Justice by the numbers; mandatory sentencing drove me from the bench.

Michael S. would have been one of the more than 600,000 incarcerated persons in the United States. He would have been a statistic, yet another addition to a clogged criminal justice system. But he's not--in part because to me Michael was a human being: a slight 24-year-old with a young wife and small daughter. Not that I freed him; I tried him and found him guilty. He is free now only because he is a fugitive. I have not seen him since the day of his sentencing in 1984, yet since that day our lives have been inextricably connected. Because of his case I retired from the bench.

Michael's case appeared rountine. He was a typical offender: young, black, and male, a high-school dropout without a job. The charge was an insignificant holdup that occasioned no comment in the press. And the trial itself was, in the busy life of a judge, a run-of-the-mill event.

The year before, Michael, brandishing a toy gun, held up a taxi and took $50 from the driver and the passenger, harming neither. This was Michael's first offense. Although he had dropped out of school to marry his pregnant girlfriend, Michael later obtained a high school equivalency diploma. He had been steadily employed, earning enough to send his daughter to parochial school--a considerable sacrifice for him and his wife. Shortly before the holdup, Michael had lost his job. Despondent because he could not support his family, he went out on a Saturday night, had more than a few drinks, and then robbed the taxi.

There was no doubt that Michael was guilty. But the penalty posed problems. To me, a robbery in a taxi is not an intrinsically graver offense than a robbery in an alley, but to the Pennsylvania legislature, it is. Because the holdup occurred on public transportation, it fell within the ambit of the state's mandatory sentencing law--which required a minimum sentence of five years in the state pentitentiary. In Pennsylvania, a prosecutor may decide not to demand imposition of that law, but Michael's prosecuting attorney wanted the five-year sentence.

One might argue that a five-year sentence for a $50 robbery is excessive or even immoral, but to a judge, those arguments are necessarily irrelevant. He or she has agreed to enforce the law, no matter how ill-advised, unless the law is unconstitutional.

I believed the mandatory sentencing law was, and like many of my colleagues I had held it unconstitutional in several other cases for several reasons. We agreed that it violates the constitutional principle of separation of powers because it can be invoked by the prosecutor, and not by the judge. In addition, the act is arbitrary and capricious in its application. Robbery, which is often a simple purse snatching, is covered, but not child molestation or incest, two of society's most damaging offenses. Nor can a defendant's previous record or mental state be considered. A hardened repeat offender receives the same sentence as a retarded man who steals out of hunger. Those facts violate the fundamental Anglo-American legal principles of individualized sentencing and proportionality of the penalty to the crime.

Thus in Michael's case, I again held the statute to be unconstitutional and turned to the sentencing guidelines--a state statute designed to give uniform setences to offenders who commit similar crimes. The minimum sentences prescribed by the guidelines was 24 months.

A judge can deviate from the prescribed sentence if he or she writes an opinion explaining the reasons for the deviation. While this sounds reasonable in theory, "downwardly departing" from the guidelines is extremely difficult. The mitigating circumstances that influence most judges are not included in the limited list of factors on which "presumptive" sentence is based--that an offender is a caretaker of small children; that the offender is mentally retarded; or that the offender, like Michael, is emotionally distraught.

So I decided to deviate from the guidelines, sentencing Michael to 11-and-a-half months in the county jail and permitting him to work outside the prison during the day to support his family. I also imposed a sentence of two years' probation following his imprisonment conditioned upon repayment of the $50. My rationale for the lsser penalty, outlined in my lengthy opinion, was that this was a first offense, no one was harmed, Michael eacted under the pressures of unemployment and need, and he seemed truly contrite. He had never committed a violent act and posed no danger to the public. A sentence of close to a year seemed adequate to convince Michael of the seriousness of his crime. Nevertheless, the prosecutor appealed.

Michael returned to his family, obtained steady employment, and repaid the victims of his crime. I thought no more about Michael until 1986, when the state supreme court upheld the appeal and ordered me to resentence him to a minimum of five years in the state penitentiary. By this time Michael had successfully completed his term of imprisonment and probation, including payment of restitution. I checked Michael's record. He had not been rearrested.

I was faced with a legal and moral dilemman. As a judge I had sworn to uphold the law, and I could find no legal grounds for violating an order of the supreme court. Yet five years' imprisonment was groslly disproportionate to the offense. The usual grounds for imprisonment are retribution, deterrence, and rehabilitation. Michael had paid his retribution by a short term of imprisonment and by making restitution to the victims. He had been effectively deterred from committing future crimes. And by any measurable standard he had been rehabilitated. There was no social or criminological justification for sending him back to prison. Given the choice between defying a court order or my conscience, I decided to leave the bench where I had sat for 16 years.

That didn't help Michael, of course; he was resentenced by another judge to serve the balance of the five years: four years and 15 days. Faced with this prospect, he disappeared. A bench warrant was issued, but given the hundreds of fugitives--including dangerous ones--loose in Philadelphia, I doubt that anyone is seriously looking for him.

But any day he may be stopped for a routine traffice violation; he may apply for a job or a license; he may even be the victim of a crime--and if so, the ubiquitous computer will be alerted and he will be returned to prison to serve the balance of his sentence, plus additional time for being a fugitive. It is not a happy prospect for him and his family--nor for America, which is saddled with a punishment system that operates like a computer--crime in, points tallied, sentence out--utterly disregarding the differences among the human beings involved.

The mandatory sentencing laws and guidelines and exist today in every state were designed to smooth out the inequities in the American judiciary, and were couched in terms of fairness to criminals--they would stop the racist judge from sentencing black robbers to be hanged, or the crusading judge from imprisoning pot smokers for life. Guidelines make sense, for that very reason. But they have had an ugly and unintended result--and increase in the number of American prisoners and an increase in the length of the sentences they serve. Meanwhile, the laws have effectively neutralized judges who prefer sentencing the nonviolent to alternative programs or attempt to keep mothers with young children out of jail.

Have the laws made justice fairer--the central objective of the law? I say no, and a recent report by the Federal Sentencing Commission concurs. It found that, even under mandatory sentencing laws, black males served 83.4 months to white males' 53.7 months for the same offenses. (Prosecutors are more likely to demand imposition of the mandatory laws for blacks than for whites.)

Most important, however, as mandatory sentencing packs our prisons and busts our budgets, it doesn't prevent crime very effectively. For certain kinds of criminals, alternative sentencing is the most effective type of punishment. That, by the way, is a cold, hard statistic--rather like Michael will be when they find him.

Sentence to death

In the past two decades, all 50 state legislatures have enacted mandatory sentencing laws, sentencing guideline statutes, or both. The result: In 1975 there were 263,291 inmates in federal and state prisons. Today there are over 600,000--more than in any other nation--the bill for which comes to $20.3 billion a year. Yet incarceration has not reduced the crime rate or made our streets and communities safer. The number of known crimes committed in the U.S. has increased 10 percent in the last five years.

How did we get into this no-win situation? Like most legislative reforms, it started with good intentions. In 1970, after the turmoil of the sixties, legislators were bombarded with pleas for "law and order." A young, eager, newly appointed federal judge, Marvin Frankel, had an idea.

Before his appointment, Frankel had experienced little personal contact with the criminal justice system. Yet his slim book, Fair and Certain Punishment, offered a system of guidelines to determine the length of various sentences. Each crime was given a certain number of points. The offender was also given a number of points depending upon his or her prior record, use of a weapon, and a few other variables. The judge merely needed to add up the points to calculate the length of imprisonment.

The book was widely read and lauded for two main reasons. First, it got tough on criminals and made justice "certain." A potential offender would know in advance the penalty he would face and thus be deterred. (Of course, a large proportion of street crimes are not premeditated, but that fact was ignored.) And second, it got tough on the "bleeding heart" judges. All offenders similarly situated would be treated the same.

The plan sounded so fair and politically promising that many states rushed to implement it in the seventies. In Pennsylvania, members of the legislature admonished judges not to oppose the guidelines because the alternative would be even worse: mandatory sentences. In fact, within a few years almost every jurisdiction had both sentencing guidelines and mandatory sentencing laws. Since then, Congress has enacted some 60 mandatory sentencing laws on the federal level.

As for unfairnesses in sentencing--for instance, the fact that the robber with his finger in his jacket gets the same sentence as the guy with a semiautomatic--these could have been rectified by giving appellate courts jurisdiction to review sentences, as is the law in Canada. This was not done on either the state or federal level. Thus what influential criminologist James Q. Wilson had argued during the height of the battle had become the law of the land: The legal system should "most definitely stop pretending that the judges know any better than the rest of us how to provide 'individualized justice."

Hardening time

I'm not sure I knew better than the rest of you, but I knew a few things about Michael and the correctional system I would be throwing him into. At the time of Michael's sentencing, both the city of Philadelphia and the commonwealth of Pennsylvania were, like many cities and states, in such poor fiscal shape that they did not have money for schools and health care, let alone new prisons, and the one they did have were overflowing. The city was under a federal order to reduce the prison population; untried persons accused of dangerous crimes were being released, as were offenders who had not completed their sentences.

As for Michael, his problems and those of his family were very real to me. Unlike appellate judges who never see the individuals whose lives and property they dispose of, a trial judge sees living men and women. I had seen Michael and his wife and daughter. I had heard him express remorse. I had favorable reports about him from the prison and his parole officer. Moreover, Michael, like many offenders who appeared before me, had written to me several times. I felt I knew him.

Of course, I could have been wrong. As Wilson says, judge are not inflatible--and most of them know that. But they have heard the evidence, seen the offender, and been furnished with presentence reports and psychiatric evaluations. They are in a better position to evaluate the individual and devise an appropriate sentence than anyone else in the criminal justice system.

Yet under mandatory sentencing laws, the complexities of each crime and criminal are ignored. And seldom do we ask what was once a legitimate question in criminal justice: What are the benefits of incarceration? The offenders are off the streets for the period of the sentence, but once released, most will soon be rearrested. (Many crimes are committed in prison, including murder, rape, robbery, and drug dealing.) They have not been "incapacitated," another of the theoretical justifications for imprisonment. More likely, they have simply been harpened.

Sentence structure

Is there another way to sentence criminals without endangering the public? I believe there is. During any tenure on the bench, I treated imprisonment as the penalty of last resort, not the penalty of choice. And my examination of 16 years' worth of cases suggests my inclination was well founded. While a recent Justice Department study found that two thirds of all prisoners are arrested for other offenses within three years of release, more than two thirds of the 1,000-plus offenders I sentenced to probation conditioned upon payment of reparations to victims successfully completed their sentences and were not rearrested. I am not a statistician, so I had my records analyzed candidate in criminology at the Wharton School of the University of Pennsylvania. He confirmed my findings.

The offenders who appeared before me were mostly poor people, poor enough to qualify for representation by a public defender. I did not see any Ivan Boeskys or Leona Helmsleys, and although there was a powerful mafia in Philadelphia, I did not see any dons, either. Approximately three fourths of these defendants were nonwhite. Almost 80 percent were high school dropouts. Many were functionally illiterate. Almost a third had some history of mental problems, were retarded, or had been in special schools. One dreary day my court reporter said plaintively, "Judge, why can't we get a better class of criminal?"

Not all of these offenders were sentenced to probation, obviously. But I had my own criteria or guidelines--very different from those established by most states and the federal government--for deciding on a punishment. My primary concern was public safety. The most important question I asked myself was whether the offender could be deterred from committing other crimes. No one can predict with certainty who will or will not commit a crime, but there are indicators most sensible people recognize as danger signals.

First, was this an irrational crime? If an arsonist sets a fire to collect insurance, that is a crime but also a rational act. Such a person can be deterred by being made to pay for the harm done and the costs to the fire department. However, if the arsonist sets fires just because he likes to see them, it is highly unlikely that he can be stopped from setting others, no matter how high the fine. Imprisonment is advisable even though it may be a first offense.

Second, was there wanton cruelty? If a robber maims or slashes the victim, there is little likelihood that he can safely be left in the community. If a robber simply displays a gun but does not fire it or harm the victim, then one should consider his life history, provocation, and other circumstances in deciding whether probation is appropriate.

Third, is this a hostile person? Was his crime one of hatred, and does he show any genuine remorse? Most rapes are acts of hostility, and the vast majority of rapists have a record of numerous sexual assaults. I remember one man who raped his mother. I gave him the maximum sentence under the law--20 years--but with good behavior, he got out fairly quickly. He immeidately raped another elderly woman. Clearly, few rapists can safely be left in the community, and in my tenure, I incarcerated every one.

Yet gang rape, although a brutal and horrifying crime, is more complicated. The leader is clearly hostile and should be punished severely. Yet the followers can't be so neatly categorized. Some may act largely out of cowardice and peer pressure.

Fourth, is this a person who knows he is doing wrong but cannot control himself? Typical of such offenders are pedophiles. One child abuser who appeared before me had already been convicted of abusing hist first wife's child. I got him on the second wife's child and sentenced him to the maximum. Still, he'll get out with good behavior, and I shudder to think about the children around him when he does. This is one case in which justice is not tough enough.

By contrast, some people who have committed homicide present very little danger of further violence--although many more do. Once a young man came before me because he had taken aim at a person half a block away and then shot him in the back, killing him. Why did he do it? "I wanted to get me a body." He should never get out. But the mandatory codes don't make great distinctions between him and another murderer who came before me, a woman who shot and killed a boy after he and his friends brutally gang-raped her teenage daughter.

I found this woman guilty of first-degree murder, but I found no reason to incarcerate her. She had four young children to support who would have become wards of the welfare department and probably would have spend their childhoods in a series of foster homes. I placed her on probation--a decision few judges now have the discretion to impose. She had not been arrested before. She has not been arrested since.

Of course, the vast majority of men, women, and children in custody in the United States are not killers, rapists, or arsonists. They're in prison for some type of theft--a purse snatching, burglary, or embezzlement. Many of these criminals can be punished without incarceration. If you force a first-time white-collar criminal to pay heavily for his crimes--perhaps three times the value of the money of property taken--he'll get the message that crime does not pay. As for poor people, stealing is not always a sign that the individual is an unreasonable risk to the community. It's often a sign that they want something--a car, Air Jordans--that they are too poor to buy themselves. Many of them, if they are not violent, can also be made to make some restitution and learn that crime doesn't pay.

Of course, to most of us, the idea of nonprison sentence is tantamount to exoration; a criminal sentenced to probation has effectively "gotten off." And there's a reason for that impression: Unless the probationer is required by the sentencing judge to perform specific tasks, probation is a charade. The proabationer meets with the probation officer, briefly, perhaps once a month--making the procedure a waste of time for both. The officer duly records the meeting and two go their separate ways until the probationer is arrested for another offense.

When I made the decision not to send a criminal to prison, I wanted to make sure that the probation system I sent them into had teeth. So I set firm conditions. If the offender was functionally illiterate, he was unemployable and would probably steal or engage in some other illegal activity once released. Thus in my sentencing, I sent him to school and ordered the probation officer to see that he went. (I use the masculine pronoun deliberately for I have never seen an illiterate female offender under the age of 60.) I ordered school dropouts to get their high school equivalency certificates and find jobs. All offenders were ordered to pay restitution or reparations within their means or earning capacity to their victims. Sometimes it was as little as $5 a week. Offenders simply could not return to their old, feckless lifestyles without paying some financial penalty for their wrongdoing.

Monitoring probation wasn't easy for me, or the probation officers with whom I worked. Every day I'd come into my office, look at my calendar, and notice that, say, 30 days had passed since Elliott was let out. So I'd call the probation office. Has Elliott made his payment? Is he going to his GED class? And so on. If the answer was no, I'd hold a violation hearing with the threat of incarceration if the conditions were not met within 30 days. After I returned a few people to jail for noncompliance, both my offenders and their probation officers knew I meant business. (Few probation officers protested my demands; their jobs were more meaningful and satisfying, they said.)

Of course, probation that required education and work and payment plans meant real work for criminals, too. But there was a payoff both the probation officers and I could see: As offenders worked and learned and made restitution, their attitudes often changed dramatically.

Time and punishment

My rules of sentencing don't make judgeship easier; relying on mandatory sentencing is a far better way to guarantee a leisurely, controversy-free career on the bench. But my rules are, I believe, both effective and transferable: an application of common sense that any reasonable person could follow to similar ends. What prevents Americans from adopting practical measures like these is an atavistic belief in the sanctity of punishment. Even persons who have never heard of Emmanuel Kant or the categorial imperative to punish believe that violation of law must be followed by the infliction of pain.

If we Americans treated crime more practically--as socially unacceptable behavior that should be curbed for the good of the community--we might begin to take the rational approach to the development of alternatives to prison. We might start thinking in terms not of punishment but of public safety, deterence, and rehabilitation. Penalties like fines, work, and payment of restitution protect the public better and more cheaply than imprisonment in many cases.

Mind you, sentencing guidelines are not inherently evil. Intelligent guidelines would keep some judges from returning repeat offenders to the streets and others from putting the occasional cocaine user away for 10 years. Yet those guidelines must allow more latitude for the judge and the person who comes before him. While some states' sentencing laws include provisions that allow judges to override the mandatory sentences in some cases, the laws are for the most part inflexible--they deny judges the freedom to discrimnate between the hardened criminal and the Michael. Richard H. Girgenti, the criminal justice director of New York state, has long proposed that the legislature give judges more discretion to impose shorter sentences for nonviolent and noncoercive felonies. This common-sense proposal has not been acted on in New York or any other state with mandatory sentencing laws.

Current laws are predicated on the belief that there must be punishment for every offense in terms of prison time rather than alternative sentences. But when it comes to determining the fate of human being, there must be room for judgment. To make that room, we must stop acting as if mathematic calculations are superior to human thought. We must abolish mandatory sentencing laws and change the criteria on which sentencing guidelines are based.

Why not permit judges more freedom in making their decisions, provided that they give legitimate reasons? (If a judge doesn't have a good reason for deviating--if he's a reactionary or a fool--his sentencing decision will be overturned.) And why not revise the guidelines to consider dangerousness rather than the nomenclature of the offense? If we made simple reforms like these, thousands of nonthreatening, nonhabitual offenders would be allowed to recompense their victims and society in a far less expensive and far more productive way.

You may be wondering, after all this, if I have a Williw Horton in my closet--a criminal whose actions after release privately haunt me. I do. I sentenced him to 10 to 20 years in prison--the maximum the law allowed--for forcible rape. He was released after eight years and promptly raped another woman. I could foresee what would happen but was powerless to impose a longer sentence.

And then there are the other cases that keep me up nights: those of men and women I might have let out, but didn't. And those of people like Michael, for whom justice shouldn't have been a mathematical equation.