Leymon 3
Literature Review
Prior to 1975 the criminal justice system was dominated by indeterminate sentencing. This type of
sentencing placed much discretion with the judge (and in a few jurisdictions, the jury) in rendering the
degree and type of sentence (Roberts, 1996). Legislators at both the state and federal level established
rather loose and wide sentencing ranges, with any combination of jail and probation. Judges were
allowed wide latitude to select a sentence within the relatively wide prescribed range and establish
minimum and maximum sentencing lengths. Relatively few set laws or procedures defined how the judge
was to determine the sentence. Parole boards acting independently of the judicial system and largely
independent from legislators then determined if the prisoner had been properly rehabilitated and was
ready for release (Albonetti, 1997; Kempf-Leonard and Sample, 2001; Marvell, 1995). This model of
corrections was based largely on the rehabilitation theory of imprisonment. It was believed that the
correction system could reform convicted felons within prisons. Upon release, the convict would be
reintroduced as a rehabilitated individual who was socially functional and law abiding. Parole boards
were established to determine if the individual had served enough time and completed any prescribed
programs and were “fit” to return to society.
Beginning during the 1970’s, reaching new heights during the 1980’s, and continuing today,
indeterminate sentencing came under scrutiny (Herbert 1997, Reitz 2000). A number of problems were
advanced, including complaints about the arbitrariness of the sentencing procedure. The judge could use
a large variety of information to determine the sentence, including evidence that was inadmissible during
trial; items such as place of residence, known associates, hearsay evidence, and probation officer reports
(Albonetti, 1997). As a result these complaints and others, a desire to limit the variability in sentencing
was sought (Hepburn and Goodstein, 1986; Miethe and Moore, 1985). Both liberals and conservatives
championed this agenda; conservatives saw this as an opportunity to limit the powers of what they called
“activist judges” who used their power to “legislate from the bench”. Liberals used the argument as a
perceived opportunity to limit the discretion of judges who might be using their power to be overly
arbitrary and punitive. Furthermore, many civil rights and social justice organizations saw the changes as
Convention