Public discourse about criminal punishment routinely centers on the sentences judges publicly impose in court. Yet, in most American jurisdictions, the sentence publicly imposed bears little resemblance to the term of imprisonment an offender will actually serve. Through statutory analysis and sentencing and release data, this Article demonstrates that in all but a handful of states, legislatively authorized sentence discounts—often exceeding fifty percent and in many cases reaching seventy-five percent or more—systematically distort the meaning of the announced sentences, even when those sentences are characterized as “minimum” terms. These discounts are also not confined to minor offenses. States routinely apply them to serious violent crimes, including rape, aggravated assault, robbery, and murder. The Article argues that this gap between announced sentences and actual time served is not accidental but institutionalized.
As Part II details, this institutionalized deception allows states to project a strong deterrent threat and to limit the costs of incarceration. Both Republican- and Democratic-controlled states have embraced this practice for financial or ideological reasons.
Part III contends, however, that this system of sentencing deception carries substantial social costs. Because most crimes are committed by repeat offenders, the deterrent effect of inflated sentences is largely illusory. More damaging is the erosion of the criminal justice system’s credibility once the public recognizes that announced sentences do not mean what they appear to mean. As institutional trust declines, so too does the system’s normative authority to secure people’s assistance, cooperation, acquiescence, and compliance, as well as its ability to induce people to internalize its norms.
These concerns help explain the “truth in sentencing” movement examined in Part IV, including the federal Sentencing Reform Act of 1984, which requires offenders to serve at least 85% of their imposed sentences—though few states have followed suit.
The Article does not at all argue for longer prison terms but rather for greater transparency. Whatever imprisonment policies states choose, they should accurately disclose at sentencing how offenders will be punished. Greater transparency would mitigate the harms of institutionalized deception and enable more rational and informed criminal justice policymaking.
* Colin S. Diver Professor of Law at the University of Pennsylvania. As a matter of full disclosure, Professor Robinson was one of the original Commissioners of the United States Sentencing Commission, which was created by the federal Sentencing Reform Act of 1984, which also shifted the federal system to one of “truth in sentencing.” We thank Sarah Robinson for her extensive research contributions.
* Hugh Rennie is a member of the University of Pennsylvania Law School Class of 2025.
The full text of this Article is available to download as a PDF.