Making criminal justice in Massachusetts more evenhanded

MICHAEL S. Dukakis has learned a lot since first entering government nearly two dozen years ago. And one of his most valuable lessons may be patience. The now second-term Massachusetts governor has long since come to recognize that it takes time to get lawmakers to move on key proposals.

Instead of fussing and fuming when the legislature does not act as quickly as he thinks it should, the governor rarely speaks out, even at what might appear to be inordinate delays.

Often this patience has paid off. But there are exceptions. One of them may be the Dukakis-sponsored legislation to reform the criminal-sentencing structure.

The proposal, similar to a measure that came within seconds of passage last year, would establish a set range of penalties for specific crimes against the person. A judge would have to pronounce sentence from within these prescribed bounds or file a written explanation why a stiffer or more lenient sentence was imposed.

Governor Dukakis and other boosters view the legislation as a happy middle ground between stiff mandatory penalties for each offense and the present arrangement under which justice is anything but evenhanded.

The current bill breezed through the House several weeks ago, and it is now in the Senate. How soon the legislation makes it through that chamber, and in what form, could hinge on whether the governor is willing to indulge in some personal lobbying. The longer it takes, the harder it could be, since the proposal is hardly without opposition, especially from within the judiciary.

This is despite the fact that the measure's boosters include Edward F. Hennessey, chief justice of the Massachusetts Supreme Judicial Court; Joseph F. Feeney, chief justice of the Boston Municipal Court; and Samuel E. Zoll, chief justice of the District Courts. Attorney General Francis X. Bellotti is also among the supporters. So are at least two state district attorneys -- William Delahunt of Norfolk County and Ronald A. Pina of Bristol County.

But a number of trial-court judges are less than thrilled with the presumptive-sentence legislation, which would restrict their latitude in imposing penalties, or at least make them account publicly for the punishment they hand out. Particularly distasteful to some members of the bench and some defense lawyers is a provision that would allow a prosecutor to appeal a sentence that he or she felt was too light.

A recent poll of Superior Court judges showed that 47 of the 61 were against the House-approved Dukakis legislation in its present form.

While the proposal may require some fine-tuning, it would seem to provide greater flexibility than some critics imply. Whenever a judge concludes the circumstances of a crime, or the background of a convicted felon, deserve special consideration, a sentence outside the prescribed guidelines is possible. Only the reason for the decision need be stated. That would not seem too much to ask.

From the public's standpoint, the pending legislation would provide more-certain penalties for those who break the same law, regardless of the trial judge.

If potential felons knew it would be nearly impossible to get off with little or no punishment, even from a judge with a reputation for leniency, more might think twice before committing a crime.

If, as its critics now vehemently insist, presumptive sentencing is not the answer to improved justice for all, they owe it to the commonwealth and its citizens to come up with a viable alternative.

In the absence of such a proposal, the Dukakis legislation would seem to be well worth trying. Lawmakers might even consider its passage on a short-term basis. Should things not work out as anticipated, they could replace it with a different and presumably more effective approach to equity in criminal sentencing.

To suggest the present setup with its glaring inequities in administration is more than a failure is to ignore the Bay State's less than impressive recidivism rate.

Presumptive sentencing might not be the answer. But it could be an important step in the right direction.

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