Defining determinacy: Components of the sentencing process ensuring equity and release certainty

Determinate sentencing has gained in popularity in recent years, yet the specific meaning of determinacy is not universally accepted. Determinacy is viewed as a means for providing prisoners with release certainty, a mechanism for increasing fairness in the sentencing process, or both. The purpose of this paper is to define the components of determinacy and to articulate the conditions of the sentencing and post-adjudication process necessary to fulfill these criteria. The discussion of fairness in sentencing is restricted to issues of procedural equity, or the degree to which sentencing decisions are made reliably. Release predictability involves providing inmates early in their prison stays with knowledge concerning their release dates. Sentencing equity and predictability depend on how the sentencing model is structured to deal with a series of discretionary decisions affecting criminal defendants throughout the judicial and correctional process. Six choice points are considered, three pertaining to the adjudication process and three to the post-adjudication period. Relevant to the adjudication process are: (1) the decision to incarcerate; (2) characteristics of the penalty scaling system, including numbers of penalty ranges and offense categories, and overlap among penalty ranges; and (3) other mechanisms, including aggravating and mitigating circumstances and concurrent and consecutive sentences. The following post-adjudication processes were addressed: (4) the parole review process; (5) the use of good time; and (6) revocation from supervised release. Explication of the criteria for procedural equity and predictability should aid in defining parameters necessary for effective reform.