OVERCROWDING, DISPARITY AMONG JUDGES CAUSE GEORGIA TO RETHINK SENTENCING
GUIDELINES

Shirley Cummings' daughters wailed when the judge smacked their mother with
a five-year prison sentence for her first felony conviction.

"I was only up there five minutes. I didn't say anything. He didn't even
ask me anything," Ms. Cummings, 41, said recently in a conference room at
the Pulaski State Prison, where she now lives.

"All he said was: '19 grams of cocaine. $1,900. Five years,"' Ms. Cummings
said of Chief Judge William M. Fleming Jr., who sentenced her May 16 in
Richmond County Superior Court.

If Ms. Cummings lived elsewhere in Georgia, she might be out of jail,
reporting to a probation officer regularly. Even with one of the other
judges in the Augusta Judicial Circuit, she would have had an excellent
chance for probation.

Analysis of state data and data collected by The Augusta Chronicle from
January 2000 through July 30, 2003, show that the Augusta circuit's judges
send a higher percentage of people to prison than the state average - 35
percent in the Augusta circuit compared with 27 percent overall.

The fact that prison beds are filled not by the most violent but by those
who are geographically unlucky has raised a call for uniform sentencing
guidelines, and a commission studying the issue has recommended changes
that could be implemented within the next year. But it will probably be
money, or the lack of it, that will bring a change in the criminal justice
system. The state is running out of money, and spending $1.45 daily to hold
Ms. Cummings on probation would be cheaper than spending $52 a day to keep
her behind bars.

A new 1,000-bed prison would cost $52 million to build and $18 million per
year to operate. If the state's budget crisis continues into next year, as
appears likely, the Department of Corrections will have to close prisons.

SOME PEOPLE aren't rehabilitated by simple probation, Chief Judge Fleming
said. Some need a wake-up call that a short prison sentence can provide.

"'Dr. Cell' is a great teacher," the judge said.

He defended the prison term he gave Ms. Cummings.

"In my sentencing, I would say she was selling. She's in the cocaine
business," Judge Fleming said. She might have pleaded guilty to a reduced
charge of possession of cocaine, but the judge said he doesn't think she
had 19 grams, a little more than half an ounce, for personal use.

Judge Fleming gave prison terms to 50 percent of the people he has
sentenced in 3 1/2 years. The other judges in the circuit imposed prison
sentences in about one-third of the cases they sentenced.

"I might be less tolerant of crime than other judges," Judge Fleming said.
But, he added, he gives shorter prison sentences than other judges, and The
Chronicle's analysis supports this.

Still, the prison sentences given by Judge Fleming and the other judges in
the Augusta Judicial Circuit are longer than those imposed in other Georgia
communities of similar size. Commit a burglary in the Augusta circuit, and
you have a pretty even shot at prison or probation, and if it's prison you
might spend the next decade in a cell, according to state data. Do the same
in Gwinnett County, and your chances of getting a prison sentence drop to
26 percent. And you'll do four years less than in Augusta.

DISPARITY IN sentencing patterns among Georgia judges reveals itself year
after year in the data collected by the state's Department of Corrections.
And the state prison system doesn't have enough beds or money to build more
prisons. One possible solution is sentencing guidelines.

The most extensive report on guidelines, A Sentencing System for the 21st
Century, was prepared by the Governor's Commission on Certainty in
Sentencing and came out in December. Under the proposed guidelines, prisons
would be filled with violent criminals rather than drug and property
offenders, who make up most of the inmate population now.

Nearly everyone passing through Richmond County Superior Court could expect
shorter sentences under the proposed guidelines.

Many people, including those on the sentencing commission, thought the
issue died after Gov. Sonny Perdue beat Roy Barnes and sent commission
members home.

With the state slashing services in an attempt to stay out of the red,
however, the sentencing report Mr. Perdue inherited from the Barnes
administration is looking more attractive. Two sources speaking on
condition of anonymity said plans are in the works to start adopting
sentencing guidelines.

"I know it's going to be an election year, and everyone wants to be tough
on crime," said Clayton Judicial Circuit District Attorney Robert Keller,
who served as a co-chairman of the sentencing commission. But, he said,
there might be better ways to protect communities than locking up so many
people.

"I think we need to start on the same playing field," Mr. Keller said.

Taking the state average for all criminal offenses, the commission
suggested a sentencing range for each crime. Judges would be able to
consider certain factors in deciding whether to increase or lower sentences.

BUT IT'S NOT that simple, Judge J. Carlisle Overstreet said. He has been
explaining that since Mr. Barnes took office and called him and several
other judges to Atlanta.

"He said we've got to do something about the sentencing guidelines because
(prison costs are) killing us financially," Judge Overstreet said.

For guidelines to work, four things must happen, Judge Overstreet said.

First, he said, the executive branch, through the parole board, has to set
the level for percent of time served.

"You can't tell us they're going to do 100 percent and they do 50 percent,"
he said.

Second, the Legislature has to get out of the judging business - remove the
mandatory minimum sentencing now in place.

Third, the Legislature has to fund alternatives to prison - more
probationary services, job training, and mental health and drug treatment.

"If the purpose is to take nonviolent offenders out of prisons and
rehabilitate them, you've got to have the services to do that," Judge
Overstreet said.

Last, someone needs to come up with better guidelines, he said. Right now
they are too vague.

"I don't mind guidelines that specifically say what a person is to serve,"
the judge said. "You've got to give us the other three legs of that stool
before you push us up on it and it falls over, because it will."

The guidelines are designed to reduce prison sentences, and if the grand
experiment fails, the judges will be blamed and labeled "soft on crime,"
Judge Overstreet said.

"From a political standpoint, I don't want to take the heat of it if the
state isn't going to fund it," he said.

JUDGE FLEMING said he's fine with the idea of guidelines, if they are more
specific than what the sentencing commission developed. But, he said, the
Legislature, not the judges, should establish guidelines if the purpose is
to reduce sentences and build equality in sentencing throughout the state.

Sentencing disparity is wrong and unfair, Judge Fleming said.

"If we both commit house burglary and you get 10 years and I get a two-year
sentence, then something's wrong."

Then something is wrong. Among judicial circuits of similar size, only the
Macon and Savannah circuits give longer prison sentences than the Augusta
Judicial Circuit. Only in Savannah do judges send a greater percentage of
people to prison.

As the sentencing commission noted in its December report, sentencing
patterns vary even within the same judicial circuit.

In Richmond County, a comparison of the judges' sentencing patterns reveals
striking differences, The Chronicle's analysis of more than 4,000 cases
shows. For example, while Judge Overstreet imposed prison sentences on
shoplifters 22 percent of the time, Judge Fleming sent 58 percent of
shoplifters he sentenced to prison.

Rome Judicial Circuit Judge Walter J. Matthews, co-chairman with Mr. Keller
of the sentencing commission, said the looming crisis in corrections
shouldn't lie at the judges' feet. The Legislature passed laws requiring
mandatory minimum 10-year sentences for seven crimes and life sentences in
certain cases, and the parole board instituted a policy requiring those
convicted of more crimes to serve at least 90 percent of their sentences,
Judge Matthews said.

"There's the bulk of overcrowding," he said. "That wasn't the judges' doing."

The mandatory minimums are swelling the prison population now, said Brian
Owens, executive assistant to the commissioner of the Department of
Corrections. Before the law changed in January 1995, inmates convicted of
the most serious, violent crimes served an average of seven years. Now they
average 17 years, Mr. Owens said. The number of inmates who commit those
crimes is about the same now as a decade ago, but they stay longer.

"I don't think anyone disagrees that a violent criminal needs to go to
prison for a long time," Mr. Owens said. But when corrections is the No. 1
growth industry in the state and Georgia has the sixth-largest prison
population in the nation, according to the Department of Justice, it may be
time to look at the system.

"There needs to be some awareness of the disparity in sentencing. Murderers
can get less time than he did," Ms. Jones said.

Her 21-year-old son had never been charged with anything more serious than
a traffic ticket, court records reveal. But on the night of Oct. 3, 2000,
he and Reginald C. Harris, an unemployed 23-year-old with two prior felony
offenses, tried to force Michael Warner Jr. to tell them where a drug
dealer lived so they could rob him. Mr. Warner had no idea. He was beaten
and shot. Mr. Harris and Mr. Morgan were arrested, tried and convicted of
armed robbery, burglary, kidnapping with bodily injury and a weapon charge.
Both were sentenced to a mandatory minimum sentence of life plus five years
by Judge Fleming.

Sometimes Ms. Jones can't even bear to look at her son's photographs.

"I feel so lost at times I don't know what to do," she said. "Sometimes he
gets so discouraged. I try not to let him see me when I'm weak because I
know I have to stay strong for him.

"Whatever part he had in it, he should have been given some time, but given
a fair sentence," Ms. Jones said, wiping tears from her face.

Judge Fleming had no choice but to impose life for the kidnapping plus five
years for the weapon charge, however. The mandatory minimum sentence her
son and Mr. Harris got didn't allow the judge to consider their age, family
support, employment, a sincere effort to stay straight, education or prior
record - all factors good judges consider, said Larry A. Hammond, of
Phoenix, a trial lawyer who sits on the board of the American Judicature
Society.

SENTENCING GUIDELINES might work if the mandatory minimums were removed, he
said.

"That takes (sentencing) out of the hands of politicians," Mr. Hammond said.

Mandatory minimums are despised by most judges, said Allan Sobel, the
director of the American Judicature Society. They limit judicial
independence, for one thing, he said.

"Guidelines can offer more consistency. Most people would agree that's a
good thing," he said. It's not only unfair for one person to get a longer
sentence than another person for the same crime, but it also builds
distrust of the justice system, Mr. Sobel said.

Ms. Cummings said that the women she has met behind bars don't believe her
when she says she got five years in prison for a first-time cocaine
possession charge.

"Ninety percent of the women I meet here were on probation before. I met a
woman the other day who had four felony busts and got probation four times.
Why would you send me (to prison)?"

Take the case of Kevin Hall. Mr. Hall, who broke into an apartment and
started a fire, had prior felony convictions but received probation. So did
a lot of people pleading guilty to violent crimes, even some with records.

Ms. Cummings said that other inmates are amazed that she, a mother of three
teenage daughters who is recovering from a stroke and heart problems, is
calm and quietly serving her sentence. She has to be, she said, because she
doesn't want to suffer another stroke, and, left unsaid, die behind bars.