In California, an indeterminate sentence is a prison sentence with a minimum amount of time, but no fixed release date. An example is a sentence of “10 to 20 years in prison.” It is up to the parole board to determine the date of release. It is contrasted with a determinate sentence, which has a specific length of time.
| Indeterminate sentence | Determinate sentence | |
| Term length | A range of time, like “20 years to life” | A specific term, like “3 years” |
| Criminal offenses | Typically for serious crimes and violent felonies | Generally for misdemeanors and low-level felonies |
| Who sets the release date | Parole board | Sentencing judge |
Indeterminate sentencing in California
An indeterminate sentence is any term of confinement that comes in a range, rather than a particular amount of time. Some examples are:
- 5 to 15 years in state prison, or
- 20 years to a life sentence.
This sentence is imposed by the judge presiding over the sentencing hearing. Indeterminate sentences are generally for serious and violent felony convictions. In California, two examples of indeterminate sentences are for:
- First-degree murder (25 years to life),[1] and
- third offenses under California’s Three Strikes Law (25 years to life).[2]
Once you have served the minimum amount in the range, the parole board will periodically review your case. If the board decides that you have rehabilitated and are not a threat to public safety, they may grant you early release. If the board decides that you have not, you will remain in custody.[3]
Indeterminate sentences serve several functions in the criminal justice system. They:
- reduce overcrowding in the prison population,
- promote and reward good behavior from inmates, and
- provide flexibility for sentences.
However, the criminal defense attorneys at our law firm have found that they also:
- create uncertainty for inmates, who no longer know exactly what their sentence length will be,
- give the members of the parole board lots of discretion, which can be used discriminatorily, and
- can be costly, as the parole board has to be paid and the cases reviewed.
How to get an earlier release
If you are serving an indeterminate sentence, the best way to get an earlier release is to show that you have rehabilitated. You need to convince the parole board that further incarceration would be pointless and that, were you to be released, you would not re-offend.
Our criminal defense lawyers have found that some of the factors that the parole board tends to consider are:
- the severity of the criminal conviction,
- whether you are likely to commit a crime if released,
- your behavior while in prison,
- your level of remorse,
- your age,
- whether you have used your time in prison productively, like if you took classes, earned a degree, or worked, and
- letters supporting your release or advocating against it.
The opportunity to get an early release only begins once you have served the minimum sentence in the indeterminate term. If your sentence was “15 years to life,” this would be after serving the minimum term of 15 years. If your sentence was “life with the possibility of parole,” it would typically be 7 years into your sentence.
Under Proposition 57, this amount of time can be reduced by accumulating good time credits in some cases. However, sentence enhancements can increase it.
You would go before the parole board for a parole suitability hearing. If you are classified as a sexually violent predator (SVP), this would be a SVP parole hearing.
If the parole board is satisfied that you are rehabilitated and would not pose a threat to the public, you will be released on parole.
If the parole board is not satisfied, it will deny parole and set another hearing date several years in the future.
Determinate sentencing
A determinate sentence is one that sets a specific term of confinement. That specific term is typically in months or years. Most county jail or state prison sentences are determinate under California law.
Even when a criminal statute imposes multiple different prison sentences, the judge still chooses just one of them when setting the prison term.
For example: Josh is charged with a felony offense of assault with a deadly weapon. This carries a 2, 3, or 4-year sentence in state prison. Josh accepts a plea bargain and the judge, after considering the factors of the criminal case and his criminal history, which includes a prior conviction for a serious felony, imposes a determinate sentence of 4 years, the maximum sentence allowable.
The determinate sentencing system has been the norm in California criminal law since the California Legislature passed the Determinate Sentencing Law in 1977. According to a staff memo from the Committee on Revision of the Penal Code, this sentencing structure:
“Was enacted because of widespread dissatisfaction with the indeterminate system… [which] gave a huge amount of power to the parole board… When a court [sent someone to prison], the length of the sentence was out of its hands, and the parole board determined when someone would be released from prison. There were almost no statutory or regulatory limits on how the parole board functioned.”[4]
Legal Citations
[1] California Penal Code 187 PC.
[2] California Penal Code 667 PC.
[3] See, e.g., In re Butler, 4 Cal.5th 728 (2018).
[4] Memorandum 2021-11, “Sentencing Practices in California and Related Matters,” July 9, 2021.
