Systems of Sentencing
Courts usually have a wide range of options in sentencing convicted criminals. However, the jurisdiction may have standards set by the governing body, such as the Legislature and Governor, or by a Sentencing Commission. Different jurisdictions have different standards. In relation to crimes that result in prison sentences, in general there are basic modes of criminal justice sentencing, as follows:
--- Determinate Sentencing
Using the Determinate Sentencing mode, the Judge sets the amount of time that a convict will serve. There is little that can be done to change the outcome. When the sentence is expired the inmate is released, but not before and not later.
--- Indeterminate Sentencing
Using Indeterminate Sentencing the judge pronounces a sentence having a broad range of time to serve, for example, one-to-fifteen years. The inmate may then be kept in prison for a minimum of one, and a maximum of fifteen years. In actuality, the usual sentence served is somewhere in the middle. The gatekeeper is not the judge, nor is it the Department of Corrections. Rather an autonomous board, called a Parole Board, controls when each inmate is released from prison. They have authority to release a person from prison at any time. They also may choose to maintain a person in prison for up to the full maximum of the sentence. In making this decision, the Parole Board usually relies on a Sentencing Matrix, in which factors relating to the severity of the crime, and past behavior such as repeated crime and other types of crime, are considered. The Parole Board does not have to follow the recommendations of the Sentencing Matrix, but generally does so. They also hold hearings in which they review the inmate’s file. Hearings provide a point in time for the Parole Board to review and determine the status of the inmate. After the hearing the Parole Board may set a release date or may set a date for another hearing. The Parole Board has the ability to take into consideration both positive and negative behaviors of the inmate while incarcerated and while on parole. Usually these factors are not given significant consideration unless a special hearing is granted for review on these grounds.
--- Time-Off for Good Behavior
With this modification a determinate sentence can be altered to subtract time at the end of the sentence for positive behaviors exhibited by the inmate during incarceration.
--- Mandatory Minimums
In this methodology the judge sets the duration of the sentence, but by statute cannot sentence the convict to a time shorter than the statutory minimum for that crime. The inmate may also then not get time-off for good behavior which would reduce his sentence to less than the mandatory minimum.
--- Three Strikes You're Out
Three-Strikes-You’re-Out Sentencing relates to a plan for stopping chronic criminal behavior, making the third offense subject to a mandatory life sentence.
AND NOW - (Drum Roll Please) -
--- Dual Mode Sentencing ---
A new approach to sentencing is proposed, called Dual Mode Sentencing. This methodology is called “Dual Mode” because it is partly determinate, and partly indeterminate. The most important difference from other current sentencing philosophies is that Dual Mode Sentencing looks at the motivations behind sentencing and responds to each with an appropriate strategy. A separation of the consequences for each of the reasons for punishment is proposed and the importance of individuality is stressed. The result is a benefit to societal safety and security.
Comparison of Dual Mode Sentencing to other sentencing modes.
Dual Mode Sentencing can be setup to be similar to Mandatory Minimum Sentencing, however there are major differences. Once again, those differences have to do with the motivations behind the sentences. Dual Mode Sentencing may or may not be set to have mandatory minimums. For instance, if the guidelines for sentencing a particular crime are 2 to 5 years, then there would be a two year minimum. But if the same crime were set to 0 to 5 years, no minimum would be required. Simply because a judge specifies, for instance, three years, it does not make a "mandatory minimum;" that is a determinate sentence, not a mandatory minimum. With Mandatory Minimum Sentencing, in the process of setting a guideline that becomes the mandatory minimum, all motivations are lumped into one. On the other hand, with Dual Mode Sentencing, only retribution (Debt to Society) is considered in setting the guideline for the determinate retributive sentence. Even at that, the guidelines may include a range of terms from which the judge may select. This effectively removes the negative stigma that accompanies Mandatory Minimum Sentencing – that the minimums in some cases are inappropriate and tie the hands of the judge. With Dual Mode Sentencing there is much more latitude for the judge to set a reasonable sentence. But even better, the judge can focus on appropriate retribution which would satisfy the Debt to Society, and can leave factors which may change with time, such as the risk of recidivism or the fitness of the convict to be released, to better informed parties in the future.
Dual Mode Sentencing improves upon Time-Off for Good Behavior because it considers not just the good behavior, but also the actual progression that the inmate is making towards becoming fit to be released into society. However, if the inmate is not progressing to becoming fit for release, Dual Mode Sentencing has the ability to continue to incapacitate.
With Dual Mode Sentencing, the system should never have a need to require a Three-Strikes law. The indeterminate part of the Dual Mode sentence should keep offenders from becoming repeat offenders. Certainly, a repeat crime after a first release would flag an offender as one who should not be quickly released.
Dual Mode Sentencing has all the benefits of Indeterminate Sentencing, but with an important difference. In the indeterminate phase of Dual Mode Sentencing the focus is on the ability of the offender to be law-abiding if released. Therefore, the real benefit of indeterminate sentencing is preserved, but is unclouded by a rehashing of the crime. Restricting the Parole Board to making decisions on the Indeterminate Sentence only on the basis of the motivation of incapacitation (Risk of Recidivism) keeps the system in check. Since incapacitation is directly tied to recidivism, the Parole Board gets focused directly on appropriate decisions to reduce recidivism.
So what about Indeterminate Sentencing with Mandatory Minimums? Is that not the same thing as Dual Mode Sentencing? To answer that question, look at the motivations. Does the Mandatory Minimum only take into account retribution (Debt to Society)? Does the Judge have latitude to set the determinate sentence within a range? In an Indeterminate Sentencing hearing or review, is further retribution and a rehashing of the crime specifically excluded, instead focusing on incapacitation (Risk of Recidivism) and/or rehabilitation? Is the fitness of the inmate to have a recidivism-free release and become a law-abiding member of society the primary focus of a release decision?
Dual Mode Sentencing provides two separate but concurrent sentences to require criminal justice professionals to consider their motivations, and to be very careful about not lumping all motivations into one big pile when they are making sentencing or release decisions.
Dual Mode Sentencing improves upon Time-Off for Good Behavior because it considers not just the good behavior, but also the actual progression that the inmate is making towards becoming fit to be released into society. However, if the inmate is not progressing to becoming fit for release, Dual Mode Sentencing has the ability to continue to incapacitate.
With Dual Mode Sentencing, the system should never have a need to require a Three-Strikes law. The indeterminate part of the Dual Mode sentence should keep offenders from becoming repeat offenders. Certainly, a repeat crime after a first release would flag an offender as one who should not be quickly released.
Dual Mode Sentencing has all the benefits of Indeterminate Sentencing, but with an important difference. In the indeterminate phase of Dual Mode Sentencing the focus is on the ability of the offender to be law-abiding if released. Therefore, the real benefit of indeterminate sentencing is preserved, but is unclouded by a rehashing of the crime. Restricting the Parole Board to making decisions on the Indeterminate Sentence only on the basis of the motivation of incapacitation (Risk of Recidivism) keeps the system in check. Since incapacitation is directly tied to recidivism, the Parole Board gets focused directly on appropriate decisions to reduce recidivism.
So what about Indeterminate Sentencing with Mandatory Minimums? Is that not the same thing as Dual Mode Sentencing? To answer that question, look at the motivations. Does the Mandatory Minimum only take into account retribution (Debt to Society)? Does the Judge have latitude to set the determinate sentence within a range? In an Indeterminate Sentencing hearing or review, is further retribution and a rehashing of the crime specifically excluded, instead focusing on incapacitation (Risk of Recidivism) and/or rehabilitation? Is the fitness of the inmate to have a recidivism-free release and become a law-abiding member of society the primary focus of a release decision?
Dual Mode Sentencing provides two separate but concurrent sentences to require criminal justice professionals to consider their motivations, and to be very careful about not lumping all motivations into one big pile when they are making sentencing or release decisions.
How does Dual Mode Sentencing tie in with Probation and Parole? Dual Mode Sentencing relates to incarceration. Both parts of Dual Mode Sentencing, the determinate part and the indeterminate part, are carried out with the inmate in prison. If a convict was sentenced to probation, but violated the terms of his probation, Dual Mode Sentencing could kick-in when the offender entered prison, if that was the decree of the judge. Similarly, if an offender received an "early release" from prison it would be the end of his indeterminate sentence, but he may continue to be on parole for a time, at the declaration of the Parole Board.
The difference between parole and the indeterminate sentence in Dual Mode Sentencing is this: On parole, an offender is presumed to be safe to have in society, but “we will keep an eye on him, just in case." However, during Dual Mode Sentencing, Part II, the indeterminate sentence, the offender is presumed not to be safe to have in society, but “we will keep an eye on him, to see if he improves."
The difference between parole and the indeterminate sentence in Dual Mode Sentencing is this: On parole, an offender is presumed to be safe to have in society, but “we will keep an eye on him, just in case." However, during Dual Mode Sentencing, Part II, the indeterminate sentence, the offender is presumed not to be safe to have in society, but “we will keep an eye on him, to see if he improves."