WATCHING THE BENCH: Justice by Numbers
Forer, Lois G.
WATCHING THE BENCH: Justice by Numbers Mandatory sentencing drove me from the bench by Lois G. Forer A judge can deviate from the prescribed sentence if he or she writes an opinion...
...But any day he may be stopped for a routine traffic violation...
...a criminal sentenced to probation has effectively “gotten off...
...Yet incarceration has not reduced the crime rate or made our streets and communities safer...
...has increased 10 percent in the last five years...
...Prosecutors are more likely to demand imposition of the mandatory laws for blacks than for whites...
...As for Michael, his problems and those of his family were very real to me...
...And by any measurable standard he had been rehabilitated...
...A young, eager, newly appointed federal judge, Marvin Frankel, had an idea...
...She had four young children to support who would have become wards of the welfare department and probably would have spent their childhoods in a series of foster homes...
...Every day I’d come into my office, look at my calendar, and notice that, say, 30 days had passed since Elliott was let out...
...relying on mandatory sentencing is a far better way to guarantee a leisurely, controversy-free career on the bench...
...He was released after eight years and promptly raped another woman...
...At the time of Michael’s sentencing, both the city of Philadelphia and the commonwealth of Pennsylvania were, like many cities and states, in such poor fiscal shape that they did not have money for schools and health care, let alone new prisons, and the ones they did have were ovefflowing...
...Guidelines make sense, for that very reason...
...Many crimes are committed in prison, including murder, rape, robbery, and drug dealing...
...Many were functionally illiterate...
...Given the choice between defying a court order or my conscience, I decided to leave the bench where I had sat for 16 years...
...The most important question I asked myself was whether the offender could be deterred from committing other crimes...
...The judge merely needed to add up the points to calculate the length of imprisonment...
...If you force a first-time white-collar criminal to pay heavily for his crimes -perhaps three times the value of the money or property taken-he’ll get the message that crime does not pay...
...Most important, however, as mandatory sentencing packs our prisons and busts our budgets, it Sentenced to death In the past two decades, all 50 state legislatures have enacted mandatory sentencing laws, sentencing guideline statutes, or both...
...Has Elliott made his payment...
...But I had my own criteria or guidelines-very different from those established by most states and the federal government-for deciding on a punishment...
...This was not done on either the state or federal level...
...They have not been “incapacitated,” another of the theoretical justifications for imprisonment...
...Before his appointment, Frankel had experienced little personal contact with the criminal justice system...
...If we Americans treated crime more practicallyas socially unacceptable behavior that should be curbed for the good of the community-we might begin to take a rational approach to the development of alternatives to prison...
...In fact, within a few years almost every jurisdiction had both sentencing guidelines and mandatory sentencing laws...
...She had not been arrested before...
...The book was widely read and lauded for two main reasons...
...We might start thinking in terms not of punishment but of public safety, deterrence, and rehabilitation...
...While some states’ sentencing laws include provisions that allow judges to ovemde the mandatory sentences in some cases, the laws are for the most part inflexible-they deny judges the freedom to discriminate between the hardened criminal and the Michael...
...The offenders are off the streets for the period of the sentence, but once released, most will soon be rearrested...
...Was his crime one of hatred, and does he show any genuine remorse...
...As for poor people, stealing is not always a sign that the individual is an unreasonable risk to the community...
...But the mandatory codes don’t make great distinctions between him and another murderer who came before me, a woman who shot and killed a boy after he and his friends brutally gang-raped her teenage daughter...
...He had been effectively deterred from committing future crimes...
...I got him on the second wife’s child and sentenced him to the maximum...
...My primary concern was public safety...
...The usual grounds for imprisonment are retribution, deterrence, and rehabilitation...
...or that the offender, like Michael, is emotionally distraught...
...She has not been arrested since...
...Approximately three fourths of these defendants were nonwhite...
...And then there are the other cases that keep me up nights: those of men and women I might have let out, but didn’t...
...And there’s a reason for that impression: Unless the probationer is required by the sentencing judge to perform specific tasks, probation is a charade...
...So I set firm conditions...
...WATCHING THE BENCH: Justice by Numbers Mandatory sentencing drove me from the bench by Lois G. Forer A judge can deviate from the prescribed sentence if he or she writes an opinion explaining the reasons for the deviation...
...Of course, the vast majority of men, women, and children in custody in the United States are not killers, rapists, or arsonists...
...So I decided to deviate from the guidelines, sentencing Michael to 1 1-and-a-half months in the county jail and permitting him to work outside the prison during the day to support his family...
...I gave him the maximum sentence under the law-20 years-but with good behavior, he got out fairly quickly...
...The mandatory sentencing laws and guidelines that exist today in every state were designed to smooth out the inequities in the American judiciary, and were couched in terms of fairness to criminals-they would . stop the racist judge from sentencing black robbers to be hanged, or the crusading judge from imprisoning pot smokers for life...
...But there was a payoff both the probation officers and 1 could see: As offenders worked and learned and made restitution, their attitudes often changed dramatically Time and punishment My rules of sentencing don’t make judgeship easier...
...Some may act largely out of cowardice and peer pressure...
...Thus in my sentencing, I sent him to school and ordered the probation officer to see that he went...
...Once a young man came before me because he had taken aim at a person half a block away and then shot him in the back, killing him...
...But when it comes to determining the fate of a human being, there must be room for judgment...
...He should never get out...
...Clearly, few rapists can safely be left in the community, and in my tenure, I incarcerated every one...
...He confirmed my findings...
...that the offender is mentally retarded...
...If a judge doesn’t have a good reason for deviating-if he’s a reactionary or a fool-his sentencing decision will be overturned...
...My rationale for the lesser penalty, outlined in my lengthy opinion, was that this was a first offense, no one was harmed, Michael acted under the pressures of unemployment and need, and he seemed truly contrite...
...I believe there is...
...he may apply for a job or a license...
...The city was under a federal order to reduce the prison population...
...Richard H. Girgenti, the criminal justice director of New York state, has long proposed that the legislature give judges more discretion to impose shorter sentences for nonviolent and noncoercive felonies...
...Yet under mandatory sentencing laws, the complexities of each crime and criminal are ignored...
...I felt I knew him...
...There was no social or criminological justification for sending him back to prison...
...Fourth, is this a person who knows he is doing wrong but cannot control himself...
...The mitigating circumstances that influence most judges are not included in the limited list of factors on which “presumptive” sentence is based-that an offender is a caretaker of small children...
...The probationer meets with the probation officer, briefly, perhaps once a month-making the procedure a waste of time for both...
...But my rules are, I believe, both effective and transferable: an application of common sense that any reasonable person could follow to similar ends...
...Since then, Congress has enacted some 60 mandatory sentencing laws on the federal level...
...In Pennsylvania, members of the legislature admonished judges not to oppose the guidelines because the alternative would be even worse: mandatory sentences...
...Nevertheless, the prosecutor appealed...
...One child abuser who appeared before me had already been convicted of abusing his first wife’s child...
...Meanwhile, the laws have effectively neutralized judges who prefer sentencing the nonviolent to alternative programs or attempt to keep mothers with young children out of jail...
...Michael returned to his family, obtained steady employment, and repaid the victims of his crime...
...Have the laws made justice fairer-the central objective of the law...
...I had favorable reports about him from the prison and his parole officer...
...While this sounds reasonable in theory, “downwardly departing” from the guidelines is extremely difficult...
...Today there are over 600,000-more than in any other nation-the bill for which comes to $20.3 billion a year...
...Of course, I could have been wrong...
...As Wilson says, judges are not infallible-and most of them know that...
...A sentence of close to a year seemed adequate to convince Michael of the seriousness of his crime...
...To make that room, we must stop acting as if mathematic calculations are superior to human thought...
...If a robber simply displays a gun but does not fie it or harm the victim, then one should consider his life history, provocation, and other circumstances in deciding whether probation is appropriate...
...Of course, to most of us, the idea of a nonprison sentence is tantamount to exoneration...
...Offenders simply could not return to their old, feckless lifestyles without paying some financial penalty for their wrongdoing...
...Most rapes are acts of hostility, and the vast majority of rapists have a record of numerous sexual assaults...
...The offender was also given a number of points depending upon his or her prior record, use of a weapon, and a few other variables...
...But they have heard the evidence, seen the offender, and been furnished with presentence reports and psychiatric evaluations...
...I checked Michael’s record...
...He had not been rearrested...
...I did not see any Ivan Boeskys or Leona Helmsleys, and although there was a powerful mafia in Philadelphia, I did not see any dons, either...
...Second, was there wanton cruelty...
...This is one case in which justice is not tough enough...
...That didn’t help Michael, of course...
...He immediately raped another elderly woman...
...Penalties like fines, work, and payment of restitution protect the public better and more cheaply than imprisonment in many cases...
...If the answer was no, I’d hold a violation hearing with the threat of incarceration if the conditions were not met within 30 days...
...During my tenure on the bench, I treated imprisonment as the penalty of last resort, not the penalty of choice...
...If a robber maims or slashes the victim, there is little likelihood that he can safely be left in the community...
...I do...
...How did we get into this no-win situation...
...In 1970, after the turmoil of the sixties, legislators were bombarded with pleas for “law and order...
...I thought no more about Michael until 1986, when the state supreme court upheld the appeal and ordered me to resentence him to a minimum of five years in the state penitentiary...
...However, if the arsonist sets fires just because he likes to see them, it is highly unlikely that he can be stopped from setting others, no matter how high the fine...
...But they have had an ugly and unintended result-an increase in the number of American prisoners and an increase in the length of the sentences they serve...
...I placed her on probation-a decision few judges now have the discretion to impose...
...Yet his slim book, Fair and Certain Punishment, offered a system of guidelines to determine the length of various sentences...
...Why did he do it...
...The plan sounded so fair and politically promising that many states rushed to implement it in the seventies...
...It’s often a sign that they want something-a car, Air Jordans-that they are too poor to buy themselves...
...Many of them, if they are not violent, can also be made to make some restitution and learn that crime doesn’t pay...
...I wanted to get me a body...
...Imprisonment is advisable even though it may be a first offense...
...And my examination of 16 years’ worth of cases suggests my inclination was well founded...
...If we made simple reforms like these, thousands of nonthreatening, nonhabitual offenders would be allowed to recompense their victims and society in a far less expensive and far more productive way...
...I say no, and a recent report by the Federal Sentencing Commission concurs...
...When I made the decision not to send a criminal to prison, I wanted to make sure that the probation system I sent them into had teeth...
...No one can predict with certainty who will or will not commit a crime, but there are indicators most sensible people recognize as danger signals...
...All offenders were ordered to pay restitution or reparations within their means or earning capacity to their victims...
...As a judge I had sworn to uphold the law, and I could find no legal grounds for violating an order of the supreme court...
...The offenders who appeared before me were mostly poor people, poor enough to qualify for representation by a public defender...
...As for unfairnesses in sentencing-for instance, the fact that the robber with his finger in his jacket gets the same sentence as the guy with a semiautomaticthese could have been rectified by giving appellate courts jurisdiction to review sentences, as is Sentence structure Is there another way to sentence criminals without the law in Canada...
...Michael had paid his retribution by a short term of imprisonment and by making restidoesn’t prevent crime very effectively...
...Sometimes it was as little as $5 a week...
...Thus what influential criminologist James Q. Wilson had argued during the height of the battle had become the law of the land: The legal system should “most definitely stop pretending that the judges know any better than the rest of us how to provide ‘individualized justice.’ ” Hardening time I’m not sure I knew better than the rest of you, but I knew a few things about Michael and the correctional system I would be throwing him into...
...If an arsonist sets a fire to collect insurance, that is a crime but also a rational act...
...he may even be the victim of a crime-and if so, the ubiquitous computer will be alerted and he will be returned to prison to serve the balance of his sentence, plus additional time for being a fugitive...
...Yet gang rape, although a brutal and horrifying crime, is more complicated...
...Almost 80 percent were high school dropouts...
...This common-sense proposal has not been acted on in New York or any other state with mandatory sentencing laws...
...Not all of these offenders were sentenced to probation, obviously...
...The officer duly records the meeting and the two go their separate ways until the probationer is arrested for another offense...
...Moreover, Michael, like many offenders who appeared before me, had written to me several times...
...And those of people like Michael, for whom justice shouldn’t have been a mathematical equation...
...Each crime was given a certain number of points...
...While a recent Justice Department study found that two thirds of all prisoners are arrested for other offenses within three years of release, more than two thirds of the 1,000plus offenders I sentenced to probation conditioned upon payment of reparations to victims successfully completed their sentences and were not rearrested...
...Faced with this prospect, he disappeared...
...I had seen Michael and his wife and daughter...
...Few probation officers protested my demands...
...The number of known crimes committed in the U.S...
...I was faced with a legal and moral dilemma...
...By contrast, some people who have committed homicide present very little danger of further violencealthough many more do...
...That, by the way, is a cold, hard statistic-rather like Michael will be when they find him...
...Yet five years’ imprisonment was grossly disproportionate to the offense...
...All offenders similarly situated would be treated the same...
...Such a person can be deterred by being made to pay for the harm done and the costs to the fire department...
...I found this woman guilty of first-degree murder, but I found no reason to incarcerate her...
...For certain kinds of criminals, alternative sentencing is the most effective type of punishment...
...Like most legislative reforms, it started with good intentions...
...I ordered school dropouts to get their high school equivalency certificates and fiid jobs...
...The leader is clearly hostile and should be punished severely...
...I sentenced him to 10 to 20 years in prison-the maximum the law allowed-for forcible rape...
...Of course, probation that required education and work and payment plans meant real work for criminals, too...
...He had never committed a violent act and posed no danger to the public...
...Monitoring probation wasn’t easy for me, or the probation officers with whom I worked...
...Third, is this a hostile person...
...Intelligent guidelines would keep some judges from returning repeat offenders to the streets and others from putting the occasional cocaine user away for 10 years...
...Why not permit judges more freedom in making their decisions, provided that they give legitimate reasons...
...It found that, even under mandatory sentencing laws, black males served 83.4 months to white males’ 53.7 months for the same offenses...
...I had heard him express remorse...
...The result: In 1975 there were 263,291 inmates in federal and state prisons...
...You may be wondering, after all this, if I have a Willie Horton in my closet-a criminal whose actions after release privately haunt me...
...It is not a happy prospect for him and his family-nor for America, which is saddled with a punishment system that operates like a computer-crime in, points tallied, sentence out-utterly disregarding the differences among the human beings involved...
...A potential offender would know in advance the penalty he would face and thus be deterred...
...They’re in prison for some type of theft-a purse snatching, burglary, or embezzlement...
...So I’d call the probation office...
...untried persons accused of dangerous crimes were being released, as were offenders who had not completed their sentences...
...Mind you, sentencing guidelines are not inherently evil...
...A bench warrant was issued, but given the hundreds of fugitives-including dangerous ones-loose in Philadelphia, I doubt that anyone is seriously looking for him...
...And second, it got tough on the “bleeding heart” judges...
...More likely, they have simply been hardened...
...And so on...
...Yet the followers can’t be so neatly categorized...
...Almost a third had some history of mental problems, were retarded, or had been in special schools...
...One dreary day my court reporter said plaintively, “Judge, why can’t we get a better class of criminal...
...If the offender was functionally illiterate, he was unemployable and would probably steal or engage in some other illegal activity once released...
...Of course, a large proportion of street crimes are not premeditated, but that fact was ignored...
...First, it got tough on criminals and made justice “certain...
...We must abolish mandatory sentencing laws and change the criteria on which sentencing guidelines are based...
...their jobs were more meaningful and satisfying, they said...
...And why not revise the guidelines to consider dangerousness rather than the nomenclature of the offense...
...he was resentenced by another judge to serve the balance of the five years: four years and 15 days...
...What prevents Americans from adopting practical measures like these is an atavistic belief in the sanctity of punishment...
...Many of these criminals can be punished without incarceration...
...I also imposed a sentence of two years’ probation following his imprisonment conditioned upon repayment of the $50...
...Even persons who have never heard of Emmanuel Kant or the categorical imperative to punish believe that violation of law must be followed by the infliction of pain...
...Unlike appellate judges who never see the individuals whose lives and property they dispose of, a trial judge sees living men and women...
...I use the masculine pronoun deliberately for I have never seen an illiterate female offender under the age of 60...
...tution to the victims...
...I am not a statistician, so I had my records analyzed and verified by Elmer Weitekamp, then a doctoral candidate in criminology at the Wharton School of the University of Pennsylvania...
...They are in a better position to evaluate the individual and devise an appropriate sentence than anyone else in the criminal justice system...
...And seldom do we ask what was once a legitimate question in criminal justice: What are the benefits of incarceration...
...Yet those guidelines must allow more latitude for the judge and the person who comes before him...
...Is he going to his GED class...
...Still, he’ll get out with good behavior, and I shudder to think about the children around him when he does...
...Current laws are predicated on the belief that there must be punishment for every offense in terms of prison time rather than alternative sentences...
...I remember one man who raped his mother...
...I could foresee what would happen but was powerless to impose a longer sentence...
...endangering the public...
...First, was this an irrational crime...
...Typical of such offenders are pedophiles...
...After I returned a few people to jail for noncompliance, both my offenders and their probation officers knew I meant business...
...By this time Michael had successfully completed his term of imprisonment and probation, including payment of restitution...
Vol. 24 • April 1992 • No. 4
