JUDGES in 18th-century England favored two forms of sentence for criminals: capital punishment and banishment to prison colonies, some of which are now sovereign states of this Union. Hanging was the fixed penalty for some 200 crimes, but in fact last-minute pardons were the rule in all but the most heinous cases. A recent study by University of Wisconsin Prof. Malcolm Feeley points out that while these two choices of penalty would appear to hamstring courts, they really offered an opportunity for great flexibility since pardons were so freely given. They also offered an opportunity for great disparity because offenders were subject to an all-or-nothing judgment by individual magistrates.

Reforms in the last century brought about fixed and varying sentences for different crimes, followed in this century by a return to greater flexibility and discretion being given to judges and parole boards. Now we seem to be completing a cycle once again. Disillusioned with notions of rehabilitation and indeterminate sentences, the courts are returning to more orderly, predictable and uniform sentences for similar crimes. Maryland is about to adopt a system of guidelines for judges that reflect current sentencing practices and make it possible for a judge to construct a sentence that takes into consideration a number of factors about the crime and the offender himself. The result, it is hoped, will be more uniform sentences imposed on those with similar backgrounds convicted of similar crimes.

Chief Judge H. Carl Moultrie I of the D.C. Superior Court thinks it's time to take another look at sentencing disparity in this city's courts, and he's right. If our criminal courts are like those of most jurisdictions, we will probably learn that some judges sentence more severely than others for the same crime; some attach great weight to prior records and others want to know about the impact on the victim. Many jurists are concerned about rehabilitation, employment disruption and family support systems while others believe deterrence should be the primary goal of sentencing. Judge Moultrie's study will tell us what judges are actually doing and why. The next logical step is to formalize standards by issuing sentencing guidelines. The public, the bar and the judges themselves would welcome such a step.