San Diego Law Review

Document Type



This Article contends that properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so, at least for crimes against person and most other street crimes.

More specifically, the position defended in this Article is that, once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges set by the legislature. Compared to determinate sentencing, the sentencing regime advanced in this Article relies on wider sentence ranges and explicit assessments of risk, cabined only very loosely by desert. Compared to limiting retributivism, the key difference is that risk assessments are periodic rather than made at the front end, thus producing sentences that are much more individualized and flexible. Finally, post-sentence commitment based on risk would not make sense in an indeterminate sentencing regime that is already focused on that criterion.

The territory covered in this Article, particularly as it addresses the debate between deontological retributivists and utilitarians, is well trodden. But this Article seeks to provide new perspectives on the morality, legality, and practicality of indeterminate sentencing. It starts with an outline of what a properly constituted indeterminate sentencing regime would look like. It then defends this regime against numerous objections.