Sentences by the Book

By Richard Lacayo

The most fateful exercise of judicial discretion is the one that starts with the words "I sentence you . . ." Whether to slap the wrist or slam the cell door is a complex and partly subjective decision in which the particulars of the crime, the history of the culprit and the disposition of the judge all play a part. No wonder, then, that a stickup may draw anything from hard time to probation and defense lawyers maneuver to get their cases heard by judges known to go easy.

For years such disparities have troubled both liberals concerned about equal justice and conservatives fuming over lenient sentences. To make punishment more uniform, and more certain, Congress in 1984 authorized a commission to devise new sentencing formulas for use in federal courts, where some 40,000 criminal sentences are handed down annually. After 18 months of hearings and study, the U.S. Sentencing Commission last week issued its guidelines. Their tangle of numerical tables may rationalize court penalties, but they are expected to add thousands of inmates to already overflowing prisons.

The nine-member commission created a system in which each crime is assigned a "base" number. That figure is then adjusted, depending on such variables as the use of a gun or how much money was stolen or whether the victim was elderly. The resulting number is plugged into a chart that weighs any previous record and comes out with a prescription for the sentence. For example, a bank robber starts by getting 19 penalty points, gets 1 added for taking $15,000 and 9 more for shooting someone and causing serious injury. If the robber served a 14-month prison term five years earlier, the total of 29 points would direct the judge to set a new sentence -- whir, click -- between 97 and 121 months.

The guidelines represent a compromise between complete judicial discretion and fixed sentences, a now disfavored reform in which specific crimes get unvarying punishments without parole. Under the new federal proposal, judges would retain a small range of discretion and could depart from the guidelines in certain instances. If they did so, however, they would have to give their reason on the record, and those sentences could be appealed.

Even so, the "departure" provisions are too broad for the sole dissenting commission member, Rutgers Law Professor Paul Robinson, who charges ! that the report is riddled with loopholes. "If Congress asked for Rambo," he says, "what it got was Don Knotts." Counters Commission Member Stephen Breyer, a federal appeals judge: "Departures shouldn't occur that often." When they do, he adds, the reasons that judges give "will be analyzed, and the guidelines will be refined." The new system is scheduled to go into effect in November, but the commission, which is a permanent body, has recommended that Congress delay implementation until August 1988 in order to let judges try out the guidelines on a voluntary basis.

Any polishing that results, however, is not likely to ease the worrisome impact of the changes on federal prisons, already at 153% of capacity. The guidelines permit probation in fewer circumstances, mostly for the first-time offender who has committed a nonviolent crime. They also abolish the parole system for federal prisoners, as Congress has mandated, so that a five-year term will mean just that, minus no more than 54 days a year for good behavior. The commission estimates its tougher penalties will cause the federal prison population to grow by an extra 10% over the next decade. That could have an unimaginable effect on a federal prison like the one at Terminal Island in California, which has 1,039 inmates caged in a facility designed to hold 601. "We couldn't go through a 10% increase here," says John Vanyur, executive assistant to the warden.

The prospect of mechanically consulting their punishment tables like an abacus leaves most judges dismayed. "I know of nobody who's keen to enforce this approach," says U.S. District Court Judge Laughlin Waters of Los Angeles. "Most judges don't want sentencing guidelines, period," admits Chairman William Wilkins of South Carolina, a federal appeals judge. But, he adds, "we all recognize we need a system where there is certainty and fairness. Without guidelines that is impossible." The absence of outright enthusiasm from any quarter for the commission's approach may be inevitable. As Stanford Criminal Law Professor John Kaplan says, "I think it will prove unsatisfactory. In this area nothing is satisfactory."

With reporting by Anne Constable/Washington and Michael Riley/Los Angeles