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Public protection and the trend to determinate sentence structure.

The last five years has witnessed a marked shift in the philosophy of sentencing and penology throughout the United States. This shift has been one from the so-called rehabilitative model or medical model of corrections to the justice model as propounded, for example, by Professor Norval Morris.l.2 Nowhere in the United States has this shift been more clearly evident than in California, which had previously been most active in implementing the rehabilitative model. As many of you are aware, sentencing in California was completely indeterminate from 1917 until 1977. As I have observed it, this change of direction has been the result of changes in political philosophy, specifically the assertions of the rights of the individual against the State, rather than the result of assessment of the successes or failures of the rehabilitation model. Whether or not you consider it a cause of the change, there has also been disillusionment with the results of rehabilitative efforts and a debunking of the capability of the courts and clinicians to predict future criminal behavior. 3 The advocates of the justice system have not so much attacked rehabilitation as totally unsuccessful, or attacked discretion in sentencing and paroling as totally without support, but have argued that they are insufficiently strong to balance the loss of individual rights. It is certainly true that the indeterminate mode of sentencing is based in large part on the assumption that it is possible to tell when a person can safely be released to the community, and also on the assumption that people undergo changes while incarcerated, some of which at least may be of a positive nature, so that indeterminate sentencing is inextricably tied to the medical model. Throughout the 50's and the 60's in this country, the trend was toward more indeterminate sentencing in most jurisdictions. California sentences were fixed by statute between a very broadly separated minimum and maximum, such as one year to life, six months to ten years. In those decades, the trend was toward more discretion to be exercised by parole boards and courts. The textbooks of criminology and penology generally stated that the purpose of imprisonment was threefold: (1) To punish individuals who had committed crimes.