Of Jean Harris it could be said that she will stay in jail not because she killed her lover, but because she killed him in the wrong state. Had she done it in Virginia, a state where human beings are sacred second to horses, she might today be a free woman -- a threat, probably, to nobody, and considered punished quite enough already.

It was in Virginia, after all, that Theodore C. Gregory, under circumstances not all that much different than Harris's, killed his estranged wife's lover and suffered the extreme penalty of having to pay a $1,000 fine. Only the people at the court and at American Express know if he used his credit card, but suffice it to say that Gregory is now a free man and his wife's lover is deep in the ground.

Somewhat the same circumstances applied in the Harris case. The former Madeira School headmistress was, of course, a Virginia resident -- the state where the school is located. Like Gregory, she was scorned, in her case replaced by another, younger woman. Like Gregory, she was in quite a state -- humiliated, jealous, in a rage. Unlike Gregory, Harris had to leave the state. She went to Scarsdale, N.Y., where she killed her lover, Dr. Herman Tarnower. Change of venue was her biggest mistake.

There are, of course, other differences between the two cases. But on the basics, they are the same. Two men are dead, two people were convicted, only one of them is free and the other, Harris, has to spend what will probably be the rest of her life in jail. She is 59 years old and serving a mandatory 15-year sentence.

Students of American jurisprudence can probably cite numerous other cases to prove how capricious sentencing can be. The system almost guarantees it. Despite what you might be hearing from politicians, murder is a crime usually tried in state courts. Every state has its own system, its own laws, and its own sentencing procedures. The upshot is that a murder that can get you the chair in one state will get you a stiff fine in another.

But there is a further point to make, and that is about this business of mandatory sentences. It is all the rage at the moment, with politicians telling people that if only criminals knew with certainty what their sentence would be, they would not commit any crimes. The public nods its head to that, apparently not considering for a moment that many criminals simply do not think that they will be caught -- or do not care.

That, in fact, was the case with both Harris and Gregory. Neither one set out to commit the perfect murder. Having done their killings, they made no effort to either escape or cover up the crime. These were both crimes of passion, commited under circumstances that for the people involved were unique. No matter what you might think of Gregory, no one is staying out of Virginia because he is free and no one would stay out of New York if Harris walked out of jail tomorrow.

But she cannot. And the reason is that her sentence is mandatory. Neither the judge nor the jury nor the court of appeals nor, for that matter, the parole board, can reduce it. It does not matter that she poses no danger to society. It does not matter that she has already been punished. It does not matter that her circumstances were unique and it does not matter, either, that she can not in the usual sense be rehabilitated. Her continued imprisonment serves no purpose.

No matter. The law is the law and Harris is stuck with it. It is imposed as if it were an act of God, immutable, wise unto itself -- something no person can second-guess even though in this case it is inappropriate and unjust. It will stop no one from committing a similar crime of passion. It will only stop Harris from getting out of jail.

As ludicrous as the Gregory sentence was, it was at least imposed by a jury -- and not by a legislature considering crime in the abstract. The Gregory jury listened to the testimony and judged the man. The Harris jury judged only the crime. For that reason Jean Harris, a threat to no one, remains behind bars -- an expense to the state, a waste of a life and a rebuke to the principle of equal justice under law.