A Rage to Punish: The Unintended Consequences of Mandatory Sentencing.

The late Judge Lois Forer's book, A Rage to Punish, could more aptly be titled, Forer's Rage at Mandatory Punishment. Her rage focuses on the nation's desire to give criminals their "just desserts" without regard to their potential danger to society, the mitigating factors of the crime, or the high cost of their incarceration.

This book should be required reading for everyone in the criminal justice system. Perhaps it should accompany every sentencing letter requesting a downward departure from incarceration to probation when the client is not a danger to society.

The introductory chapter has an interesting, though abbreviated, description of our criminal justice system, including discussion of "The Reformation"--the expansion of due process rights and sweeping reforms in criminal procedure during the Warren Court years. We are now in a phase of "The Counter-Reformation," whose proponents seek to block and undo the decisions of the Warren Court. Their goal, according to the author, "is to transmogrify the criminal justice system of the United States to a system of crime control through the use of severe penalties: capital punishments and laws mandating long periods of incarceration."

Judge Forer's basic premise is that incarceration should be mandated only as a last resort for those who pose a risk to society. The mandatory sentencing guidelines, with their draconian sentences and provisions that mitigating factors are not to be considered in sentencing, have done nothing to combat crime on the street. Rather, wholesale sentencing based primarily on statistical analysis of a crime has done a grave injustice to individuals. These mandatory sentences, a political reaction to the public's rage over street crime, have only destroyed salvageable lives and so swollen the prison population that financial costs to the public are unacceptably high.

Judge Forer describes fact-sensitive cases at which she presided and the sentences she imposed. She also cites a high success with strict probationary sentences that included mandatory education or vocational training and restitution when appropriate. Her findings suggest that many criminals are better served with strict probation, which allows them to gain employment skills and to remain with their children.

Individualized sentencing has enabled people to rebuild lives and become productive members of society at minimal cost to the public and with a surprisingly low rate of recidivism. Conversely, Judge Forer argues, most incarcerated people will commit new crimes when released. While in prison they will remain uneducated, illiterate, and separated from families that rely on them.

It has been conceded by the judiciary that prisons do not rehabilitate or provide opportunities for remedial education and job training for inmates. Yet society spends between $35,000 and $40,000 a year to house each prisoner. Judge Forer adds to these figures the cost of foster care at $20,000 a year per child for children whose mothers are increasingly being incarcerated for low-level drug crimes such as unknowingly being used to transport drugs. It was estimated that by the end of 1992, about 167,000 children had mothers in jail--a problem for society that cannot be calculated in dollars alone.

Citing an American Bar Association study, Judge Forer says that arrests for drugs rose by 24 percent from 1985 to 1991 although surveys showed that drug use dropped form 12 to 6 percent. The number of drug offenses rose by 237 percent while the prison population rose by 50 percent.

What is most disturbing, Judge Forer writes, is that sentencing discretion has been stripped from the courts and given to the prosecutors. She mentions that Judge Vincent Broderick of the Southern District of New York, while chair of the Criminal Law Committee of the Judicial Conference of the United States, shared her concern. Speaking to the U.S. Sentencing Commission on March 22, 1993, Judge Broderick expressed reservations about the power that young prosecutors have in granting or withholding substantial cooperation motions that allow sentencing courts to adjust a mandatory sentence downward. "We're dealing here with 30-year-old, 28-year-old prosecutors without a life experience, without considerable experience, in the criminal justice area," he said. [See also Vincent L. Broderick, The Delusion of Mandatory Sentencing, TRIAL, Aug. 1994, at 62.]

Judge Broderick further stated that "one danger, and it's a constant danger, is that we forget the fact that there is a human element in every sentencing, and that is something that just can't be dealt with on a statistical basis."

Judge Forer also suggests that each case is not only fact-sensitive but individualized: There are those who must be incarcerated, but only those whose crimes and whose personal history pose a risk to society.

For this reviewer, A Rage to Punish pleads the case for individualized, humane sentencing and proposes "A New Agenda." We can only hope that politicians, Congress, and the public begin to understand the price we all pay for wholesale incarceration.