American Prison-Release Systems: Indeterminacy in Sentencing and the Control of Prison Population Size

Chain link fence

“Indeterminacy” is the product of uncertainty, after a judge has pronounced a prison sentence, about later official decisions that will influence the actual time served by the defendant. The uncertainty extends over many future decisions, such as good-time awards or forfeitures by prison officials and release or release-denial decisions by parole boards. To the extent these later decision patterns are unpredictable, the judge’s sentence is “indeterminate” on the day of sentencing. When prison sentences are highly indeterminate, many months or years of time-to-be-served can be unforeseeable in individual cases.

The mechanics of indeterminacy in prison sentencing vary enormously from state to state, and are not well understood. In many states, time-served policy is largely administered at the “back end” of the sentencing system. If prison policy is aimed toward retribution or public safety, it is back-end officials who ultimately choose how best to achieve those goals. This raises critical questions of whether they are well-positioned to be stewards of the public interest, and whether their procedures are adequate to the task. Such questions are especially urgent in a nation with high incarceration rates.

For those concerned about mass incarceration, serious attention should be paid to the prison-release frameworks at the back ends of American sentencing systems. These are varied and are often highly complex. In each state, it is important to consider the institutional structure for release decisions, how and by whom time-served discretion is currently being exercised, and the range of possibilities for future changes in existing decision patterns (in both desirable and unwanted directions). Not all, but a large portion of the nation’s prison policy is implicated. In recent years, much of the mass incarceration debate has been focused on “front-end” decision-makers such as judges and prosecutors. For a comprehensive slate of possible reforms, equal attention must be directed to the back end.

This project offers new conceptual tools to better understand and compare the wide range of prison-release systems across America. We hope this will allow state officials to see their own systems in new perspective, and may shine a spotlight on policy options that would otherwise go unseen. It grows out of an ambitious project to examine the prison-release frameworks of 50 states, the District of Columbia, and the federal system.