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Costly rhetoric
Lame duck Jane Swift wants to go out with her law-and-order legacy intact. Too bad that by axing funds for sentencing reform, she’s all but ensuring that violent crime will continue to rise.
BY KRISTEN LOMBARDI

AS LONG AS we continue to live in a law-and-order culture that laps up measures like mandatory sentencing, three-strikes-and-you’re-out rules, and prisoner chain gangs, we can expect our courts and prisons to remain deeply unfair. Latest example? Governor Jane Swift’s defunding of the Massachusetts Sentencing Commission.

Last month, Swift chalked up another achievement in her tough-on-crime agenda. On July 29, in the midst of a brutally harsh $355 million budget veto, she wiped away all $232,000 in funding for the Sentencing Commission, the state agency dedicated to overhauling the criminal-justice system. By midnight on July 31, House members had failed — by a slim 10-vote margin — to muster enough support to override the governor’s veto. The unexpected cut has since left the 15-member Sentencing Commission scrambling to find funds. Unless a miracle appropriation comes through, its four-person staff will shutter its offices for good come Friday, August 23.

Given the prevailing climate on criminal-justice issues, the loss comes as no big surprise. The Sentencing Commission, after all, doesn’t scream all things law-and-order. In fact, under the leadership of Superior Court judge Robert Mulligan, it has spent eight years pushing for comprehensive sentencing guidelines that, for the most part, shy away from stiff, across-the-board penalties. It has even trumpeted some political taboos — most notably, revamping draconian mandatory-minimum drug-sentencing laws. If anything, the commission may seem, in the words of one criminal-justice expert, like "a progressive, goo-goo government" initiative.

Ultimately, the governor’s latest move shows just how lightly politicians often treat such complicated matters as criminal justice. That Swift would eliminate the commission’s funding — and thus drain momentum from reforms that have been years in the making — illustrates the extent to which she relies on platitudes at the expense of the long-term view. Criminal-justice policy isn’t about flashy rhetoric, however. Martin Rosenthal, of the Massachusetts Association of Criminal Defense Lawyers (MACDL), regards the issue as one of "the most sensitive and important responsibilities of government." He has spent two decades working toward systemic reform, watching legislators handle crime measures in predictably similar ways. Rather than recognizing their significance, he says, "politicians end up playing politics with crime and punishment." At the very least, he adds, "they have been recklessly indifferent about the long-term consequences of their actions."

THERE’S NO DOUBT that the state’s criminal-justice system needs comprehensive reform — changes that take into account the full spectrum of its institutional apparatus, from the courts to the Department of Correction and the Parole Board. As it stands, sentencing remains "haphazard" and "arbitrary," as a 1991 report by the Boston Bar Association puts it, a product of judicial will and mandatory penalties. In Massachusetts, for instance, first-time, nonviolent drug offenders routinely spend more time behind bars than rapists and armed robbers — a failed result of mandatory minimums for drug convictions. For most other offenses, meanwhile, people who commit similar crimes face wildly disparate punishments.

Consider, if you will, two notorious criminal cases this year. Last February, Superior Court judge Ernest Murphy made headlines related to a statutory rape case involving a 14-year-old girl. Murphy spared the young girl’s rapist from prison, even though the man, who was 17 at the time of the rapes, had admitted to his involvement with the victim. Instead, Murphy sentenced the man to eight years of probation. (The sentence included punishment for an armed robbery in Mansfield, in addition to the statutory rape charges.) Compare that to Superior Court judge Sandra Hamlin’s decision on another rape case. As Murphy set one rapist free, Hamlin was sending defrocked Boston priest John Geoghan off to prison for 10 years. This, despite the fact that Geoghan had been convicted not of rape, but of squeezing a boy’s buttocks.

Such dramatic differences in sentencing are actually the norm. In an annual survey of sentencing practices, the Sentencing Commission found that only 26 percent of judicial punishments adhere to recommended guidelines. By contrast, 74 percent fall years outside the advised range, about as far on the tough side (30 percent) as on the lenient (44 percent). Michael Keating, president of the Boston Bar Association (BBA), who authored a 1991 report on the state’s sentencing "crisis," views this disparity as par for the course. "The variation," he explains, "goes along with a system in which judges have total, unfettered discretion" — or, as in drug, firearms, and drunk-driving cases, none at all.

Here, in theory, is where the Sentencing Commission comes in. Set up in 1994, at a time when "truth-in-sentencing" legislation was being passed throughout the country, it consists of 15 members, including judges, prosecutors, defense attorneys, and prison officials. Its mission: to devise an overarching sentencing policy by drafting guidelines in accordance with the gravity of a crime and the prior record of a criminal. In essence, its purpose is to make punishment more rational.

Over the years, the commission has lived up to the task. Since 1994, it has compiled a data bank replete with information on every convicted criminal in the state, on 1922 state statutory crimes, and on their corresponding sentences. In 1996, it used this information to propose a set of guidelines widely described as fair, reasonable, and balanced. The commission’s "grid," as it’s known, satisfies the call for uniform sentencing by ranking offenses on a scale of one to nine — the highest being homicide — and determining punishment that fits the crime. If a judge wants to go outside these guidelines, he or she would have to provide a written explanation. By law, it’s had to carry out the job with an eye on the state’s existing prison population. That means that it cannot simply raise the bar for every offense, which would inundate the state’s prisons and thus swell the budget. So it has toughened sentences for the most dangerous criminals — murderers, violent rapists, and armed robbers — while lessening those for petty, nonviolent offenders. As a result, the proposed guidelines feature a fair share of alternatives to prison, such as probation and intermediate sanctions, which comprise penalties for low-level offenders such as community service, substance-abuse treatment, random drug testing, and rehabilitation programs offering job training and high-school diplomas. They also allow judges to depart from draconian drug laws and instead sentence addicts to treatment and intensive supervision.

Rosenthal, of MACDL, who heads the association’s own task force on sentencing reform, echoes the sentiment among many criminal-justice experts when he hails the commission’s guidelines as "the biggest thing to have happened in criminal-justice policy here in decades." He adds, "This was a massive revamping of sentencing practices. It was state-of-the-art in its thinking."

It didn’t take long for politicians to make a mess of things, however. When the commission filed its sentencing-guidelines bill on Beacon Hill in 1996, the law-and-order brigade sounded off. Legislators criticized the measure as too soft, largely because it eliminated mandatory minimums for drug convictions. For six years, the bill languished before the legislature’s Joint Committee on Criminal Justice, as opponents, like Swift, put forth their own tough-on-crime initiatives. In October 2001, the committee reported favorably on a tinkered version of the bill — only to watch the politicking play out on the House floor. Later that month, House minority leader Francis Marini (R-Hanson) led the effort to tighten the guidelines with an amendment that would have ratcheted up punishment for 30 crimes, from weapons possession to child molestation. The move came down to what Rosenthal aptly calls "crude gut instinct." House members approved the amendment on a voice vote, without even reading it. Reform turned out to be, as Boston attorney Peter Costanza puts it, "merely a disguised way to make sentences more harsh."

The lock-’em-up rhetoric would come at a hefty price — literally. Earlier this year, the Sentencing Commission did an analysis of the House bill, in which it found that the legislation would have increased the prison population by thousands of people — 3631, to be exact. Since it costs the state $35,000 a year to house each prisoner, that translates into more than $127 million per year, a figure that doesn’t even take into account the need to build new facilities to accommodate thousands of additional prisoners. (Similarly, in August 2001, the commission determined that Swift’s sentencing guidelines would have boosted the prison population by 8667 prisoners, costing the state another $303 million.) The whopping price tag made the House bill untenable. "It didn’t have a financial component," says Senator Cynthia Creem (D-Newton), the Senate chair of the Criminal Justice Committee, explaining why the legislation died in the Senate last month. "I believe in public safety," she says. "But you cannot make these huge statements about what’s best for the state without backing them up."

Which, of course, speaks to why many experts see the elimination of the Sentencing Commission’s funding as so ironic. Although members have put forth their proposed guidelines, they’ve yet to see them enacted. Once that happens, they must monitor the systemic changes to ensure success. What the commission amounts to is an agency focused on the practical outcomes of criminal-justice policy. You’d think that legislators would embrace such a body, which can prevent them from making poor, fiscally irresponsible choices. Then again, this agency can also serve as a thorn in the side of politicians who’d rather blindly spout catchy slogans. Notes Michael Traft, a Boston defense attorney and commission member, "Eliminating this commission blinds the state from any attempt to create a rational criminal-justice policy."

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Issue Date: August 22 - 29, 2002
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