DETERMINATE SENTENCE
Determinate Sentence
A sentence to confinement for a fixed or minimum period that is specified by statute.
Determinate sentencing encompasses sentencing guidelines, mandatory minimum sentences, and enhanced sentences for certain crimes. Sentencing guidelines allow judges to consider the individual circumstances of the case when determining a sentence, whereas mandatory minimum and enhanced-sentence statutes leave little or no discretion to judges in setting the terms of a sentence.
Determinate sentencing statutes have existed
at various times throughout the history of the
United States. They became popular in the 1980s, when public concern over crime increased dramatically and the public demanded stringent laws to address the crime problem. Operating under the belief that certainty of punishment deters crime, Congress and the states responded by passing laws that dictate specific sentences for certain crimes or for repeat offenders. These laws have been a source of considerable controversy.
Many of the determinate sentencing measures adopted during the 1980s and 1990s were
by-products of the war on drugs. They require
strict, harsh, and non-negotiable sentences for
the possession of narcotics. These stringent laws
have led to some unintended and inconsistent
results. For example, repeat offenders who have
information that is useful to the police some-
times receive lighter sentences than do nonvio-
lent, first-time offenders, in return for their
testimony.
Another type of determinate sentence that
has been popular since the 1990s is the “three-
strikes-and-you’re-out” law, which mandates a
heavy sentence for anyone who is convicted of a
third felony. For example, California Penal
Code, section 667, requires a minimum sentence
of 25 years to life for a third conviction for a
serious felony, and it doubles the usual sentence
imposed for a crime when it is a second offense.
The purposes of the law are to incapacitate
repeat offenders and to deter others from com-
mitting crimes.
The constitutionality of the three-strikes
laws has come into question in a number of
decisions. In 2003, the U.S. Supreme Court, in
Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166,
155 L. Ed. 2d 144 (2003), held that these laws do
not violate the Eighth Amendment’s prohibition
against CRUEL AND UNUSUAL PUNISHMENT,thus
reversing a decision by the Ninth Circuit Court
of Appeals. The decision resolved a dispute
between state and federal courts in California.
Leandro Andrade received a life sentence
with no possibility for PAROLE for 50 years for
stealing nine videotapes worth a total of
$153.54. The California trial court applied the
three-strikes provision and elevated the crimes
to felonies. These felony convictions for petty
theft counted as “strikes” three and four against
Andrade. Andrade appealed his sentence to a
California appellate court, which upheld the
trial court’s ruling and rejected, among other
claims, that the sentence violated Andrade’s
EIGHTH AMENDMENT rights.
Andrade then filed a petition for a writ of
HABEAS CORPUS with a federal district court in
California, which denied the petition. He then
appealed to the Ninth Circuit, which reversed
the denial of the petition in Andrade v. Lockyer,
270 F.3d 743 (9th Cir. 2001). The appeals court
noted that, while all other states enhance sen-
tences for repeat offenders, California’s law is
unusually strict. It held that the sentence was so
grossly disproportionate to Andrade’s crime that
it violated the Eighth Amendment’s prohibition
against cruel and unusual punishment. Andrade
would not be eligible for parole until age 87.
The Ninth Circuit’s opinion relied in part on
the U.S. Supreme Court’s decision in Solem v.
Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d
637 (1983), which held that the Eighth Amend-
ment prohibits sentences that are dispropor-
tionate to the crime committed. The Ninth
Circuit panel disapproved the ruling by the Cal-
ifornia appellate court that had heard Andrade’s
original appeal, because the state court had dis-
regarded Solem in making its decision. In the
months that followed the Ninth Circuit’s deci-
sion, two California courts of appeals affirmed
trial-court sentences of 25 years to life for petty
theft convictions. According to the California
court, the Ninth Circuit’s majority opinion in
Andrade was flawed. More than a dozen addi-
tional California courts refused to follow
Andrade because the facts in those cases could be
distinguished from those in Andrade.
The Supreme Court in Lockyer v. Andrade analyzed the Ninth Circuit’s decision in light of the Antiterrorism and Effective Death Penalty Act, 28 U.S.C.A. § 2254(d)(1) (2003). Under that statute, a federal court may grant a writ of habeas corpus if a state court correctly identifies a legal principle from U.S. Supreme Court decisions, but incorrectly applies the principle to the facts of the case under review. The Ninth Circuit had determined that the California appellate court had improperly applied “clearly established” U.S. Supreme Court precedent to Andrade’s case.
The Court found that prior decisions by the
Court had not provided sufficient clarity on the
issue, and that the California appellate court had
not misapplied “clearly established” precedent.
The fact that the 50-year sentence was essentially
a life sentence because of the age of the defendant
did not change the outcome, a point that
Justice DAVID SOUTER raised in a dissent. Justice
SANDRA DAY O’CONNOR, who wrote the majority
opinion, disagreed, stating that Justice
Souter’s argument “misses the point.” According
to the analysis by the Court, because the state
court had not violated a “clearly established”
principle, the federal court should not have
granted the writ of habeas corpus.
Although the Court focused on the standard
for a federal court granting habeas corpus, the
effect of the decision is that the three-strikes law
does not violate the Eighth Amendment.
Accordingly, the several states are generally free
to enact such sentencing provisions, and the
debate for and against such laws has been left to
the various state legislatures.
Supporters of three-strikes laws maintain
that the severity of the third crime is not important.
Rather, the pattern of violations indicates a
life of lawlessness deserving severe penalty. Critics
contend that the punishment is sometimes
out of proportion to the crime. They point to
the example of Jerry Williams, who, in January
1995, was convicted of felony petty theft for
stealing a slice of pizza from a group of children
in Redondo Beach. Usually, petty theft is a misdemeanor;
prosecutors were allowed to charge
Williams with felony petty theft because he had
previous felony convictions. Williams’s 1995
conviction triggered the three-strikes law and
brought him an automatic sentence of 25 years
to life. A similar case involved Steve Gordon,
who had turned to petty crime to support his
drug habit after he was fired from his job in
1985. Gordon was convicted of stealing $200
from the cash register at a fast-food restaurant
and of snatching a purse, and then, in March
1994, of attempting to steal a wallet. His third
conviction triggered the mandatory minimum
sentence of 25 years to life.
Many judges oppose determinate sentencing
when it prescribes mandatory minimum terms.
A 1994 survey of federal judges conducted by
the AMERICAN BAR ASSOCIATION found that a
majority strongly supported repealing most or
all mandatory minimum sentences. In March
1994, during a hearing before the House Appropriations
Committee on the U.S. Supreme
Court’s budget, Justice ANTHONY M. KENNEDY,
of the Supreme Court, called mandatory sentence
legislation imprudent, unwise, and potentially
unjust. Most judges feel that sentencing
guidelines, which prescribe sentences that may
be altered in accord with aggravating or MITIGATING
CIRCUMSTANCES, are preferable to
mandatory minimums.
Some judges have attempted to circumvent
determinate sentences, but their efforts have
failed. In July 1994, Judge Lawrence Antolini, of
the Sonoma County, California, Superior Court,
challenged California’s three-strikes law by sentencing
Jeffrey Missamore, a three-time offender,
to PROBATION and drug treatment instead of the
25 years to life that the statute mandated. The
state petitioned the appellate court to overturn
Antolini’s probation order. The Superior Court
of Sonoma County granted the writ, stating that
it is not the role of the judiciary to question the
appropriateness of the public policy decisions
embodied in the three-strikes law. The court
held, “If people (including judges) feel those
provisions . . . lead to unfair results, the law can be changed” (People v. Superior Court, 45 Cal.
Rptr. 2d 392 [Cal. App. 1995]).
Another divisive issue in the determinate
sentencing debate is the disparate effects of new
laws concerning cocaine. The penalties for the
possession of crack cocaine are substantially
higher than those for powder cocaine. Crack is a
less expensive form of cocaine that is smoked
rather than snorted. Because crack is less expensive
than powder, it is used more widely by
young people, poor people, and members of
minority groups—who constitute a disproportionate
number of those incarcerated on drug
charges. Critics have attacked the enhanced and
mandatory penalties for possession of crack as
discriminatory.
Whether determinate sentences work to
deter crime is an open question. Both sides of
the debate summon statistical evidence to support
their positions. Opponents claim that from
1986 to 1991, when determinate sentencing was
used extensively, violent crime continued to
increase, even as the rate of incarceration rose
dramatically. Supporters counter that the FBI’s
Uniform Crime Index shows a four percent drop
in serious crime between 1989 and 1993, suggesting
that perhaps stringent sentencing is
beginning to affect the crime rate. Supporters
also cite statistics indicating that the number of
federal drug convictions doubled from 1985 to
1993. Opponents counter that most of those
who were convicted were first-time offenders or
low-level drug dealers, not the powerful drug
kingpins whom the laws were designed to
ensnare.
FURTHER READINGS
Forer, Lois G. 1994. A Rage to Punish. New York: Norton.
“Mandatory Sentencing: Do Tough Sentencing Laws Reduce
Crime?” 1995. CQ Researcher (May 26).
O’Connell, John P. 1995. “Throwing Away the Key (and State
Money).” Spectrum: the Journal of State Government
(winter).
Reske, Henry J. 1994. “Judges Irked by Tough-on-Crime
Laws.” American Bar Association Journal (October).
Sauer, Kristen K. 1995. “Informed Conviction: Instructing
the Jury about Mandatory Sentencing Consequences.”
Columbia Law Review 95: 1232.
Sklansky, David A. 1995. “Cocaine, Race, and Equal Protection.”
Stanford Law Review 47: 1283.
