The Crime of Sentencing

Joe is in prison for robbing a gas station in Brooklyn. Sam is in for robbing one in a village upstate. They compare notes: Joe's maximum sentence is six years; he could be out in two. Sam's maximum is 25 years; with luck, he'll be out in 10. Neither understands the disparity, nor knows for sure when he will actually get out. Neither do their victims, who also ask why Joe and Sam shouldn't serve full terms.

The reason for all the uncertainty is a process called indeterminate sentencing, once considered a humanizing reform. Governor Cuomo and New York legislative leaders show laudable interest in reforming the reform. Though the task is perilous, it is worth pursuing.

Indeterminate sentencing grew from the tradition of trying to rehabilitate prisoners. A judge sentences a convict to a span of years; the parole board appraises his degree of rehabilitation and decides when he'll actually be released. Lately this ideal of rehabilitation has fallen on hard times. Most penologists no longer believe that prisons can rehabilitate criminals, especially when they are chronically overcrowded and rundown.

The parole board, however, retains the power of release, basing it as much on an assessment of the prisoner's crime as on his rehabilitation. In effect, the board resentences the convict, appraising the trial record and other information in proceedings that the public rarely sees. The resulting uncertainty and potential for abuse mislead the public and disturb any student of the process.

Flawed as this system is, improving it is tricky. To abolish parole and make inmates serve out their terms is no answer. Judges' sentencing habits vary markedly with personality and location. A stabbing in Queens draws far less punishment than one in rural Pine Plains.

Legislating fixed sentences also invites trouble; no detailed code could ever anticipate all the possible variations of basic crimes. The man who shoots up a bar and escapes with hundreds of dollars is guilty of armed robbery - but so is the teen-ager who wields a pocket knife to take a schoolmate's lunch money. The Legislature, in the sway of politics, is also likely to lengthen specific sentences with every sensational crime report, putting unbearable pressure on prison capacity.