Judging the law; Sentencing is no game

By , Hiller B. Zobel is an associate justice of the Massachusetts Superior Court.

''This job,'' a judge of my court once said, ''is just like umpiring. You call the balls and strikes - the objections to the evidence - but you don't determine the outcome. In fact, when I'm presiding over a case where the issue is money, I frequently get the feeling that the whole thing is one big game, with the parties and the lawyers just playing for stakes.''

''Of course,'' he added, ''that doesn't apply to sentencing.''

Indeed it doesn't. Any criminal trial embodies an effort to bandage a social wound or (to switch the metaphor) to repair a moral breakdown. The antagonists are not mere private individuals, nor even massive corporations. From the very title of the case, you can detect an infinitely higher level of combat: Commonwealth v. Jones. In a criminal trial, it's Everyone against the Defendant.

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The parties in a criminal case are not playing for matchsticks, chips, or coupons. When Everyone wins, the other side stands to lose, not merely a pile of dollars, but a stretch of years.

That brings Everyone, the Defendant, and the judge to the matter of sentencing. The jury has decided the outcome, the judge, no longer an umpire, has to determine the score.

Sentencing is unlike any other kind of decision a judge renders. Although trying to decide how a human being will spend the immediate or long-term future is intrinsically difficult, it is not the extraordinary breadth of discretion which makes the job so hard.

In every other decisional situation, a judge should - indeed, must - insulate the process from anything that does not come directly from the case itself. ''The law no passion can disturb,'' said John Adams in the Boston Massacre Trials, '' 'Tis void of desire and fear, lust and anger. . . . 'Tis deaf, inexorable, inflexible. . . . It is deaf, deaf as an adder to the clamours of the populace.''

To a certain degree, that philosophy is admirable, perhaps even mandatory. Anything else is lynch law.

Sentencing, however, does not achieve a result as easily definable as a jury verdict. A judge deciding punishment must consider a whole range of factors, none of which lends itself to quantitative or perhaps even qualitative analysis.

First of all, a sentence should punish the offender. It should make him aware that he has committed an act which is, to a greater or lesser degree, intolerable. Still, the severity of the offense suggests some range of appropriate punishment, particularly viewed in the light of the defendant's previous criminal record. In short, the punishment must to a reasonable degree fit both the crime and the criminal.

Notice how easy it is to slip into vagueness. What is a ''reasonable degree''? And to whom should it appear ''reasonable'': the defendant? the judge? the victim? the district attorney? the newspaper reporter covering the proceedings from the press row? the general public (whatever that is)? Already Adams's deaf adder is beginning to develop ears.

If punishment and its corollary, discouraging a repeat performance, were the only elements, the judge could probably pretty much concentrate exclusively on the defendant.

Sensitivity to out-of-court reactions becomes necessary and acute when the judge deals with two additional sentencing factors: deterrence of other offenders, and community attitudes toward the particular offense.

Thus a judge must try to make the sentence heavy enough to carry a message to anyone else contemplating similar activity. He must get across to everyone that certain antisocial behavior will entail certain consequences. In doing that, he must consider very carefully what the public as a whole thinks about the behavior in question.

Judges do this every day; and yet it is an impossible calculus. While seeking a fair sentence for the unique individual before him, the judge must in a real sense put himself into the public's place (or, more accurately, bring the public onto the bench next to him). He must discern the community's reaction and then simultaneously express and moderate it. He necessarily rests his decision, at least in part, on something other than what happens in the courtroom.

My colleague was right: sentencing is not a game.

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