NCJ Number
52471
Journal
Wayne Law Review Volume: 24 Issue: 1 Dated: (NOVEMBER 1977) Pages: 45-94
Date Published
1977
Length
50 pages
Annotation
THE HISTORY OF INDETERMINATE SENTENCING IN THE UNITED STATES IS TRACED, WITH SPECIAL REFERENCE TO MICHIGAN, AND THE CONTEMPORARY DEBATE OVER INDETERMINACY IS ANALYZED.
Abstract
THE HISTORICAL REVIEW BEGINS WITH THE EMERGENCE OF THE INDETERMINATE SENTENCE IDEA IN 1870 AS A PROMINENT PART OF THE PROGRAM ADVOCATED BY THE NATIONAL CONGRESS OF THE AMERICAN PRISON ASSOCIATION. ACCEPTANCE OF THE IDEA OF INDETERMINATE SENTENCING IN THE LEGAL COMMUNITY IS TRACED, WITH PARTICULAR REFERENCE TO MICHIGAN LAW. AN ANALYSIS OF THE DEVELOPMENT OF INDETERMINATE SENTENCING IN THE 19TH CENTURY TOUCHES ON THE INTELLECTUAL AND SOCIAL FRAMEWORK FOR 19TH-CENTURY OPINION ON PENAL MATTERS, THE PARTICULARLY INDEPENDENT NATURE OF THE MICHIGAN JUDICIARY, THE CONFLICTING VIEWS OF CRIME AND PUNISHMENT EXPRESSED IN THE POPULAR AND LEGAL LITERATURE, AND THE POLITICS OF INDETERMINATE SENTENCING. IT IS SHOWN THAT THE INDETERMINATE SENTENCE GREW OUT OF CONCERNS FOR EFFECTIVENESS AND JUSTICE. LATE 19TH-CENTURY NOTIONS OF LEGAL JUSTICE AND EQUAL TREATMENT FOR CONVICTED OFFENDERS WERE ASSOCIATED WITH A CONCEPT OF RETRIBUTION BASED ON RELIGIOUS IDEAS, A BELIEF IN HARSHNESS OF TREATMENT BORDERING ON CRUELTY, AND LAISSEZ-FAIRE CONCEPTS OF LIBERTY CONNECTED WITH ECONOMIC LIBERALISM AND SOCIAL DARWINISM. BY THE TURN OF THE CENTURY, THIS VIEW OF JUSTICE HAD FADED SUFFICIENTLY TO ALLOW THE REHABILITATIVE FORWARD-LOOKING, APPARENTLY LENIENT DOCTRINE OF THE INDETERMINATE SENTENCE AND THE REFORMATORY TO THE STATE LEGISLATURES. IT IS SUGGESTED THAT THIS DEVELOPMENT WAS LINKED WITH THE GROWTH OF THE GENERAL WELFARE STATE. A BRIEF REVIEW OF THE SUDDEN DEMISE OF INDETERMINACY IN THE 1970'S HYPOTHESIZES THAT THE PHENOMENON STEMS NOT ONLY FROM GROWING AWARENESS OF THE LIMITS OF REHABILITATION, BUT ALSO FROM A RENAISSANCE OF CONCERN FOR JUSTICE. THE TURN TO A JUSTICE MODEL OF SENTENCING IS NOT NOVEL. A FORM OF THE JUSTICE MODEL WAS PREVALENT IN THE 19TH CENTURY BUT WAS DISCREDITED BY PENAL POSITIVISM, WHICH EVENTUALLY WAS ECLIPSED BY A NEW, AND PERHAPS MILDER, RETRIBUTION. IT IS SUGGESTED THAT THERE IS A DIALECTIC LINK BETWEEN THESE TWO OPPOSITES. EACH HISTORICAL SHIFT HAS PRODUCED CHANGES IN BOTH POSITIONS SO THAT THE JUSTICE MODEL OF THE 1970'S AND THE CONTEMPORARY APPROACH TO CORRECTIONAL PROGRAMMING BOTH ARE QUITE DIFFERENT FROM THE RETRIBUTIVE IDEAS AND SCIENTIFIC POSITIVISM OF THE 1870'S. AWARENESS OF THIS EMERGING SYNTHESIS OF OPPOSITES LEADS TO THE CONCLUSION THAT NEW MODELS OF SENTENCING AND CORRECTIONS MUST ACCOMODATE SOCIETY'S NEED FOR BOTH EFFECTIVENESS AND JUSTICE. (AUTHOR ABSTRACT MODIFIED--LKM)