Behind the Wall: Stories From the Inside

By Jessica San Luis

Even before the infamous 1994 Crime Bill gutted judicial review and truncated the courts’ discretion on sentencing, indeterminate sentences were the unfortunate default in thousands of criminal cases across the United States. Despite voluminous research contradicting its efficacy, this almost uniform capitulation to Draconian sentencing enhancements left thousands of men and women languishing in prison for decades without hope of release, and without the means or the incentive for rehabilitation. Which begs the question: is rehabilitation really the goal, or have we once again tacitly permitted – if not overtly encouraged – the conflation of justice with vengeance as a pillar of our thoroughly defective justice system?

Indeterminate Sentencing: A Brief History

The concept of indeterminate sentencing emerged in the late 1860s as a prominent component of a new program developed by the National Congress of the American Prison Associations. Support for the indeterminate sentencing model grew out of the concerns of legislators and judicial officers over the effectiveness of imposed punishments for serious criminal convictions. In the early- to mid-20th century, sentencing guidelines were left largely at the discretion of the individual states’ legislatures, and by the early 1970s, every state in the U.S. had adopted some form of indeterminate sentencing scheme into its codified regulations. 

In 1962, with the official release of the Model Penal Code (MPC), a piece of legislation designed to provide guidance to state legislators in drafting and standardizing state-level penal codes, the collective focus of the justice system shifted for the first time in recent history to include necessary consideration of rehabilitative programs for defendants in criminal proceedings and the incarcerated population. Ibid. The MPC posited that a restoration- and rehabilitation-centered model, taking into account the drug and mental health treatment needs of defendants and prisoners, could serve to reduce recidivism on a national level. The MPC suggested pretrial and post-conviction treatment alternatives, sentencing reductions for “good conduct,” and cautioned that a fixation on retribution was antithetical to substantive justice reform. By the mid-1970s, many state legislators had begun to question the efficacy – as well as the constitutionality – of indeterminate sentencing, arguing that the practice was unfairly punitive to people of color, the mentally ill and the impoverished. Many legislators opposed to the pre-MPC model contended that broad, standardless discretion denied constitutional due process to most, if not all, defendants. For those advocates championing substantive justice reform, this debate symbolized a faint light at the end of the proverbial tunnel. 

White Lines: Criminal Justice Reform and the Crack Epidemic

Sadly, the spark of hope was quickly extinguished. With the passage of the Sentencing Reform Act (SRA) in 1984, the federal government gutted rehabilitative and restorative justice in sentencing, opting to eliminate federal parole, which had long been a vehicle for early, discretionary release of federal inmates. Post-SRA, any prison sentence imposed by a federal judicial officer was automatically determinate in length. Under this new structure, the sentence imposed at the culmination of trial would be the sentence the defendant actually served, with no mechanism for discretionary adjustments in the length of the sentence itself. The SRA replaced traditional parole with a “supervised release” program, a system of post-incarceration oversight by a law enforcement agency that included specific conditions on the individual’s behavior after release into the community. The caveat, of course, being that even the most stringent supervision could not be substituted for part of an imposed prison sentence. 

Shortly after the SRA was passed, the United States Congress also created a revocation procedure that allowed judicial officers to send formerly incarcerated individuals back to prison for even minor violations of the conditions of their supervised release programs – conditions which often included unnecessarily strict prohibitions of non-criminal behaviors. And federal benches across the country fell dutifully in line, fomenting case law justifying the revocation framework enacted by Congress as additional punishment for the underlying conviction, as opposed to punishment for violating the terms of supervised release. 

And the states quickly followed suit. Once crack cocaine hit the streets in largely urban and impoverished communities, the face of criminal justice shifted dramatically. The crack epidemic – a response to the glut of cocaine powder being imported from abroad – resulted in various social and justice-related consequences, including an uptick in violent crime across the nation, and resulting backlash in the form of “tough on crime” policies and a massive spike in incarceration rates. Legislators and law enforcers alike quailed at the sheer volume of drug-related crime sweeping the nation. Unfortunately, the uniform response – an extreme emphasis on punitive measures and increased sentencing guidelines – fed men, women and children into the gaping maw of the prison industrial complex. In response, then-President Bill Clinton, with bipartisan support from Congress, signed the Violent Crime Control and Law Enforcement Act of 1994 into effect. The 1994 Crime Bill, as it is often called, remains the most extensive and punitive federal crime legislation ever passed in the United States. The Bill authorized the death penalty for dozens of existing and several new federal crimes, many of which had previously been non-capital offenses. The Bill also mandated life imprisonment as a sentencing requirement for conviction of a third violent act for any single defendant. Known as the “three strikes” rule, judicial officers across the country chafed at the new policy, calling three strikes unfairly punitive and illogically antithetical to judicial discretion. 

Another result of the overly-punitive bill was the significant financial boost the provisions gave to the growing prison industrial complex. From 1990 to 2005, the number of state and federal adult correctional facilities increased 43 percent, almost doubling the country’s carceral capacity. As an example of this prison construction boom, during one period in the mid-1990s, a new prison was opened in the U.S. every 15 days. The 1994 Crime Bill also provided almost previously unheard of increases in funding for law enforcement agencies at the local, state and federal levels, putting thousands more law enforcement officers on city streets. The funding also provided monetary incentives to states and cities to increase arrests, prosecutions, and incarceration, further bolstering the already intractably monolithic prison complex.

Arguably, the 1994 Crime Bill and legislation of its ilk passed over the last few decades, have served to drive up the number of incarcerated men, women and children in this country. With that demographic hovering at just over 2 million, and with no real decrease in petty or violent crime statistics, the efficacy of – and the impetus behind – these oppressive legislative edicts remains in question. And, while the past decade has once again signaled a fundamental shift in society’s attitude towards crime and punishment, thousands of men and women still languish under the more draconian sentencing laws that, while some have been repealed, were never retroactively abolished.

When Justice Isn’t

In the mid- to late-1990s, indeterminate sentences were commonly handed out by state and federal trial courts. Men and women, many of whom were convicted of non-homicide offenses – were sent to prison for what amounts to the rest of their lives. A sentence of 20 years to life, under the indeterminate sentencing scheme, often meant these individuals would die in prison, Why? Because even though the sentence itself appears to include a provision for release after the initial 20 years are served, there is often no vehicle by which to effect that outcome. Many men and women who were sentenced during this period – more than thirty years ago – are still languishing in prison due to the restrictive language of their sentences. Parole boards rarely grant release, and for these men and women, that is the only, last and often insurmountable obstacle to their freedom. A sentence that alludes to a possibility for parole really doesn’t if the only pathway to release is via a process that is successful for the incarcerated individual in less than 25% of cases. In addition, spending decades behind bars takes a significant toll on an individual’s mental, emotional and physical health, which often foments health issues that can preclude them from qualifying for release. 

So, what does all of this mean? If we humanize the political and legal rhetoric, what it means is that the indeterminate sentencing schemes of the late-20th century maintain a stranglehold on the prison population. While the paradigmatic shift towards rehabilitation and restorative justice has clearly taken root, our revised view of criminal justice is staunchly at odds with these antiquated hold-overs from eons recently passed. To put a finer point on it, we cannot profess to support rehabilitation and to lament stagnant recidivism rates while allowing indeterminate sentencing to remain.