MANDATORY UNFAIRNESS IN COURT

THE SENTENCING guidelines recently enacted by the Massachusetts House leave
too much power in the hands of prosecutors. While some limitations on
judicial discretion are appropriate, judges by virtue of their role are
supposed to bring balance and fairness to the adversary process.

No one would suggest that defense attorneys should have the upper hand in
sentencing decisions. Their role is to obtain leniency for their clients. By
the same token, prosecutors seek to convict and punish. It is a process of
controlled conflict atop which sits the judge, who is charged with assuring
fairness. It is often a delicate balancing act as the contending adversaries
argue their respective positions.

At sentencing, a judge balances the community's interest in punishment and
deterrence against the defendant's interest in compassion and mitigation.
While more often than not a sensible balance is struck, occasionally a judge
faces public criticism for being too lenient (almost never for being too
harsh).

Sentencing guidelines are themselves a statutory attempt to balance those
same interests by establishing parameters within which a judge is required
to sentence unless there are unusual circumstances that would warrant a
departure. A decision to sentence above or below the guidelines must be
reduced to writing and may be appealed by the aggrieved party.

Relief from some of the harsh consequences of mandatory sentences was a
principal feature of the bill proposed by the commission that wrote the
guidelines. Judges were unable to factor mitigating circumstances into
mandatory sentences that, given all the circumstances, sometimes seemed
harsh and inappropriate. The many variables that often go into a sentencing
had to be ignored.

Now judges are often forced to plead with prosecutors to reduce a mandatory
offense to a nonmandatory offense in order to avoid an ''unfair'' sentence.
Sometimes prosecutors will agree that the consequences are too harsh, but
they are bound by ''office policy'' or the decision of a remote supervisor
who would not consent to a reduction.

In effect, the sentencing decision was being made by the prosecution.
Prosecutors would decide if and when a judge could exercise compassion.
Also, the threat of a mandatory sentence could be used to force a defendant
to plead guilty to a dubious lesser offense for fear of the consequences. If
judges occasionally abused their sentencing authority, zealous prosecutors
have misused their power to charge.

The House bill is an amended version of the commission's recommendations. It
places serious obstacles in the path of a judge who wishes to sentence below
the mandatory minimum requirements. Real mitigating circumstances were
replaced by preconditions that a defendant must meet before becoming
eligible for a lesser sentence, and the lesser sentence would often also
have to be jail time rather than strict probation, including home
confinement.

There are sad cases wherein a defendant deserves compassion and could just
as easily be punished and ''rehabilitated'' on probation. In fact, jail time
is costly and can be counterproductive, turning someone who was ignorant,
misguided, and foolish into a bitter and hardened criminal.

What about the drug-addicted single mother of two who sells drugs out of her
apartment to support her habit, or the special-needs student selling on the
street whose father is in jail and whose mother is an alcoholic, or the
college student distributing ''ecstasy'' at a downtown nightclub? They are
all likely operating in a school zone (within 1,000 feet of a school) and if
convicted face a two-year minimum mandatory sentence.

Have the harsh sentences worked? I was a judge from 1974 to 2000, and I say
no! If anything, drugs are more plentiful and cheaper now than they were 15
years ago. Recent developments will also result in federal resources being
diverted from drug interdiction efforts to the war on terrorism. Less time,
effort, and money will be spent on the ''drug war'' as we focus on national
security issues.

Even when it was the nation's top priority, harsh measures failed to win the
''drug war'' or stop the flow of drugs into this country. Perhaps it is time
to focus on rehabilitation as the most sensible, practical, and
compassionate way to deal with the problem.

When will we recognize that throwing low-level sellers (who themselves are
often users) into jail hasn't worked? They are the ones who get caught
because they're an easy ''pinch.'' Any drug control officer worth his/her
salt in a relatively short time is going to know where and by whom drugs are
being sold in an area. After all, it is a commercial enterprise, and the
signs are pretty obvious.

The bill enacted by the House, while offered as a reform, fails to break out
of the mind-set that established the mandatory minimums, which have proved
so ineffective. The old ''war on drugs'' has been lost. It was lost before
Sept. 11, 2001, and now, because we lack the capacity to fight a two-front
war, we can change our strategy without losing face. Instead, we should be
campaigning against addiction and for rehabilitation. School antidrug
programs should be strengthened, and courts can be an effective force in
mandating treatment, as recently developed ''drug courts'' have
demonstrated.

It is the smarter, cheaper, and more compassionate way of dealing with what
is first and foremost a national health problem. It is also the most
merciful way to deal with many who get caught in the drug cycle. Mercy is
not a bad thing; I, for one, expect that I may need it someday and hope the
Good Lord has it in plentiful supply.