NONSENSICAL SENTENCING

Governor Jane Swift appears miles away from breaking the stalemate on
rational guidelines to sentence criminals. If anything, her overly strict
proposals represent a setback in a nearly six-year process.

The Massachusetts Sentencing Commission classified hundreds of crimes and
established reasonable ranges of punishment based on the type of offense
and the criminal history of the offender. Judges, prosecutors, defense
lawyers, and other experts devised a reasonable grid that maximizes public
safety without compromising judicial independence. But the work of the
commission has never been enacted because legislators are caught between
squabbling attorneys: Defense attorneys deem the guidelines Draconian;
prosecutors view them as soft-hearted.

Swift now worsens the situation. Her proposed legislation would increase
sentences by 25 to 35 percent across the board and boost the seriousness
level of more than two dozen offenses. Under her plan, the prison
population could spike by as much as 20 percent, according to a draft
review by the Sentencing Commission. This despite the commission's mandate
to concentrate on the incarceration of violent offenders without exceeding
the capacity of the current prison system.

The governor is playing into the hands of prosecutors who can't accept that
intermediate sanctions, such as mandatory day reporting for job training,
make more sense for some nonviolent offenders than rigid mandatory sentences.

For example, the governor would retain mandatory minimum terms for drug
sentences. The Sentencing Commission, however, would permit a judge to
sentence below the minimum, provided the jurist outlines the rationale in
writing. Alternate sentences, such as community service, should be an
option, at least, for minor possession or sale cases.

The work of the district courts would also be undermined under Swift's
proposals. She elevates some high-volume crimes, such as breaking and
entering, that could push some offenses beyond the sentencing jurisdiction
of district courts. While she expands the need for prison beds, Swift would
also clog the Superior Courts.

Michael Traft, a defense attorney and member of the Sentencing Commission,
hopes Swift's proposals are an "opening offer." He sees room to work with
the governor on judicial independence, alternate sentences, and other
areas. "The elements are there to put together a reasonable compromise," he
says. One good sign is the governor's interest in post-incarceration
supervision that could reduce recidivism.

Swift is eager to position herself as tough on crime, but she would do well
to reconsider the commission's well-thought-out proposals, which are both
tough and pragmatic.