What Is the Right Punishment?

THE BENCH

You are the judge. This is the loneliest responsibility you face on the bench -- the moment when you must sentence a convicted man. The defendant now standing before you is Negro, 53 years old, a first offender who has been found guilty on 14 counts involving sales of marijuana and heroin. During his trial, you saw that he was adamant in denying guilt, but not antagonistic. The medical report says that he is in good health, mentally and physically. The investigator's report reveals that he was born in poverty, one of seven children; he quit school after fourth grade, rose from common laborer to ownership of a small nightclub, a $7,000 house and 300 acres of pasture. The law says you must send this man to prison for a minimum of five years; the maximum sentences add up to 220 years and $280,000 in fines. What sentence will you impose? The case might have made a script for a TV panel show. But the 30 panelists were not participating for fun. They had recently been appointed federal trial judges and they came to Denver from as far away as the Virgin Islands to attend the first federal Sentencing Institute. As the new judges compared their decisions on the dope peddler and a dozen other selected cases, they were startled by the diversity of their sentences. Often enough, they got a second surprise when they learned the actual sentences that had been handed down in the cases they were studying.* "Prejudices & Hunches." Such disparities are a nationwide problem that is not confined to new judges. In 1962: >Auto thieves got an average of four years' imprisonment from federal courts in Maine, but less than 14 months in the Northern District of New York.

>Forgers drew an average of nearly six years in northern Mississippi, just six months in Delaware.

>The average sentence for all types of cases was four years and ten months in southern Iowa, one year and three days in northern New York.

The variations are even more striking than the statistics show, said Judge Luther W. Youngdahl, who headed the team of experienced federal judges conducting the sentencing seminar. "Though the average sentence for bank robbery is slightly more than ten years," Youngdahl pointed out, "one defendant who robbed seven banks received a sentence of only three years, while others convicted of a single robbery have received as much as 25 years." Variation is, of course, desirable when it serves the aims of sentencing--to deter criminals and to keep the community aware of the seriousness of crime, to rehabilitate individual offenders when possible, and to isolate and control them if necessary. Variation is also legitimate when it reflects simple difference in good judgment; unjust discrepancy develops, said Judge Youngdahl, when sentencing is based on "feelings, prejudices, hunches, and off-the-cuff judgments." Listen Closely. The students were reminded that one great aid to objectivity is the presentencing report. A trained probation officer's analysis of the defendant's psychology and life history can prepare the judge. But even so, said Judge James B. Parsons, the man passing sentence must attain "a partial acquaintance with the defendant." Parsons urged the judges to question each defendant about such things as his experiences while under arrest, and "his own self-analysis of why he did what he did, his own ideas as to what kind of sentence or treatment might best help him." At a presentence hearing, the judge's job is "questioning, grunting--to keep the defendant talking--and listening." The judges were also reminded that recent changes in federal law have given them flexible methods of sentencing that can help them to avoid unjust disparity.

The judge now has the option of setting the date when the prisoner will be eligible for parole. Split sentences may be handed down, to be served partly in prison and partly on probation. And if the judge concludes that he must have more information before he can fit the punishment fairly to the criminal, he now can turn the defendant over to the Bureau of Prisons for as much as three months of medical and psychiatric observation before fixing the penalty.

*The dope peddler got 52 years and $30,000 in fines.

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