Fixed Terms Match the Time to the Crime

Any truly determinate sentence to prison, such as California has for most crimes, must by definition come to an end--whether the criminal or the public is ready.

But the release of notorious offenders like Lawrence Singleton, convicted of the vicious rape and mutilation of Mary Vincent, has refocused attention on a dilemma that has plagued lawmakers and administrators since the inception of the determinate sentence a decade ago: What happens when the time runs out and a prisoner is still dangerous?

Under the former system of indeterminate sentencing, the Legislature established extremely broad penalties. The sentence for first-degree robbery, for example, was five years to life. The idea was that the offenders should be treated for their criminality and released when well. Unfortunately, it is very difficult to treat criminals for their criminality, and even harder for anyone to tell when they are “cured.”

In the late 1960s and early ‘70s the concept came under broad attack nationwide. In 1976 California’s Determinate-Sentence Act was pushed through the Legislature by an uneasy coalition of liberals and conservatives. All were disenchanted with the indeterminate sentence, but for different reasons.

Conservatives pointed to heinous crimes committed by prisoners released on parole “too soon,” while liberals argued that many prisoners were arbitrarily held in confinement much longer than necessary to protect the public.

The determinate-sentencing system that was adopted in California provides for three possible sentences for each of hundreds of felonies. (Murder and kidnaping for ransom still come under indeterminate-sentencing rules.) The judge must select the middle term unless there are circumstances in mitigation or aggravation. For example, the sentence for first-degree robbery is three, four or six years. The basic sentence may be increased by specific amounts of time for other factors, such as the use of a firearm, infliction of injury, prior felony convictions and so on. Sometimes consecutive sentences may be imposed, usually under a complex formula.

The result is a judicially fixed specific sentence. At the end of that sentence the prisoner must be released. The term is reduced by the application of work credits on a day-for-day basis. Six months of full-time work making license plates gets six months off the term.

Even before the determinate-sentence law went into effect, legislative efforts were under way to prevent the release of dangerous prisoners. The efforts took two directions.

The most immediately successful was to lengthen sentences. A 1978 bill increased the penalties for 40 violent crimes. That approach continues to this day, and is one reason the number of persons confined in state prisons rose from a pre-determinate-sentence total of 21,000 to more than 61,000 today.

The Singleton case itself contributed to the passage of then-controversial legislation that imposed full consecutive sentences for violent sex offenses on multiple victims and permitted such sentences for multiple offenses on the same victim. Were he to commit the same crime today, Singleton could get a much longer sentence than the 14-year term that he received in 1979.

The second approach was to seek commitment of prisoners to a mental-health facility at the end of their determinate terms if they were “mentally disordered violent offenders.” Under terms of legislation passed in 1986 but yet to be tested in the courts, prisoners with severe mental disorders relating to their crimes can be held in state hospitals until they are no longer mentally ill.

But even when notorious offenders do get out of prison they are not free of all control. Parole conditions can be quite stringent and strictly enforced. Special conditions for Singleton prohibit his leaving his county of residence, contacting the victim or his own family, and drinking alcohol, and they require participation in an Antabus program, attendance at an out-patient psychiatric clinic and observance of a curfew. Enforcement is to include daily testing for alcohol, periodic testing to detect any use of narcotics, and extensive surveillance. Obviously, that kind of attention must be reserved for only a few of the 35,000 parolees under supervision in California.

The fault of the determinate sentence is its virtue. The determinate sentence matches the time to the crime rather than to the elusive goal of rehabilitation. It penalizes criminals for what they did, not for what they might do, and it does so on a reasonably uniform basis. However, it does not accommodate each situation and circumstance subject to public concern.