3.8. Substantive Law: Punishment: Incarceration and Confinement 
Sanctions 
LORE RUTZ-BURRI 
 Substantive criminal law not only defines what behaviors are crimes, but also the law that determines 
the permissible punishment for the criminal behavior. All three governmental branches of government 
impact criminal punishment. One of the most important duties of a judge is to impose a sentence which 
means determining the appropriate punishment for an offender upon conviction. Thus, punishing offenders 
is a judicial function. Because of the trend toward mandatory sentencing, discussed below, much of the 
discretion of sentencing has been removed from judges and placed on the prosecutors in their screening and 
charging decision-making. As such, punishing offenders may rightly be considered an executive function. 
Finally, the lengths of sentences and types of punishment that attach to the various crimes, without regard 
to who may be committing the offense, is a product of the legislative process. In the last 30 years, through 
ballot measures, propositions, referendum, and initiatives, the people (the general public through voting) 
have played a large role in deciding the types and lengths of punishment. 
Incarceration/Confinement Sanctions 
Confinement sanctions include incarceration in prisons and jails, incarceration in boot camps, house arrest, 
civil commitment for violent sexual offenders, short term shock incarceration, electronic monitoring, and 
split probation (when incarceration is imposed as a condition of probation). Most believe that confinement 
is the only effective way to deal with violent offenders. Although people question the efficacy of prison, 
regarding it as little more than a factory for producing future criminals, incarceration does protect society 
outside the prison from dangerous offenders. Prison is effective at incapacitation, but rarely is it effective at 
rehabilitation. In fact, serving time in prison often reinforces criminal tendencies. 
State and federal approaches to incarcerating individuals have shifted in response to prevailing criminal 
justice thinking and philosophy. Over time, governments have embraced four different approaches to 
sentencing offenders to incarceration: indeterminate, indefinite, determinate, or definite. Criminal codes 
may incorporate more than one single approach. These approaches can be seen as a spectrum of judicial 
discretion. Indefinite and indeterminate sentences, at one end, are those that allow judges and parole 
boards the most discretion and authority. Determinate and definite sentences, at the other end, allow 
little or no discretion. Currently, most states are following determinate sentencing coupled with sentencing 
guideline, mandatory minimums, habitual offender statutes, and penalty enhancement statutes. 
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