The Sentencing Mess

In Brooklyn last March, two young thugs named Kazle Anthony and Stephen Batten forced three butchers into a walk-in icebox, robbed them of $3,500, shot each of them in the head twice, and finished them off with meat cleavers. After a jury convicted them of first-degree murder, Justice David L. Malbin called the killers' crime "one of the most atrocious in this country."

Shortly before the thugs were tried, however, New York had abolished the death penalty for all but police killers. As a result, Justice Malbin sentenced the killers to life imprisonment--then angrily noted that they will be eligible for parole in 26 1/2 years. Worse, said Malbin, "there is a paradox in the law": had their victims lived, the men could each have been handed 120 years in consecutive sentences for assault and robbery--and not been eligible for parole for 40 years. "I'm not a tough guy," said the judge, "but when a man kills three people, I believe he has forfeited his right to life in society."

Criminal-law experts have faulted Malbin for disregarding the fact that lifers are paroled by parole boards only if they deserve it. Under a forthcoming (1967) change in New York law, the critics added, thugs whose victims survive would be eligible for parole in 8 1/2 rather than 40 years. Despite such objections, though, Malbin's basic point is sound; across the country, sentencing is an illogical mess.

Amazing Disparities. In theory, U.S. penology long ago shifted from revenge to rehabilitation. Yet the U.S. is apparently the only country where a sentence of 120 years is even conceivable. "Our criminal laws are the most severe in the world," says former U.S. Prisons Director James V. Bennett, "and our legislatures are still at work making them more severe."

As one result, amazing disparities exist between states. The time served for homicide in Texas is usually about 5 1/2 years, in Illinois 16 1/2 years. The maximum sentence for inducing abortion ranges from one year in Kansas to 20 years in Mississippi. For statutory rape, a man can get a $500 fine in Maine, ten years in New York, 50 years in California, 99 years in New Mexico, and death in Delaware.

No responsible critic argues that all 50 states can or should have uniform sentences. Cattle rustling, for example, is obviously more antisocial in Texas than in Connecticut. Even so, astonishing inequities also exist within the laws of a single state. In California, a boy who breaks into a car and rifles the glove compartment can get up to 15 years; for stealing the whole car, he gets no more than ten years. In Colorado, dog stealing is punishable by ten years; dog killing, by six months and a $500 fine. In Minnesota, the maximum sentence for "carnal knowledge" of a girl aged 14 to 18 is seven years--compared with 20 years for the same crime with "any animal or bird."

A Michigan man faces ten years for possessing burglary tools, but only five for using them. In North Carolina, a housebreaker who slips through a partly opened door can get ten years; a burglar who personally opens the same door another inch faces death. Even federal income tax raps seem out of whack: the maximum for falsifying a return is five years compared with one year for not filing at all.

Discretion Y. Discrimination. Such rigid illogic is often as unfair to the public as it is to the felon. In New York, the iron rule that a four-time felon gets life imprisonment often moves prosecutors to reduce the fourth charge to a misdemeanor, thus making sure the man does not stay in prison. Rhode Island judges, faced with handing out a minimum five-year sentence for robbery, commonly reduce the charge to larceny.

Worse, different judges (and juries in eleven states) give wildly different sentences for the same crime. Few would dispute the need for a judge to have the freedom to exercise discretion: modern penology aims to fit the punishment to the man in addition to the crime. Yet in one North Carolina federal court, forgers receive average sentences of 16 months; in another, they average 31 months. In 1962, the average federal sentence for auto theft ranged from 13.8 months in New York to 48 months in Maine. Many judges candidly admit to bias about particular crimes. "Me, I hate narcotics," says one Boston judge. "Someone else may hate rape." Accordingly, many lawyers "jockey" for the man who is known to be softest on their client's particular crime--a practice that mires U.S. courts in the endless delaying tactics of lawyers, who sometimes go as far as bribery of court clerks to steer cases before the "right" judge.

But the effort is understandable. American appellate courts generally cannot or will not modify a trial judge's sentence, however harsh or inadequate, unless it exceeds statutory maximums. Ironically, notes Virginia Law Professor Peter Low, "70% to 90% of criminal cases involve guilty pleas in which the defendant's only interest is the sentence, and yet we protect him everywhere except where he cares."

As one result, appellate courts sometimes covertly soften harsh sentences by searching out some ground on which they can reverse the conviction--thus causing the legal strains that Justice Holmes alluded to when he said, "Hard cases make bad law." More rationally, however, some states are reacting by providing review of sentences. In Connecticut and Massachusetts, for example, a special three-judge panel of the state superior court is empowered to review felony sentences--to increase as well as decrease them.

Reform & Redemption. Sentencing reform is so urgent that it may be almost inevitable. Indeed, penal codes have recently been revised in at least eleven states. Paradoxically, the key need is more flexibility--the freeing of judges from the requirement of adhering to scores of specific sentences on the books. In its Model Penal Code, the American Law Institute streamlines all serious crimes into three degrees of felony that carry fixed maximum sentences of five years, ten years and life. The judge controls the minimum sentences --up to two, three and ten years.

Conversely, another need is earlier eligibility for parole, the point when the prisoner gets to the end of his minimum sentence. Today, a vindictive judge can hit a prisoner convicted of more than one offense with consecutive sentences that run so long they prevent parole eligibility--and all hope of rehabilitation. In California, judges are empowered only to set indeterminate sentences for most crimes. The exact length is set later by the California Adult Authority, which is supposedly better equipped to take a second look at the prisoner's behavior and possible redemption. By contrast, a new law in New York will soon compromise by retaining judicial power to set sentences--while requiring minimum sentences to run only concurrently.

The assumption underlying all such reform is that rehabilitation experts, such as parole boards, really can act wisely for both prisoners and society. It is an idea that may have its flaws. But, in light of the current sentencing mess, most penologists believe it is worth trying.

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