Determinate Sentencing

The phrase “determinate sentencing” means that an offender is sentenced to a specific amount of time in jail upon his conviction. Determinate sentencing is only used in a handful of states. Most of the country instead relies on indeterminate sentencing, which is a sentencing that refers to a range of time, rather than a set period. To explore this concept, consider the following determinate sentencing definition.

Definition of Determinate Sentencing


  1. A prison sentence for a fixed amount of time, rather than a range of time, or indeterminate length of time.


1350-1400       Middle English

What is Determinate Sentencing

Determinate sentencing is the process of a court assigning a set prison term to a convicted offender. For example, determinate sentencing would see an offender being sentenced to two years in prison, rather than “up to two years,” which would allow for an early release. Determinate sentencing is less common than indeterminate sentencing, which is a court’s sentencing of an offender to a range of time in jail, such as a range of one to three years.

Most sentences include some type of probation or incarceration. Sentencing is typically up to the judge’s discretion, but in certain cases the judge’s hand is forced by a statute that orders a minimum term of imprisonment. An example of this is burglary, which is punishable by one to five years in state prison, in some jurisdictions, according to the law.

Determinate sentencing grew in popularity in the 70s and 80s, and it is often seen as being a tougher system due to its mandatory minimum sentences. Those who advocate for determinate sentencing believe it to be more fair. This is because, in their view, judges who have little say in an offender’s sentence are forced to issue similar sentences for similar crimes. However, in the face of prison overcrowding and lower rates of crime, indeterminate sentencing has been making a slow comeback. This is especially true for drug crimes, where rehabilitation is seen as a realistic and reasonable outcome for many convicted offenders.

Types of Sentencing

There are several types of sentencing that an offender can receive, in addition to a determinate or indeterminate sentence. For instance, someone can receive a minimum or maximum sentence, which amounts to either the least or most amount of time he can be incarcerated for committing a particular crime. The types of sentencing that can be assigned depend on such things as the crime that was committed, whether the offender has a criminal history, or if the crime at issue is his first offense. What follows are some examples of the types of sentencing that an offender can receive.

  • Concurrent Sentence – A sentence that is served simultaneously with another sentence.
  • Consecutive Sentence – A sentence that begins immediately after the completion of another sentence. Consecutive sentences are assigned for several crimes, or several counts that are assigned at the same time.
  • Deferred Sentence – A sentence that is postponed for some reason until a later date.
  • Life Sentence – A sentence that orders an offender to spend the rest of his life in jail, though in many jurisdictions there is an opportunity for parole after a certain period of time.
  • Mandatory Sentence – A specific sentence that is set by law, handed down upon the committing of a particular crime. A judge does not have permission to alter a mandatory sentence, as it has been previously established by law.
  • Presumptive Sentence – A sentence that specifies a baseline for an offense so the judge has some sort of guideline to follow. For instance, burglary carries a presumptive sentence of one to three years, a judge in the jurisdiction would be reasonable in sentencing an offender to two years in prison for that crime.
  • Straight Sentence – Also called a “flat” sentence, this is a fixed, or determinate, sentence. There is no minimum or maximum sentencing period.

Difference Between Determinate Sentencing and Indeterminate Sentencing

The difference between determinate sentencing and indeterminate sentencing lies in whether the court has any flexibility in assigning a sentence. Determinate sentencing is the process by which a judge sentences an offender to a specific amount of time in prison or jail.

Indeterminate sentencing, however, is the more common method of sentencing. This is the process by which an offender is sentenced to a range of time in jail, such as one to three years, or two to five years. Another difference between determinate sentencing and indeterminate sentencing is that the judge does not have authority to alter the sentence, when the law specifies a determinate sentence. For example, a determinate sentence may be an automatic prison term of three years for a burglary.

The main difference between determinate sentencing and indeterminate sentencing is right there in the name: a determinate sentence means that the sentence has already been “determined” by the law. An indeterminate sentence, however, suggests to an offender that he will serve a minimum to a maximum amount of time for the crime committed. For instance, if the offender receives a sentence of “one to five years,” then he knows the least amount of time he will spend in prison will be one year, and the most amount of time will be five years.

While in prison, the state’s parole board will, at some point, hold a hearing to determine when during the indeterminate sentence the offender can be released on parole. Typically, the offender must serve the minimum amount of his sentence before the parole board will even meet to discuss his case. Most states, however, require that he serve at least half of his sentence before receiving such a benefit.

Pros and Cons of an Indeterminate Sentence

The hope that supports an indeterminate sentence is that prison will rehabilitate some prisoners if they are provided with an incentive to behave while incarcerated – the incentive being a potential early release. The goal of an indeterminate sentence is to show offenders that those who behave the best will be paroled closer to their minimum term than those who do not.

The problem with indeterminate sentencing, according to critics, is that is gives the parole board too much power. This can lead to discriminatory or otherwise illogical results. A related accusation is that minorities and other prisoners who do not network with the right people while in prison will receive decisions from parole boards that are overly harsh. Conversely, there is concern that offenders who are less deserving will receive an earlier release.


When an offender receives parole, he is permitted to serve out the rest of his sentence under community supervision. He is able to leave prison, but remains bound by certain restrictions. For instance, he will be required to check in from time to time with his parole officer for status updates on how he is doing. Further, he can be sent back to prison if he violates his parole in any way. Such parole violations can include being arrested for a different crime, or failing to find and keep a job. Some factors that are considered when a parole board is considering granting parole include:

  • The original sentence handed down by the judge
  • The amount of time the offender has already served in prison
  • The offender’s behavior while in prison
  • The offender’s criminal history
  • The opinions of the victim and the victim’s family
  • The offender’s potential risk to the public’s safety
  • The offender’s willingness to comply with the conditions of his parole

Determinate Sentencing Example in Murder Case

An example of determinate sentencing in a court case involved a litany of sentences that were imposed upon a man convicted of murder. On August 2, 1996, Patrick Felix fired several shots into a van, killing one individual and wounding two others. At the conclusion of his criminal trial, the jury convicted Felix of first-degree murder, as well as found him guilty on two counts of premediated attempted murder.

Felix was sentenced to 25 years to life for the murder, plus a sentence enhancement of an additional 10 years for his use of a firearm. He received the same sentence (25 years to life with an additional 10-year enhancement) for each of the attempted murder counts. These attempted murder sentences were to run concurrently with one another, and consecutive to the murder term. That means that he would be required to serve out the entire murder term, and then serve the combined term for the attempted murder.

Felix appealed this decision, and the Court of Appeals ordered a modification of his sentences. To wit, only one-third of the sentence enhancements was to be imposed on each of the attempted murder charges. The murder sentence, however, was affirmed. Felix then appealed to the Supreme Court of California. The Court reviewed whether Felix should have received the full ten years for each of the sentence enhancements, or if each should have been reduced to one-third, as ordered by the Court of Appeals.

Perhaps surprisingly, the Court actually reversed the Court of Appeals’ decision in full. The Court ruled that the sentences imposed by the trial court, including the sentence enhancements, were imposed correctly. Specifically, the Court wrote:

“A review of the relevant statutes shows that these cases and the comment are correct. Section 1170, subdivision (a)(1), makes clear that the DSA involves ‘determinate sentences.’ Section 1170, subdivision (a)(3), states that the DSA does not ‘affect any provision of law that … expressly provides for imprisonment in the state prison for life,’ thus demonstrating that such a sentence is not determinate. Moreover, both now and when defendant committed his crimes, section 669 provided that whenever a ‘life sentence’ runs consecutively to a ‘determinate term,’ the determinate term ‘shall be served first and no part thereof shall be credited toward the person’s eligibility for parole as calculated pursuant to Section 3046 or pursuant to any other section of law that establishes a minimum period of confinement under the life sentence before eligibility for parole.’ Section 3046, in turn, provides, as relevant, ‘No prisoner imprisoned under a life sentence may be paroled until he or she has served at least seven calendar years or has served a term as established pursuant to any other section of law that establishes a minimum period of confinement under a life sentence before eligibility for parole, whichever is greater.’ All of these statutes clearly show that a straight life sentence, as well as a sentence of some number of years to life, is not a determinate sentence within the meaning of the DSA.”

Accordingly, the Court concluded that both straight life sentences and sentences ranging from a number of years to life are both indeterminate sentences. As such, these sentences are not subject to California’s Determinate Sentencing Act (DSA). The DSA states that, when a court orders an offender to serve consecutive jail terms for two counts or more, then one term serves as the main term, with the others becoming subordinate to the main term.

The DSA also supports courts’ decisions to impose a sentence enhancement. Typically, courts impose the full sentence enhancement for the main term, but only one-third of the enhancement for the subsequent terms. This was why Felix appealed, albeit unsuccessfully, to have each of his sentence enhancements reduced to the one-third.

Related Legal Terms and Issues

  • Jury – A group of people sworn to render a verdict in a trial, based on evidence presented.
  • Probation – The release of an offender from jail, provided he follows a pattern of good behavior while under state supervision.
  • Sentence – The punishment assigned to an individual who is found guilty of a particular offense.
  • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.