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from the June 01, 1981 edition

Seeking nationwide sentence to fit crime: states move toward more uniform system of justice

Boston—

A 26-year-old unemployed short-order cook was sentenced to 8-to-10 years in prison for armed robbery in Massachusetts. The same day, 1,600 miles to the west in a Wyoming courtroom, a 31-year-old odd-jobs man was handed a 3-to-5 year prison term for a similar offense.

Such disparities in punishment are common, not only between states, but often within the same state.

While prospects for a single national sentencing system are less than slim, there has been considerable movement in some states toward more uniform courtroom justice.

The problem of prison overcrowding, which has hit most states, has necessitated, in some instances, not only the construction of new facilities but even the early release of some convicts and has tended, in the opinion of some observers on the corrections scene, to slow action on toughened sentence measures.

Overcrowding was behind the riots in the mammoth Southern Michigan Prison at Jackson and a smaller state prison at Marquette in late May. Nearly 6,500 inmates were involved. Considerable property damage was done by the fires set during the melee inside the Jackson facility, the world's largest walled prison.

Nearly two dozen states now provide for some kind of fixed, or largely discretion-free, penalty for some, if not all, types of crime. And several others are considering similar steps.

In Massachusetts, lawmakers are weighing two quite different proposals for so-called determinate sentencing. One proposal calls for set mandatory prison terms for those convicted of crimes against the elderly. The second, and substantially more sweeping, proposal would put in place less stringent but equally certain punishments.

The latter arrangement, known generally as presumptive sentencing, involves a specific prison term for each offense. But the judge, within certainprescribed bounds, can impose a stiffer or lesser penalty after taking into consideration any circumstances involving the crime or the offender.

In such instances, the reason for the higher or lower sentence must be in writing.

Under the Bay State proposal, for example, the presumptive sentence for second-degree parole eligibility. But a judge could extend the term to a maximum of 22 years or reduce it to below 10 years.

Although the sets of penalties and the range of flexibility vary, at least 13 states -- Alaska, Arizona, California, Colorado, illinois, Indiana, Maine, Minnesota, Missouri, New Jersey, New Mexico, North Carolina, and Tennesee -- now have some form of presumptive sentencing. And all of them have made the switch in the past five years.

Several, like California and Maine, prescribe a specific term for each offense rather than a range of, say 4-to-6 years for a particular offense. But the judge can impose a harsher or lighter sentence only when he finds that "aggravating" or "mitigating" circumstances justify such action.

The shift to established minimum sentences has been accompanied by a phasing out of parole systems that allow discretionary early release of prisoners. At least 10 -- Alaska, California, Colorado, Connecticut, Illinois, Indiana, Maine, Minnesota, New Mexico, and North Carolina -- have moved in this direction, according to David Rappaport of the Maryland-based American Correctional Association.

Another 14 have, mostly in recent years, set up parole guidelines that must be either observed or at least considered, thus having an impact on the length of sentences served by convicts. These states are Florida, Georgia, Hawaii, Louisiana, Maryland, Michigan, New York, Ohio, Oregon, Rhode Island, South Carolina, Washington, West Virginia, and Wisconsin.

Maine lawmakers are considering legislation to reinstate the parole system, a measure backed by Gov. Joseph Brennan. Maine was the first state in the nation to eliminate parole possibility for newly convicted felons back in 1946.

Besides Massachusetts, presumptive sentencing has been proposed in New York, Pennsylvania, Washington, and Wisconsin this year.

Backers of the presumptive sentence approach frequently herald it as a "reasonable middle ground" between the present irregular system of punishing offenders, under which judges have wide latitude, and fixed mandatory sentences.

Nearly half the states, including some that have several forms of other determinate sentences for some offenses, mandate set penalties for certain felonies, according to Brad Smith of ABT Associates, the Cambridge, Mass-Based research firm that recently completed a study of the nation's corrections systems.

Sixteen states -- Arizona, Arkansas, California, Illinois, Iowa, Kansas, Louisiana, Massachusetts, Montana, Nevada, New Mexico, New York, North Carolina, Ohio, Oregon, and Tennessee -- have mandatory sentence laws on their books for some, or all, violent crimes. Several others prescribe fixed prison terms for drug pushing or repeat offenders.

Similar legislation is pending in several other states from New England to the Pacific.

And almost all of the 49 state legislatures that have been meeting this year have, or least had, on their dockets measures to toughen punishment for certain crimes, especially those involving repeat offenders.

In West Virginia, for example, a newly enacted statute raised from three years to five the minimum sentence for commission of, or attempt to commit, a crime while in possession of a firearm.

While it is too early in the 1981 state lawmaking year to gauge how many such proposals will similarly gain passage, observers note that in 1979, 18 states adopted tougher penalties for some crimes and last year at least a half dozen others did likewise.

And as a January Gallup poll seemed to suggest, the direction of public sentiment has not changed. That sampling found 51 percent favoring increasing by 5 to 10 years sentences for crimes committed while carrying a gun. At the same time, nearly 6 out of 10 questioned voiced little confidence in the courts.

Despite pressures for stiffer sentences and the almost certain need for the additional prisons this will require, legislators in many states are moving cautiously, outwardly voicing support for what might be politically popular but quietly marking time, observers William G. Nagel, president of the Lake Wales, Fla.-based American Foundation and executive director of the latter's Institute on Corrections.

Fiscal limitations in several states are forcing officials not only to hold off in approving longer prison terms but to delay implementation of measures already on the books.

Critics of stiffer sentences, like Michael Kroll of the National Moratorium on Prison Construction, contend that in some states the new laws have in some instances "resulted in filling correctional institutions with less serious offenders."

Boosters of longer and less flexible sentencing, like Massachusetts Gov. Edward J. King (D), hold that if additional prisons are needed to house an expanded inmate population, the necessary funds must be provided.

Governor King says he is convinced Massachusetts citizens would be willing to pay higher taxes were that necessary to build such facilities.

The National Law Journal, in a recently published study of sentencing across the nation, found that those convicted of felonies spent an average of 53 months behind bars -- the longest anywhere. South Dakota prisoners, on the other hand, averaged but 13 months in jail for their crimes.

Further underscoring the sharp differences not only in sentencing, but also in actual time served in prison for an offense, the paper reported that the average time served in Arkansas for forcible rape was 119 months, in contrast with a low of 14 months in Alaska and Nevada.

Convicted second-degree murderers in Massachusetts average 180 months locked up, while those convicted of the same crime in South Dakota are held captive but one-sixth that time.