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Beyond Rehabilitation: A New Theory of Indeterminate Sentencing

NCJ Number
American Criminal Law Review Volume: 48 Issue: 3 Dated: Summer 2011 Pages: 1247-1292
Michael M. O'Hear
Date Published
46 pages
This paper proposes a new normative model for the use of indeterminate sentencing.
Towards the end of the 20th century courts stopped using the practice of indeterminate sentencing which enabled judges to sentence offenders to a range of potential imprisonment with the actual release date determined at a later time. This process was associated with the rehabilitative paradigm of criminal law popular in the mid-20th century that later fell out of favor by the 1970s. With the resurgence of parole as an integral part of sentencing, this article examines a new normative model for indeterminate sentencing grounded in a retributive, communicative theory of punishment in hopes of bringing stability and coherence to the sentencing aspect of the U.S. criminal justice system. The article examines the major themes that are found in contemporary retributivism, such as seeing punishment as a form of communication and looking at it from a system-wide perspective. The author then presents one particular theory of retributive punishment that is used as the basis for the new normative model of indeterminate sentencing. He presents in detail his reasons for using indeterminate sentencing based on a retributive theory of punishment as opposed to a rehabilitative one. Appendix