Racial Injustice?

U.S. District Judge Thomas Penfield Jackson was not impressed with Washington Mayor Marion Barry's last-minute contrition. On Oct. 26, Jackson sentenced him to six months in prison and a $5,000 fine for a cocaine- possession misdemeanor. Having failed to provide a "good example" in the city's highest post, said the judge, Barry "must now become an example of another kind." Last week Jackson hinted that he may have had more controversial motives for handing down what the mayor claims is stiff punishment.

Speaking at Harvard Law School, Jackson lashed out against four unnamed jurors, accusing them of following their own "agendas" and refusing "under any circumstances" to convict Barry of more serious crimes. In August the entire panel acquitted the mayor of one charge and deadlocked on 12 others. But Jackson said he had "never seen a stronger government case."

Jackson's remarks gave a new thrust to the mayor's claim that his prosecution was racially motivated. "I understand that there are different sets of standards for different people, and that's the American injustice system," Barry declared after his sentencing. What lends credence to Barry's charge is the leniency shown to other politically prominent defendants who happen to be white. Oliver North escaped a prison sentence for his three $ felony convictions in 1989, since overturned. Reagan insider Michael Deaver also avoided jail two years ago. Deaver, who could have been given up to 15 years for felony perjury following his influence-peddling trial, received a $100,000 fine and 1,500 hours of community service from his sentencing judge: Thomas Penfield Jackson.

Jackson maintains that unlike Barry, Deaver was not a public official when he committed his crimes and that this accounts for the difference. But many experts find the disparity troubling. Says American University law professor Herman Schwartz: "Jackson gives Deaver, who was tampering with the Constitution, community service while he gives Barry hard time for being a coke head." To many observers, the real problem is not that Barry's sentence was too harsh -- he could have been imprisoned for up to a year -- but that North, Deaver and others got off too lightly.

It is not improper for judges to base sentencing on all the trial evidence, even if a defendant is not convicted on all charges. What is unusual here is Jackson's impolitic admission that he did so in the Barry case and his public criticism of the jury. Though the judge's remarks are not expected to provide ammunition for upsetting the conviction on appeal, they could pump up the mayor's political fortunes this week by unleashing a sympathy vote in his bid for a D.C. council seat.