Readjusting the scales of justice; Criminals and Victims: A Trial Judge Reflects on Crime and Punishment, by Lois G. Forer. New York: W. W. Norton & Co. $14.95.
A recent issue of The Atlantic magazine had an article about a Texas man who is serving a life sentence of stealing $230. His lawyers had tried, unsuccessfully, to convince the United States Supreme Court that this sentence violated the Eighth Amendment's protection against "cruel and unusual punishment." The purpose of the Atlantic author was to point out the complexities of judicial review involved in the court's decision.
But most readers of that article, it's probably safe to say, were left with one overwhelming impression: that something, surely, must be out of whack with a criminal-justice system that allows the imposition of a penalty so grossly disproportionate to the crime.
In the case of the Texan, the sentencing judge simply followed the dictates of a state recidivist statute specifying life imprisonment for commission of a third felony, no matter how relatively insignificant the crimes.
Was this an isolated case of questionable sentencing? Not if the facts and conclusions mustered by Lois G. Forer, herself a judge for nearly a decade in Philadelphia's Court of Common Pleas, are to be accepted.
Judge Forer's book fleshes out the widespread suspicion that something is indeed out of whack with our courts' sentencing procedures. She provides not only a carefully reasoned assessment of how and why sentences are -- or should be -- imposed, but also a full cast of characters drawn from the stream of humanity flowing through her own courtroom and others. One learns of sentences even more startlingly out or proportion than that mentioned above -- and of equally unsettling instances of vicious crime going virtually unpunished.
What emerges from "Criminals and Victims" is neither a call for stricter, more inflexible sentencing, nor a "bleeding heart" plea for better treatment of criminals. Instead, Judge Forer painstakingly plots out a course of action that may hold the promise of maximizing justice for both the perpetrator of crime and his victim.
A keystone of Judge Forer's proposals, as her title indicates, is concern for the victim. Generally, she notes, victims of crime are the legal systemhs forgotten people. They merely show up in court to testify. Then, in effect, they're left to fend for themselves, with little hope of being compensated for the loss of property and health.
Judge Forer identifies the lack of meaningful concern for victims of crime as "a major source of public dissatisfaction with the law." She aruges persuasively that whenever possible a sentence should include restitution -- the offender repaying his victim for the damage caused. This direct method of forcing wrongdoers to own up to and pay for their offenses is applicable in many more cases than the so-called experts readily admit, she asserts. And in most instances, she continues, a sentece incorporating restitution is likely to have a much greater rehabilitative effect than imprisonment.
Too often, Judge Forer laments, the choice facing a jurist boils down to "in or out" -- prison or probation. Frequently neither option serves the ends of justice. Neither society's needs, the victim's nor the offender's find adequate place in the balance.
While recognizing the well-documented evils of prison life, Judge Forer advocates incarceration for those people "who pose an unreasonable risk to society." She estimates, however, that possibly fewer than 50,000 of the 400,000 people now occupying the nation's prisons fit that description.
The others, she argues in her concluding chapter, could be dealt with through "meaningful penalties specifically designed to rehabilitate the offender, deter other potential offenders, and provide redress to victims of crime."
That may sound like an overly neat summing up of a very complicated issue. But the path Judge Forer takes to arrive at this conclusion is anything but simplistic. The reader is given the philosophical and historical roots of our way of dealing with criminals -- enough, probably, to temper most longings for the "good old days" when murderers were summarily hung and petty offenders were locked in stocks to suffer public abuse.
The reader also gets a penetrating look at specific areas of crime -- white-collar crime, family crime, street crime. The inequities in sentencing between rich and poor, young and old, black and white, are mercilessly exposed.
Above all, Judge Forer has given the layman bothered by the suspicion that something is drastically amiss in the courts a basis for informed opinion. One is shown the dark side -- the clear, and all too common, injustices. But one also glimpses cause for hope, especially if such thoughtful jurists as the author of "Criminals and Victims" are given a careful hearing by their peers.