MANDATORY SENTENCING REMOVES HUMAN THOUGHT AND COMPASSION FROM TRIALS

I don't know Gabriel Rubino. Don't know if he's hell on two legs or if he
is, as friends and family say, a mostly good kid who did a single stupid
thing.

What I do know, from reading newspaper accounts, is that this 19-year-old
from Waterloo, Iowa, is serving a 25-year jail term for kicking down a
door. What I do know is that justice has not been served.

Unless, of course, your idea of justice happens to fall on the Draconian side.

Otherwise, I think you'd have to agree that Gabriel Rubino is a victim of
the trend toward mandatory sentencing guidelines that began during the
anti-drug crusades of the Reagan years and grew out of a widespread belief
that some judges were too lenient on crime.

The result, however, has been slowly to rob judges of discretion, which is
what happened in this case. The judge's hands were tied. He had no leeway
to impose a less severe punishment.

Here's what happened: One night, about a year and a half ago, Rubino,then
17, and some friends threw beer bottles at the window of an apartment where
a party was in progress. This, in escalation of an ongoing dispute. From
inside the building, a 17-year-old named Derrick Green shot one of Rubino's
friends in the leg. This prompted Rubino and another friend, Jon Tullis, to
break into the apartment, where a fight ensued. Green shot again, wounding
Tullis.

For this, Green was charged with terrorism with intent but found guilty
only of simple assault and sentenced to 30 days. The jury found that Tullis
was not involved in the fight, which earned him a conviction of
second-degree burglary and a 10-year sentence.

And Rubino--found to have participated in the fight--was convicted of
first-degree burglary: 25 years.

For what it's worth, Rubino's family says he's never been in trouble
before, was a good kid until he took a left turn at age 16, began to screw
up in school and eventually dropped out. Also for what it's worth, he's
said to have straightened up his act since then, finishing high school and
even beginning college while behind bars.

Not that I'm here to argue him--or the others--for sainthood. Nor, for that
matter, membership in Mensa. What they did was criminal and dumb. But 10
years seems an egregiously excessive penalty. And 25 years seems a sentence
that could only have been handed down from a courtroom in the "Twilight
Zone."

But that's where mandatory sentencing guidelines have led us. We used to
live by a valuable axiom: Let the punishment fit the crime. Now the
punishment fits only some politician's need to look tough on crime. Nor is
the Rubino case the only one.

Before November 1996, 21-year-old Jeff Berryhill of Estherville, Iowa, was
a college student with no criminal record. Then one drunken night he went
looking for his girlfriend, with whom he'd been arguing, and found her at
an apartment belonging to a male friend of hers. Berryhill kicked in the
door and ended up punching the friend in the face. Twenty-five years.

Then there's the case of Kemba Smith, a Connecticut college student with a
tangential involvement in a cocaine ring run by her physically abusive
boyfriend. She never sold drugs, never used drugs, never benefited from his
operation, had never been in trouble before. Yet when it all came crashing
down in 1993, she was given 25 years--no possibility of parole.

And I wonder: Is there anyone who reads these stories and comes away
thinking justice was served? Feels safer knowing these desperadoes have
been sentenced to spend a third of their lives behind bars?

Or do you feel instead the way you do when some 5-year-old is accused of
sexual harassment for kissing a classmate on the cheek? Do you feel, in
other words, that we're being strangled by regulations that are inflexible,
unfair and downright dumb?

We live under a tyranny of rules--one-size-fits-all laws that attempt to
remove from the equation the capacity for human error, human foibles, human
weakness.

But in the bargain, we've also lost any chance of human discretion, human
compassion, human brains.

If you think it's a fair trade, well . . . go kick a door in Iowa. I bet
that'll change your mind.

Checked-by: (Joel W. Johnson)