Judges do not always have discretion in determining a criminal sentence. Each state, as well as the federal legal system (for federal crimes) has its own jurisdiction. While some jurisdictions have indeterminate sentencing, which does allow for discretion, other jurisdictions have determinate sentencing.

Under a determinate sentencing system, a definite prison term is described by the law, and it must be followed. Therefore, if a person is convicted of a crime in this type of jurisdiction, and the penalty for that crime is one year in prison, the convict will not be released from prison until they have served the entire year.

However, in a jurisdiction which has indeterminate sentencing, it is possible that a person who is convicted and given a one-year sentence may be released from prison in less than a year.

What is Indeterminate Sentencing?

Indeterminate sentencing is a system of sentencing in which there is more flexibility in deciding what an individual’s sentence will be. Usually, the sentence is given in the form of a range, with a minimum and maximum amount of time to be served.

As an example, if a judge sentences the convicted individual with a term of 20 years to life, the individual would have to serve at least 20 years of a prison sentence. However, they may not have to serve a full life sentence. Depending on their behavior while in prison, the parole board has the discretion to release the prisoner earlier.

Which States Have Indeterminate Sentencing?

There are currently 34 states which have indeterminate sentencing, allowing individuals convicted of a crime to be given a sentence of a range of years, with a minimum and maximum amount of time that may be served. States with indeterminate sentencing are:

  • Alabama;
  • Alaska;
  • Arkansas;
  • Colorado;
  • Connecticut;
  • Georgia;
  • Hawaii;
  • Idaho;
  • Iowa;
  • Kentucky;
  • Louisiana;
  • Maryland;
  • Massachusetts;
  • Michigan;
  • Mississippi;
  • Missouri;
  • Montana;
  • Nebraska;
  • Nevada;
  • New Hampshire;
  • New Jersey;
  • New York;
  • North Dakota;
  • Oklahoma;
  • Pennsylvania;
  • Rhode Island;
  • South Carolina;
  • South Dakota;
  • Tennessee;
  • Texas;
  • Utah;
  • Vermont;
  • West Virginia; and
  • Wyoming

The remainder of states in the U.S. have systems of determinate sentencing. In the past, more jurisdictions had indeterminate sentencing, but many jurisdictions started abolishing it in the latter half of the 20th century.

Can an Indeterminate Sentence Used in Less Serious Crimes?

Generally, indeterminate sentencing is used in felony cases, but not in misdemeanor cases, felony crimes being more serious. Most misdemeanor crimes are relatively less serious and carry comparatively short jail sentences.

In the federal law jurisdiction, the most serious type of misdemeanor is subject to indeterminate sentencing. Otherwise, whether indeterminate sentencing applies to any misdemeanor crimes will depend upon the state in which it is committed.

Who Decides When I Am Released from Prison?

In a system with indeterminate sentencing, the power to grant early release from prison lies with the state’s parole board. Once a person has served the minimum sentence, the parole board will meet to review their case. If parole is not granted at the first meeting, the parole board will continue to meet and review the individual’s case periodically.

So, to use our earlier example, say a prisoner is serving 20 years to life. Once they have served 20 years, the parole board will meet to determine whether, based on the inmate’s behavior, they should be released from prison. If they do not parole the inmate at that time, then there will be further periodic meetings in the future to review the case again to see if there has been any improvement.

What is the Goal of an Indeterminate Sentence?

The philosophy behind indeterminate sentencing is that it allows for inmates to rehabilitate themselves while they are in prison, and show that they are ready to be released from prison and live productive lives. There are a number of ways an inmate can demonstrate that they have been rehabilitated. These include:

  • Taking responsibility for the crime of which they were convicted;
  • Good Conduct While in Prison: behaves well with other inmates and prison employees; and
  • Efforts Towards Rehabilitation: attempts at self-improvement and education, for example.

On the other hand, if there were aggravating factors in the crime committed, or if the individual shows no efforts at rehabilitation while in prison, the parole board is likely to keep them incarcerated.

Are There Any Drawbacks to an Indeterminate Sentence?

The main problem with indeterminate sentencing is that it gives a parole board ultimate authority in determining the length of prisoner’s sentence (within the minimum-maximum range). The fear with this is than inmate can be subjected to discriminatory treatment by the parole board members, without any recourse.

Do I Need to Talk to an Attorney about Indeterminate Sentencing?

If you are facing criminal charges, you should contact a criminal attorney. The attorney will represent you at trial. They can also explain what the sentencing system is like in the jurisdiction where you are being accused.