Justice by the numbers; mandatory sentencing drove me from the bench.

• Author: Forer, Lois G.

Michael S. would have been one of the more than 600,000 incarcerated persons in the United States. He would have been a statistic, yet another addition to a clogged criminal justice system. But he's not--in part because to me Michael was a human being: a slight 24-year-old with a young wife and small daughter. Not that I freed him; I tried him and found him guilty. He is free now only because he is a fugitive. I have not seen him since the day of his sentencing in 1984, yet since that day our lives have been inextricably connected. Because of his case I retired from the bench.

Michael's case appeared rountine. He was a typical offender: young, black, and male, a high-school dropout without a job. The charge was an insignificant holdup that occasioned no comment in the press. And the trial itself was, in the busy life of a judge, a run-of-the-mill event.

The year before, Michael, brandishing a toy gun, held up a taxi and took $50 from the driver and the passenger, harming neither. This was Michael's first offense. Although he had dropped out of school to marry his pregnant girlfriend, Michael later obtained a high school equivalency diploma. He had been steadily employed, earning enough to send his daughter to parochial school--a considerable sacrifice for him and his wife. Shortly before the holdup, Michael had lost his job. Despondent because he could not support his family, he went out on a Saturday night, had more than a few drinks, and then robbed the taxi.

There was no doubt that Michael was guilty. But the penalty posed problems. To me, a robbery in a taxi is not an intrinsically graver offense than a robbery in an alley, but to the Pennsylvania legislature, it is. Because the holdup occurred on public transportation, it fell within the ambit of the state's mandatory sentencing law--which required a minimum sentence of five years in the state pentitentiary. In Pennsylvania, a prosecutor may decide not to demand imposition of that law, but Michael's prosecuting attorney wanted the five-year sentence.

One might argue that a five-year sentence for a $50 robbery is excessive or even immoral, but to a judge, those arguments are necessarily irrelevant. He or she has agreed to enforce the law, no matter how ill-advised, unless the law is unconstitutional.

I believed the mandatory sentencing law was, and like many of my colleagues I had held it unconstitutional in several other cases for several reasons. We agreed that it violates the constitutional principle of separation of powers because it can be invoked by the prosecutor, and not by the judge. In addition, the act is arbitrary and capricious in its application. Robbery, which is often a simple purse snatching, is covered, but not child molestation or incest, two of society's most damaging offenses. Nor can a defendant's previous record or mental state be considered. A hardened repeat offender receives the same sentence as a retarded man who steals out of hunger. Those facts violate the fundamental Anglo-American legal principles of individualized sentencing and proportionality of the penalty to the crime.

Thus in Michael's case, I again held the statute to be unconstitutional and turned to the sentencing guidelines--a state statute designed to give uniform setences to offenders who commit similar crimes. The minimum sentences prescribed by the guidelines was 24 months.

A judge can deviate from the prescribed sentence if he or she writes an opinion explaining the reasons for the deviation. While this sounds reasonable in theory, "downwardly departing" from the guidelines is extremely difficult. The mitigating circumstances that influence most judges are not included in the limited list of factors on which "presumptive" sentence is based--that an offender is a caretaker of small children; that the offender is mentally retarded; or that the offender, like Michael, is emotionally distraught.

So I decided to deviate from the guidelines, sentencing Michael to 11-and-a-half months in the county jail and permitting him to work outside the prison during the day to support his family. I also imposed a sentence of two years' probation following his imprisonment conditioned upon repayment of the $50. My rationale for the lsser penalty, outlined in my lengthy opinion, was that this was a first offense, no one was harmed, Michael eacted under the pressures of unemployment and need, and he seemed truly contrite. He had never committed a violent act and posed no danger to the public. A sentence of close to a year seemed adequate to convince Michael of the seriousness of his crime. Nevertheless, the prosecutor appealed.

Michael returned to his family, obtained steady employment, and repaid the victims of his crime. I thought no more about Michael until 1986, when the state supreme court upheld the appeal and ordered me to resentence him to a minimum of five years in the state penitentiary. By this time Michael had successfully completed his term of imprisonment and probation, including payment of restitution. I checked Michael's record. He had not been rearrested.

I was faced with a legal and moral dilemman. As a judge I had sworn to uphold...