California's three-strikes law by sentencing Jeffrey Missamore, a three-time offender, to probation and drug treatment instead of the 25 years to life that the statute mandated. The state petitioned the appellate court to overturn Antolini's probation order. The Superior Court of Sonoma County granted the writ, stating that it is not the role of the judiciary to question the appropriateness of the public policy decisions embodied in the three-strikes law. The court held, "If people (including judges) feel those provisions …lead to unfair results, the law can be changed" (People v. Superior Court, 45 Cal. Rptr. 2d 392 [Cal. App. 1995]).
Another divisive issue in the determinate sentencing debate is the disparate effects of new laws concerning cocaine. The penalties for the possession of crack cocaine are substantially higher than those for powder cocaine. Crack is a less expensive form of cocaine that is smoked rather than snorted. Because crack is less expensive than powder, it is used more widely by young people, poor people, and members of minority groups—who constitute a disproportionate number of those incarcerated on drug charges. Critics have attacked the enhanced and mandatory penalties for possession of crack as discriminatory.
Whether determinate sentences work to deter crime is an open question. Both sides of the debate summon statistical evidence to support their positions. Opponents claim that from 1986 to 1991, when determinate sentencing was used extensively, violent crime continued to increase, even as the rate of incarceration rose dramatically. Supporters counter that the FBI's Uniform Crime Index shows a four percent drop in serious crime between 1989 and 1993, suggesting that perhaps stringent sentencing is beginning to affect the crime rate. Supporters also cite statistics indicating that the number of federal drug convictions doubled from 1985 to 1993. Opponents counter that most of those who were convicted were first-time offenders or low-level drug dealers, not the powerful drug kingpins whom the laws were designed to ensnare.
Forer, Lois G. 1994. A Rage to Punish. New York: Norton.
"Mandatory Sentencing: Do Tough Sentencing Laws Reduce Crime?" 1995. CQ Researcher (May 26).
O'Connell, John P. 1995."Throwing Away the Key (and State Money)." Spectrum: the Journal of State Government (winter).
Reske, Henry J. 1994. "Judges Irked by Tough-on-Crime Laws." American Bar Association Journal (October).
Sauer, Kristen K. 1995. "Informed Conviction: Instructing the Jury about Mandatory Sentencing Consequences." Columbia Law Review 95: 1232.
Sklansky, David A. 1995. "Cocaine, Race, and Equal Protection." Stanford Law Review 47: 1283.