The best hope for preserving judicial discretion

A number of Massachusetts judges have come under public criticism in recent months. Almost invariably the complaint is that the judge has been soft in sentencing an offender for a crime of violence. Prosecutors, victims, public-interest groups and the media have joined in the protests. The outcry to some extent reflects a sense of public frustration that the sentence in most instances is in the judge's sole discretion, with no right of appeal by the prosecutor.

The Legislature and the governor have responded by establishing mandatory sentences for certain crimes. If the defendant is convicted of such a crime, the judge must impose at least the minimum prescribed sentence of incarceration. A new statute provides that for a crime of violence against the person where the law permits incarceration, the judge must make his reasons public if he does not order incarceration of the defendant.

Laws providing mandatory sentences for some crimes have been a predictable political reaction in this time of increasing public outrage and fear of violent crime. The same can be said of the one-sided statute that says a judge must give reasons only in a case where the offender is not sent to prison. Mandatory sentences fly in the face of the basic and sensible principle that the sentence is imposed against the criminal and not the crime, and that every offender and case is different. Some offenders are reasonably good risks for probation, an option which is precluded by the mandatory sentence.

The proliferation of mandatory sentences and the public outcry for more and longer incarcerations ignore the condition of overcrowded prisons.

The hope is that by providing appellate review of sentences at the request of either the prosecutor or the defendant, it will forestall further unnecessary legislative instrusions into judicial discretion in sentencing. That discretion is essential to justice. The privilege of appeal should also help to eliminate some of the heat from the public discussion of some cases.

Not that the judiciary should be immune from public scrutiny. Like any branch of government, the courts work most efficiently in the light. But the prosecutor and the victim can address their arguments to the review panel as well as to the public.

For several years, Gov. Dukakis has unsuccessfully proposed a sentencing plan that provides the privilege of appeal to both prosecutor and defendant. This provision was part of a presumptive-sentencing proposal.

Presumptive sentencing would, within the statutory range of sentences for conviction of a specific crime, establish a presumptive range within which most sentences would ordinarily fall. Within the broader limits of the statutory extremes, a trial judge would retain discretion to sentence above or below the presumptive range.

Should a judge impose a sentence either above or below the presumptive range, he would be required to state his reasons for doing so. Thereafter, either the prosecution or defense could appeal the sentence imposed to a panel of trial judges. No such review would be available for sentencs falling within the statutorily established presumptive range.

A well-drawn presumptive-sentencing statute would result in most sentences falling within the presumptive range, and judges would still retain discretion to impose more lenient or more severe sentences than those contemplated by the presumptive range.

The governor's presumptive-sentencing proposal so far has failed. It had a number of controversial features, including the redefinition of many crimes. The proposed presumptive range of sentences for those crimes was said to be too severe. Some predicted that the plan would exacerbate prison overcrowding.

Some trial judges consider presumptive sentencing to be an erosion of judicial independence. However, presumptive sentencing, as opposed to the alternative of mandatory sentencing, can serve to buttress judicial independence.

Nor should any judge insist that he is infallible in exercising judgment in sentencing. That premise is indefensible. Presumably, all judges would agree that intermittent and bitter public controversy over some sentencing decisions has not helped to increase public confidence in the judiciary.

Presumptive sentencing, with appellate review, should almost certainly mute the public clamor. This should follow from the knowledge that the sentence is subject to review.

Some judges say that the trial court cannot accommodate even the moderate increase in the duties of trial judges caused by the use of review panels. The point is well made, and it emphasizes that extraordinary effort should be exerted to fill vacancies and keep the number of sitting judges up to statutory authorization. This is a goal which the appointive process has not reached in recent times, in part because of the creation of a considerable number of judicial positions.

A legislative provision allowing either side to claim appeal from the sentence is worth serious consideration. The defense bar should not be hasty in contending that the prosecution should have no such privilege. Defense lawyers should consider the effect that repeated public clamor about controversial cases has upon sentencing judges. If public frustration and indignation is consistently mitigated by the knowledge that the sentence is subject to review, the judge is relieved of some pressure and the chances of a measured consideration of all sentencing factors is increased.

A presumptive-sentencing plan is worth consideration. Perhaps the redefinition of crimes could be deleted from the governor's past proposal.

Presumptive sentencing offers the best hope for preserving judicial discretion in sentencing. It offers the best hope for results that consider not only evenhandedness toward defendants but also the necessity for protecting the community from violence and illegal drugs.

Edward F. Hennessey is the retired chief justice of the Massachusetts Supreme Judicial Court.