The voters of the city of Washington will decide Tuesday whether to punish their mayor politically for his misconduct. But a federal judge has decided already to punish the mayor under the law for being a bad example in office -- and, most significantly, to punish him even for crimes of which he was not convicted.
The six-month jail sentence imposed on Marion S. Barry Jr. at the end of his drug crimes trial is stirring a debate that may linger well beyond Tuesday. Even if the mayor is defeated in his bid for a City Council seat and departs from public life (at least for the time being), Mr. Barry will be keeping alive the issue of his sentence.
His grievance, in some respects at least, raises fundamental questions about criminal sentencing of public officials for violating their "public trust" when the crimes in which they engaged (or were accused of engaging) were not crimes that only a public official can commit.
There would be little, perhaps nothing, to debate about Mayor Barry's getting a stiff sentence if he had been convicted of XTC taking bribes as mayor, or if he had been convicted of illegally sending city business to his friends. Those are public corruption charges, predicated upon the fact that an official broke the law in the very performance of his office, and very few citizens would think there was something wrong with a jail sentence for that.
It bears repeating, however, that Marion Barry was not convicted of any such crimes. A grand jury has looked long and hard at the Barry administration and has yet to accuse him of any corrupt acts, and it may never do so. All the accusations that were leveled were for possessing illegal drugs or for lying to a grand juryinvestigating his personal drug habits and dealings. Those are crimes anyone could commit.
Still, because Mr. Barry was mayor at the time of the incidents leading to those accusations, they seemed to have been transformed into crimes of public corruption. If one looks up those crimes in the statute books, the language of what is outlawed there is the same no matter who may be accused of violating them. But the Barry case has reminded everyone anew that one's status does count when it comes to the sentence.
That, of course, is nothing new: It is a long-standing tradition that judges, in fixing sentences, have tried to make the punishment fit the individual as well as the crime.
But there is a special irony when judges use the public office of a convicted individual as an overwhelmingly important -- indeed, decisive -- factor in sentencing for ordinary crimes.
Consider the Barry case: He was reminded throughout that he was not above the law, that he would have to answer for his crimes just as anyone would -- and yet, his sentence was stiffer than someone not in public office would have received.
Mr. Barry has cried foul, for a variety of reasons, because he got a six-month prison sentence after being convicted of one count of possessing cocaine. He is upset partly because he thinks that it was a racist sentence, that a white person would not have been given jail time for the same crime. He is complaining partly because, as a first offender, he probably was entitled to assume that his sentence for a misdemeanor would not include jail.
Whatever is true or false about those complaints, they are of a different order than his grievances over being punished as he was simply because he was the mayor.
There does not even seem to be a dispute that that was what happened. The prosecutors expressly asked the judge to give Mr. Barry the maximum sentence of one year in prison because he had "abused the public trust" as mayor.
And Judge Thomas Penfield Jackson, while not giving Mayor Barry the maximum, did give a jail sentence of six months largely on that basis. "Of greatest significance to me in sentencing this defendant," the judge said, "is the high public office he has at all relevant times occupied."
Said the judge further: "His breach of public trust alone warrants an enhanced sentence. . . . Having failed as the good example he might have been to the citizens of Washington, D.C. -- and, in particular, to the young who are so much more likely to respond to example than to admonition -- the defendant must now become an example of another kind."
One supposes, of course, that those are the kinds of thoughts that are going through the minds of the city's voters as they prepare to vote this week on Mr. Barry, who is running as a City Council candidate. But it is not as obvious that that is the stuff of proper criminal sentencing. It is at least debatable whether the -- punishment for crime should vary with one's station in life; at a minimum, that raises questions of equality under the law.
Congress could have made it explicitly a crime for the highest officials of the city of Washington to obtain cocaine, but it has not yet done so. The Barry case may set a precedent to that effect, simply by judicial decree.