Lack of options

TWO things about sentencing give me trouble,'' the judge was saying: ``How much to give 'em and where to send 'em. And it's the second that bothers me most.'' The courts have no responsibility for the construction and management of prisons (excluding occasional litigation over living conditions). But a judge must consider the nature of the places to which the guilty are sentenced.

Whenever the law allows judicial discretion as to a defendant's destination, the judge has to weigh the difference not just between two institutions, but between two grades of punishment. Because judges are engaged in determining appropriate confinement for human beings, not consigning iron ore to steel mills, the nature of the ultimate institution is a primary concern.

It is easy to say, as some prosecutors and commentators do, that the ``same crimes mean equal times.'' Unfortunately, criminals are not interchangeable; nor are the crimes. A professional mugger is not the same as a drug addict's purse-snatching. Yet both are classed as unarmed robbery, and both are punishable (in Massachusetts) by life imprisonment.

What is the correct sentence when a person with a record of past convictions for violent crimes breaks the law in a nonviolent way? How about the nonviolent person who happens to commit a violent crime?

The traditional penitentiary or state prison suffices for the violent or the incorrigible. But other humans, whom judges see more frequently, need something different.

The drug user: Every judge faces the task of ordering appropriate incarceration for a defendant who has committed a housebreak, or a robbery, solely to support a drug habit. The defendant -- usually male -- is not violent; he does not pose a physical threat to anyone.

This is not to say that housebreaking and muggings are pleasant or even tolerable. The man's lack of inherent violence does mean, however, that any sentencing decision should rest not on the need to keep him off the streets, but rather on the need to punish him.

But punishment is not likely to change his behavior. Even in a state with ``tough'' laws, he will probably be parole-eligible in three or four years and hopefully without a worse drug habit than when the bars clanged shut.

What we need for him is an institution that combines locked-gate security with concentrated treatment. Rehabilitation centers do not suffice. Such centers are fine for anyone actively seeking a cure, but legally they cannot physically prevent residents from deciding that they'd just as soon be somewhere else. We want something with the medico-psychological facilities of a drug-dependency clinic and the locked-gate security of a prison.

The nonviolent serious offender: We also need a place to house offenders who have committed significant offenses, meriting lengthy deprivation of liberty, but who do not pose the kind of threat requiring the environment that one normally finds in a state penitentiary.

A subclass of this category is the child-molester, usually an adult male. He poses a risk to children, does not threaten adults, and frequently is not a proper candidate for a mental institution, penal or otherwise.

Put this man in an ordinary prison environment and you automatically condemn him either to constant intense physical danger from other inmates, or to the prison-within-a-prison of ``protective custody.''

The young serious offender: With increasing frequency, judges are having to sentence teen-agers or early-20s who have committed deadly crimes. If a youngster kills someone, even if the judge can be morally certain the act will never be repeated, the very nature of the deed demands heavy punishment.

But an incarcerated youngster is a particular target. Should the mandatory life-without-parole include the certainty of rape and brutalization from fellow inmates?

That, some think, is the convict's problem: ``If you can't handle the time, don't commit the crime.''

The judge, though, sees it less clearly. What happens to the defendant depends not just on the amount of time a judge sentences, but on where the convict is sent. And the lack of options does not ease either the choice or the judicial conscience.

Hiller B. Zobel sits on the Massachusetts Superior Court.