Sentencing Matters.

Michael Tonry Oxford University Press, 198 Madison Avenue, New York, NY 10016. 196 pp., $29.95.

Reviewed by Sheila Balkan

For the last 25 years, the United States has experimented with a radically revised view of incarceration. In Sentencing Matters, Michael Tonry, Sonosky Professor of Law and Public Policy at the University of Minnesota, critiques this experiment and concludes that sentencing systems that rely on rigid and mechanical criteria, such as the Federal Sentencing Guidelines, are failures. Methodically researched and scholarly, this book provides a comprehensive view of factors that are applied when making sentencing policy.

Through a thorough examination of the ways in which a sentencing system can be evaluated, Tonry looks at current trends in sentencing in light of lawmakers' objectives. In demonstrating that the sentencing revolution cannot survive scrutiny, Tonry shows that even the most tough-minded justifications for mandatory sentences--crime control and retribution--are little served by this system.

By dispelling the myths that punishments are being made to fit crimes and that harsher sentences have an effect on reducing crime, Tonry is able to explain why judges and attorneys detest inflexible sentencing rules.

Based on promises of making sentencing fair by making punishments proportionate to crime and ending racial and class disparities in sentencing for similar crimes, imposing a scaled approach to sentencing became the justification for the current system. In truth, as Tonry shows, the two-dimensional grid that determines federal sentences (severity of the crime along one axis and criminal record on the other) is defective in practice and mandates needlessly harsh sentences.

Tonry explains that the two-axis grid accounts only for criminality. It prevents judges from viewing defendants holistically so that all relevant circumstances and the possibility of alternative sentences may be considered.

According to Tonry,

Unfortunately, the past quarter century's innovations have also diminished the quality of justice dispensed in criminal courts. Our predecessors knew that mandatory penalties are seldom effective deterrents, sometimes produce palpably unjust punishments, and often result in disingenuous actions by judges and lawyers to blunt their effect. Many policy makers forgot those lessons and are only now relearning them. Countless individual offenders and the integrity of sentencing have suffered as a result.

The book also addresses an important factor in the federal sentencing system: the greatly increased power of the prosecutor. Despite the premise that sentencing guidelines bring equality, studies have shown that unwarranted disparities in sentences still exist between defendants of different race, gender, age, employment background, and marital status. Certainly one reason for the disparity is the power given to prosecutors to influence the sentences of cooperative defendants so they receive more lenient sentences than those under the guidelines. This is a power not given to judges.

In practice, the most culpable defendants, the ones who have the most knowledge of the criminal enterprise, such as drug kingpins, are the ones most able to benefit from this loophole. They are in a position to ameliorate their sentences while less knowledgeable defendants are bound by the system's harsh sentencing rules. By having like cases sentenced differently, prosecutors manipulate sentences in ways that create even more vast disparities.

Tonry compares the federal mandatory sentencing system to penological approaches in other jurisdictions. He addresses reasons why the federal sentencing system in particular is economically unfeasible and unable to effectively carry out its mission. He provides important insight into alternative sentences and points out that many methods of punishment, such as supervised release, home detention, and community service, are at least as effective and are far less expensive to administer than incarceration.

System Origins

Tonry discusses in considerable detail how the federal sentencing system became so untenable. Tracing the origin of the Sentencing Reform Act of 1984, he observes that attention was never given to the financial costs associated with a determinate sentencing system, which resulted in unprecedented prison overcrowding. The motives that prompted abolishing parole, curtailing judicial discretion, and ensuring longer sentences did not arise from an interest in Improving crime-control policies but from political pressures that were intended to win votes.

Ultimately, Tonry's criticism of mandatory sentencing leads him to offer proposals for creating a better means of handling the task of punishment. He recommends changes such as making mandatory penalties presumptive, directing judges to impose the least punitive appropriate sentence, and again providing a way for correctional or parole authorities to periodically review the sentences.

While the book is primarily academic in perspective, it contains information that lawyers and other sentencing practitioners will find useful. Unfortunately, few will probably find the time to read through this weighty, though short, book.

I was quite impressed by the book. It makes an important contribution to understanding sentencing in America today.

Sheila Balkan is a criminologist in Santa Monica, California.