Indeterminate-Indefinite Sentencing Approach 
For much of the twentieth century, statutes commonly allowed judges to sentence criminals to 
imprisonment for indeterminate periods. Under this indeterminate sentencing approach, judges sentenced 
the offender to prison for no specific time frame and the offenders’ release was contingent upon getting 
paroled, or released by a parole board after a finding that the person was rehabilitated. Because some 
criminals would quickly be reformed but other criminals would be resistant to change, indeterminate 
sentencing’s open-ended time frame was deemed optimal for allowing treatment and reform to take 
its course, no matter how quickly or slowly. The decline of popular support for rehabilitation has led 
most jurisdictions to abandon the concept of indeterminate sentencing. Indefinite sentences give judges 
discretion, within defined limits, to set a minimum and maximum sentence length. The judge imposes a 
range of years to be served, and a parole board decides when the offender will ultimately be released. 
Determinate-Definite Sentencing Approach 
Under determinate sentencing, judges have little discretion in sentencing. The legislature sets specific 
parameters on the sentence, and the judge sets a fixed term of years within that time frame. The sentencing 
laws allow the court to increase the term if it finds aggravating factors, and reduce the term if it finds 
mitigating factors. With determinate sentencing, the defendant knows immediately when he or she will be 
released. In determinate sentencing, offenders may receive credit for time served while in pretrial detention 
and “good time” credits. The discretion that judges are allowed in initially setting the fixed term is what 
distinguishes determinate sentencing from definite sentencing. 
Definite sentencing completely eliminates judicial discretion and ensures that offenders who commit the 
same crimes are punished equally. The definite sentence is set by the legislature with no leeway for judges or 
corrections officials to individualize punishment. Currently, no jurisdiction embraces this inflexible approach 
that prohibits any consideration of aggravating and mitigating factors in sentencing. Although mandatory 
minimum sentencing embraces some aspects of definite sentencing, judges may still impose longer than the 
minimum sentence and therefore retain some limited discretion. 
Presumptive Sentencing Guidelines 
In the 1980s, state legislatures and Congress, responding to criticism that wide judicial discretion resulted 
in great sentence disparities, adopted sentencing guidelines drafted by legislatively-established 
commissions. These commissions proposed sentencing formulas based on a variety of factors, but the 
two most important factors in any sentencing guideline scheme were the nature of the crime and the 
offenders’ criminal history. Some states enacted advisory sentencing guidelines that gave suggestions to 
judges statewide of what was considered an appropriate sentence that should be followed in most cases. Some 
states enacted mandatory sentence guidelines that required judges to impose presumptive sentences, the 
length or type of sentence that was presumed appropriate unless mitigating or aggravating factors were 
identified on the record. 
Sentencing guidelines generally differentiate between presumptive prison sentences and presumptive 
probation sentences. Judges who depart, or (select a different sentence, from the presumptive sentences can 
do a dispositional departure and impose prison when probation was the presumptive sentence or impose 
probation instead of prison. Judges may also do a durational departure in which they sentence the offender 
to a term length different than the presumptive term length, for example, giving an 18-month sentence 
rather than a 26-month sentence. 
Guideline sentencing allows for judicial discretion, but at the same time, limits that discretion. Judges 
must generally make findings when sentencing the offender to a term of incarceration that is different 
ALISON S. BURKE, DAVID CARTER, BRIAN FEDOREK, TIFFANY MOREY, LORE RUTZ-BURRI, AND SHANELL
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