Luck or Law? The Constitutional Case Against Indeterminate Sentencing

Posted: 2 Jun 2009 Last revised: 9 Jul 2009

See all articles by Dan Markel

Dan Markel

Florida State University College of Law (Deceased)

Date Written: June 1, 2009


In the majority of states indeterminate sentencing schemes prevail -- under which the decision for whether a person serves anywhere from one year to a life in prison for a given crime is left largely to the unfettered discretion of a judge. Indeed, ever since the Supreme Court decided Booker v. United States and thereby rendered the federal sentencing guidelines “effectively advisory,” many state courts have read Booker to lend an imprimatur upon their indeterminate sentencing schemes. Thus, in many jurisdictions, virtually no restraints upon judicial and/or executive discretion exist to ensure that similarly situated offenders convicted of similar criminal conduct will, within the same sovereign jurisdiction, receive punishments that are roughly similar to each other.

This Article examines the case for, and the implications of, a finding that indeterminate sentencing schemes are impermissible under the federal Constitution. Looking at the history of the Framing Period and selected areas of the Supreme Court’s jurisprudence over the last forty years, this Article explicates the constitutional restraints on arbitrary and/or discriminatory distributions of penalties, and finds little persuasive basis for the continued survival of indeterminate sentencing schemes. To the extent the Supreme Court is reluctant, as a matter of institutional competence, to make that finding explicit, the Article urges legislators at the federal and state levels to shoulder their co-equal burden of implementing the Constitution’s commitment to restraining the random, arbitrary, or discriminatory imposition of substantial punishment.

Suggested Citation

Markel, Dan, Luck or Law? The Constitutional Case Against Indeterminate Sentencing (June 1, 2009). FSU College of Law, Public Law Research Paper No. 376, Available at SSRN:

Dan Markel (Contact Author)

Florida State University College of Law (Deceased)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics