Indeterminate Confinement - Letting the Therapy Fit the Harm

• NCJ Number: 79158
• Journal: University of Pennsylvania Law Review Volume: 123 Dated: (1974) Pages: 297-339
• Author(s): A M Dershowitz
• Date Published: 1974
• Length: 43 pages
• Sale Source: National Institute of Justice/
• Language: English
• Country: United States of America
• Note: Early version of this article was presented at the Ninth International Academy of Comparative Law in 1974.

Annotation

This comprehensive discussion of indeterminate sentencing considers its impact on prison terms and treatment programs, the historical development of the practice in the United States, and recent trends to limit the indeterminate approach.

Abstract

The indeterminate sentence is not a unitary concept but rather a continuum of devices designed to tailor punishment to the rehabilitative needs and special dangers of a particular category of criminals. Most sentences imposed in the United States today are indeterminate, although prisoners are usually able to calculate the amount of time they will serve with good behavior. When a sentence is indeterminate, an administrative agency imposes it while it is being served and is likely to base a decision on prison behavior and prospects for readjustment to society. Indeterminate sentences and longer terms are often found together, although no strictly causal relationship has been proved. A discussion of the origins of indeterminate sentences emphasizes that some form of indeterminacy has existed informally since the earliest times, but the concept did not receive professional support until the mid-19th century. Theories advocated by the Italian positivist school of Cesare Lombroso who first justified indeterminate sentences, his critics, and American reformers who espoused rehabilitation are reviewed. Early challenges to indeterminate sentences by prisoners are described, although the courts generally upheld such sentences. In the mid-1960's, however, skepticism developed toward the rehabilitation model and during the early 1970's influential books were published which criticized the indeterminate sentence. Recent judicial decisions have placed limitations on indeterminate sentencing through procedural safeguards and equal protection scrutiny. These cases are summarized, along with In re Lynch, a 1972 decision by the California Supreme Court which may mark the beginning of significant constraints on the indeterminate sentence. The impact of decisions regarding indeterminate prison sentences on civil commitment laws is explored, with attention to the 1969 case of Cross v. Harris. Approximately 160 footnotes are provided.