Sentencing now cruel, unusual

August 11, 1998|By Leonard Pitts Jr.

I DON'T know Gabriel Rubino. Don't know if he's hell on two legs or if he is, as friends and family say, a mostly good kid who did a single stupid thing.

What I do know, from reading newspaper accounts, is that this 19-year-old from Waterloo, Iowa, is serving a 25-year jail term for kicking down a door. What I do know is that justice has not been served.

Unless, of course, your idea of justice happens to fall on the Draconian side.

Otherwise, I think you'd have to agree that Gabriel Rubino is a victim of the trend toward mandatory sentencing guidelines that began during the anti-drug crusades of the Reagan years and grew out of a widespread belief that some judges were too lenient on crime.

No judicial discretion

The result, however, has been slowly to rob judges of discretion, which is what happened in this case. The judge's hands were tied. He had no leeway to impose a less severe punishment.

Here's what happened: One night, about 18 months ago, Rubino, then 17, and some friends threw beer bottles at the window of an apartment where a party was in progress. This, in escalation of an continuing dispute. From inside the building, a 17-year-old named Derrick Green shot one of Rubino's friends in the leg. This prompted Rubino and another friend, Jon Tullis, to break into the apartment, where a fight ensued. Green shot again, wounding Mr. Tullis.

For this, Green was charged with terrorism with intent but found guilty only of simple assault and sentenced to 30 days. The jury found that Tullis was not involved in the fight, which earned him a conviction of second-degree burglary and a 10-year sentence.

And Rubino -- found to have participated in the fight -- was convicted of first-degree burglary: 25 years.

For what it's worth, Rubino's family says he's never been in trouble before, was a good kid until he took a left turn at age 16, began to have problems in school and eventually dropped out. Also for what it's worth, he's said to have straightened up his act since then, finishing high school and even beginning college while behind bars.

Not that I'm here to argue him -- or the others -- for sainthood. Nor, for that matter, membership in Mensa. What they did was criminal and dumb. But 10 years seems an egregiously excessive penalty. And 25 years seems a sentence that could only have been handed down from a courtroom in the "Twilight Zone."

But that's where mandatory sentencing guidelines have led us. We used to live by a valuable axiom: Let the punishment fit the crime. Now the punishment fits only some politician's need to look tough on crime. Nor is the Rubino case the only one.

Before November 1996, 21-year-old Jeff Berryhill of Estherville, Iowa, was a college student with no criminal record. Then one drunken night he went looking for his girlfriend, with whom he'd been arguing, and found her at an apartment belonging to a male friend of hers. Berryhill kicked in the door and ended up punching the friend in the face. Twenty-five years.

Drug dealer's friend

Then there's the case of Kemba Smith, a Connecticut college student with a tangential involvement in a cocaine ring run by her physically abusive boyfriend. She never sold drugs, never used drugs, never benefited from his operation, had never been in trouble before. Yet when it all came crashing down in 1993, she was given 25 years -- no possibility of parole.

And I wonder: Is there anyone who reads these stories and comes away thinking justice was served? Feels safer knowing these desperadoes have been sentenced to spend a third of their lives behind bars?

Or do you feel instead the way you do when some 5-year-old is accused of sexual harassment for kissing a classmate on the cheek? Do you feel, in other words, that we're being strangled by regulations that are inflexible, unfair and downright dumb?

We live under a tyranny of rules -- one-size-fits-all laws that attempt to remove from the equation the capacity for human error, human foibles, human weakness.

But in the bargain, we've also lost any chance of human discretion, human compassion, human brains.

If you think it's a fair trade, well . . . go kick a door in Iowa. I bet that'll change your mind.

Leonard Pitts is a columnist for the Miami Herald.

Pub Date: 8/11/98

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