A fairer sentence?

The Massachusetts Legislature will soon be considering the report of the special sentencing commission for revision of criminal sentences. The most crucial issue the commission addresses is the status and future of mandatory sentencing.

At present, people found guilty of murder, illegal drug sales, gun possession and some drunken driving offenses must serve a mandatory minimum period of incarceration. These laws are in response to perceived public opinion that serious crime requires serious punishment. There is demand from some quarters that mandatory sentences be provided for rape, armed robbery and some other crimes of violence.

Mandatory sentences are inappropriate in some cases. Even though two defendants have committed the same type of crime, the fact is that every case and every defendant are different. The 18-year-old first-offender is radically different from the 30-year-old seasoned criminal.

Many judges are upset by the rigidity of mandatory sentences for drug sales. The majority of serious criminal cases concern illegal drugs, and our jails are filled with little fish who are serving severe sentences, while many of the big fish have escaped the net.

How to reconcile the necessity to treat serious crimes with serious punishment and the need in justice to treat criminals individually? The answer lies in presumptive sentencing. The Legislature sets the punishments, often called ``guidelines'' or ``target sentences.'' The sentencing judge must conform to the guidelines. The judge who sentences below or above the guideline must state written reasons for the decision. The Legislature may describe aggravating and mitigating circumstances which the judge must evaluate in his written findings. If either side is aggrieved, appeal may be made to a panel of three other judges, who may affirm the sentence or revise it.

The discretion of the sentencing judge to weigh all of the facts of each case is preserved, but the public's legitimate interests are protected by the restraints of the guidelines. Today, public frustration at some sentences that appear lenient is due in part to the finality of the sentencing decisions and the awareness that nothing remedial can be done. Under a presumptive sentencing system there is time and opportunity, pending review, for comment and argument by prosecutor, victim or the news media.

A strong case can be made that the three reviewing judges should be trial judges, rather than judges of the Appeals Court. Trial judges are concerned every day with the discretionary function of sentencing; appellate judges may not have that background. Probably the review function will not add greatly to the work of the already overburdened trial court. The likelihood is that sentencing judges will ordinarily conform to the guidelines, and there can be no appeal. This will especially hold true if the guidelines are skillfully drawn with the commission's assistance. The commission's advice can be drawn from a study of hundreds of sentences imposed by judges in the past.

It is clear that true sentencing reform will require truth in sentencing. Penalities of six or eight years should no longer convert to time served of four years or six years or some other figure. Sentences should say what they mean -- and mean what they say. This will require drastic revision of the parole system, although good sense indicates that some modest credit should be awarded for a prisoner's good behavior.

Mandatory sentences required under federal rules have brought vehement opposition from many federal judges. The same is true of the laws and judges of several states. A few retired Massachusetts state judges have said frankly that, rather than impose greatly disproportionate mandatory sentences in some cases, they deliberately ignored some of the evidence of guilt in order to take the case out from under the reach of the mandatory statute. This of course is not tolerable; it is evasion of the law.

Some elected officials frequently call for new and more severe mandatory sentences. There may be little momentum to undo the mandatory sentences for murder, drunken driving or gun possession, but there is certainly good ground for revising the law as to illegal drugs. There is even greater reason to oppose the creation of new mandatory sentences, despite their political attractiveness as quick-fixes for serious crime.

A system of presumptive sentencing will provide some assurance against injustice in sentencing, by preserving the discretion of the sentencing judge. At the same time, it will protect the public interest that serious crimes should receive serious punishment, by providing reasonable restraints upon the judge's discretion. The judge who departs from the statutory guidelines must justify his decision by persuasive written reasons.

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