Fair sentencing: a hopeful 'seed in the wind'

By , Barbara Fink is a free-lance writer based in Boston.

A major barrier to improving America's sentencing structure has been the schism between those who believe that the goal of the prison system is to punish wrongdoing, and those who argue that the human and financial costs of imprisonment are so great that prison terms are warranted only to protect society from violent crime.

The debate is often acrimonious. Those in the second camp tend to portray their opponents as vengeful, shortsighted, and lacking in compassion. Those calling for punishment feel betrayed by a system they say ignores the needs and sufferings of those whose lives have been devastated by crime. When they see criminals freed with little more than a ''slap on the wrist,'' their sense of justice is outraged.

Nearly all those involved in the policy debate would agree that reforms are desperately needed, but the debate itself appears to have reached an impasse, with little common ground being found upon which to forge a more reasoned, effective, and equitable sentencing code.

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But it sometimes happens that the most frustrating logjams are broken up when a more inclusive concept emerges; one which catches the public policy pendulum in midswing, and leapfrogs over opposing views to create a wider arena, in which questions can be examined anew.

And this is just what may be happening in the sentencing debate.

A new scheme, still in the form of a preliminary concept paper, has been developed by the Michigan Department of Corrections. The plan was developed for Michigan's justice system, but its principles should be of interest to those in other jurisdictions as well.

''Standard Punishment Sentencing,'' as it is known, would require massive changes in the system before it could be implemented. It builds upon concepts proven effective in the US and Scandinavia, but it does have some radical aspects.

But the Michigan Department of Corrections is hardly pounding its fist upon the tabletop of ideas, shouting ''do it my way.'' The plan's authors believe its value lies less in whether or not it proves practical than in its ability to refocus and expand the sentencing debate. If it succeeds in doing that, they say , its purpose will have been served, ''and it will be up to the Legislature and others who make policy as to where, if anywhere, it goes from there.''

The plan offers assurance that convicted criminals will be punished, and that sanctions imposed will be appropriately severe. It protects the public by providing for incarceration of dangerous and persistent offenders, while avoiding imprisonment in other cases. And, by providing a new measuring system for evaluating the severity of a sanction, it offers some hope that sentencing disparity - whereby criminals convicted of identical crimes often receive wildly varying sentences - could be reduced.

It does all this (at least on paper) by considering the amount of punishment a crime merits separately from the form the punishment takes. More specifically, it represents a move away from viewing a prison sentence as the only sanction severe enough to constitute punishment.

In speaking of punishment, the Michigan officials are not calling for vengeance. They don't endorse the type of punishment which leaves people emotionally scarred, less able to deal with life, embittered, alienated, and more violence-prone - as prison often does.

They are speaking, rather, of proven programs which provide public works, of stiff fines scaled to income, and of work release combined with part-time jail. And they've devised an ingenious method for measuring the severity of such sentences against a prison term.

The common denominator is time - something of value which, unlike material wealth, all possess in roughly equal measure, and which cannot be stored up or replaced. A crime meriting six months' punishment might call for six months in prison, for a fine totaling six months' income (whereby a wealthy person's fine would weigh as heavily as the much smaller fine imposed on his poorer neighbor), or for a work assignment lasting six months.

The critical and sensitive task of determining which offenders are dangerous could be aided by actuarial risk prediction techniques, currently used in classifying offenders within Michigan's prisons. Such techniques are themselves controversial, but they have weathered expert scrutiny and court battles.

Implementing standard punishment sentencing would call for revision of the penal code, and would pose other, equally daunting, challenges. The plan will undoubtedly draw fire from some members of the criminal justice community, because it departs so sharply from long-established practice.

It might offend some liberals, in speaking directly and without apology about punishment. And it may fail to satisfy some conservatives, who are unwilling to see offenders receive anything other than a harsh prison term.

Its authors stress that further study will be needed to reveal whether the plan could really bring about ''a system which is not only more just, but which also contributes better to the protection of the public from crime.''

Today, the concept is little more than a seed in the wind. But it is the kind of seed which, if it finds receptive soil, might take root and evolve, in the months and years to come, into a sentencing structure which embodies a higher sense of justice than we know today. A sentencing code which is at once stern, fair, compassionate, and reasoned.

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