By Kevin R. Reitz, Edward E. Rhine, Allegra Lukac, and Melanie Griffith

“Indeterminacy” is the product of uncertainty, after a judge has pronounced a prison sentence, about later official decisions that will influence the actual time served by the defendant. The uncertainty extends over many future decisions, such as good-time awards or forfeitures by prison officials and release or release-denial decisions by parole boards. To the extent these later decision patterns are unpredictable, the judge’s sentence is “indeterminate” on the day of sentencing. When prison sentences are highly indeterminate, many months or years of time-to-be-served can be unforeseeable in individual cases. The mechanics of indeterminacy in prison sentencing vary enormously from state to state, and are not well understood. In many states, time-served policy is largely administered at the “back end” of the sentencing system. If prison policy is aimed toward retribution or public safety, it is back-end officials who ultimately choose how best to achieve those goals. This raises critical questions of whether they are well-positioned to be stewards of the public interest, and whether their procedures are adequate to the task. Such questions are especially urgent in a nation with high incarceration rates. In most American jurisdictions, however, back-end decisionmaking about prison-sentence length has low visibility and is unglamorous. Very few people pay serious attention to its workings. From a systemic perspective, indeterminacy can be seen as the field of play in which back-end officials with time-served discretion exercise their powers. The larger the field—the greater the degree of indeterminacy—the greater the whole-system impact of back-end decisions. Indeterminacy builds up cumulative effects over hundreds and thousands of cases. In systems with high degrees of indeterminacy, a substantial amount of control over prison population size is located at the back end of the system. In many states, back-end officials have more to say about prison numbers than sentencing courts. Yet few people are aware of this.

Minneapolis, MN: Robina Institute of Criminal Law and Criminal Justice, University of Minnesota, 2022. 145p.