(already subscribe? log in).

If sentences vary too widely, courts should make corrections

EDITORIAL | Editorial

THIS STORY APPEARED IN

December 25, 2011

Joseph Donovan in 2009. (File/The Boston Globe )

JOSEPH DONOVAN has served 18 years in prison for his role in the 1992 stabbing murder of Yngve Raustein, an MIT student from Norway. Donovan has had time to evaluate, change, and come to terms with his actions. The question is whether the justice system is capable of similar reflection.

Donovan didn’t kill Raustein. No one disputes that fact. The killer — Shon McHugh — stabbed Raustein in what can only be described as a thrill kill. But McHugh was a juvenile at the time, and the justice system saw fit to release him from prison in 2003 after he served just 11 years. Donovan, meanwhile, is serving a life sentence without the possibility of parole for having instigated the assault that led to the murder. The disparity of these sentences gnaws at many observers all the more because Donovan had turned 17 — the age of adulthood for criminal law purposes — just a few weeks before the crime. But for that handful of days, he would have been freed long ago.

Donovan, now 36, is not a victim of a wrongful conviction. Nor is his sentence an egregious miscarriage of justice. But he is an example of how a combination of bad luck, poor legal advice, and mandatory sentencing can bring about grossly disproportionate results. Governor Patrick could correct the imbalance by commuting Donovan’s sentence. But many people would reserve commutation for more extreme cases.

A better option for Donovan and, potentially, for others caught in similar situations would be for prosecutors and judges of Middlesex County to review the case with an eye toward reducing the sentence, which would at least give Donovan a chance to apply for parole. There is a special rule of criminal procedure - 25 (b)(2) - that allows judges to substitute a reduced charge in place of the jury’s verdict, even years later.

This rule hasn’t been used frequently. But judges in Massachusetts can and should intervene if they believe that a punishment is disproportionate to the weight of the evidence. Far better for the courts themselves to review disproportionate sentences than to rely on the governor to commute sentences. Those who go to work in the legal system every day know which sentences are appropriate - and which are more accidents of fate.

…