Criminal Justice: The Sentencing Mess

In Brooklyn last March, two young thugs named Kazle Anthony and Stephen Batten forced three butchers into a walk-in icebox, robbed them of $3,500, shot each of them in the head twice, and finished them off with meat cleavers. After a jury convicted them of first-degree murder, Justice David L. Malbin called the killers' crime "one of the most atrocious in this country."

Shortly before the thugs were tried, however, New York had abolished the death penalty for all but police killers. As a result, Justice Malbin sentenced the killers to life imprisonment—then angrily noted that they will be eligible for parole in 26½ years. Worse, said Malbin, "there is a paradox in the law": had their victims lived, the men could each have been handed 120 years in consecutive sentences for assault and robbery—and not been eligible for parole for 40 years. "I'm not a tough guy," said the judge, "but when a man kills three people, I believe he has forfeited his right to life in society."

Criminal-law experts have faulted Malbin for disregarding the fact that lifers are paroled by parole boards only if they deserve it. Under a forthcoming (1967) change in New York law, the critics added, thugs whose victims survive would be eligible for parole in 8½ rather than 40 years. Despite such objections, though, Malbin's basic point is sound; across the country, sentencing is an illogical mess.

Amazing Disparities. In theory, U.S. penology long ago shifted from revenge to rehabilitation. Yet the U.S. is apparently the only country where a sentence of 120 years is even conceivable. "Our criminal laws are the most severe in the world," says former U.S. Prisons Director James V. Bennett, "and our legislatures are still at work making them more severe."

As one result, amazing disparities exist between states. The time served for homicide in Texas is usually about 5½ years, in Illinois 16½ years. The maximum sentence for inducing abortion ranges from one year in Kansas to 20 years in Mississippi. For statutory rape, a man can get a $500 fine in Maine, ten years in New York, 50 years in California, 99 years in New Mexico, and death in Delaware.

No responsible critic argues that all 50 states can or should have uniform sentences. Cattle rustling, for example, is obviously more antisocial in Texas than in Connecticut. Even so, astonishing inequities also exist within the laws of a single state. In California, a boy who breaks into a car and rifles the glove compartment can get up to 15 years; for stealing the whole car, he gets no more than ten years. In Colorado, dog stealing is punishable by ten years; dog killing, by six months and a $500 fine. In Minnesota, the maximum sentence for "carnal knowledge" of a girl aged 14 to 18 is seven years—compared with 20 years for the same crime with "any animal or bird."

A Michigan man faces ten years for possessing burglary tools, but only five for using them. In North Carolina, a housebreaker who slips through a partly opened door can get ten years; a burglar who personally opens the same door another inch faces death. Even federal income tax raps seem out of whack: the maximum for falsifying a return is five years compared with one year for not filing at all.