The Sentencing Guidelines

So a defense lawyer doesn't like the U.S. Sentencing Guidelines. This is news on the level of "dog bites man." Almost no one -- including most federal judges -- likes the Sentencing Guidelines.

What's of interest is where he tries to place the blame. He wants very much to blame Ronald Reagan for signing the Sentencing Reform Act of 1984, which created the Sentencing Guidelines. But he knows that he can't quite get away with that, because the Guidelines were heavily promoted by none other than Ted Kennedy (as I've previously pointed out).

So he blames Reagan for his appointments to the Sentencing Commission.

In fact, the problem was not so much the Sentencing Reform Act itself, but the Federal Sentencing Guidelines Commission that the act created. Reagan's appointments to that commission, which actually promulgated the provisions that became law, were an unmitigated disaster. As Federal Appeals Judge Jon O. Newman wrote in 2002, "Those who supported the 1984 Act, myself included, expected a Sentencing Commission composed predominantly of individuals experienced in the administration of public policy in general and criminal justice in particular." But, Judge Newman continued,

To the surprise of the Act's supporters, President Reagan named three professors to the first Commission, two from fields other than law. Our surprise at the composition of the Commission was soon surpassed by astonishment at the first draft of the Commission's guidelines, issued in 1986. Instead of the flexible system contemplated by Judge Frankel and others, the Commission ... proposed a rigid, highly detailed structure, which, with only slight adjustments, became the guideline system in place today.

In the end, this rigid inflexibility is the true legal legacy of our 40th president. To Reagan, all criminals were reprobates, and compassionate justice was an oxymoron.

Well, this is an interesting objection. The article doesn't mention that among Reagan's nominees was Stephen Breyer, who has since moved on to a higher occupation. Not only was Breyer on the Commission, he took a leading role. As this biography puts it:

Working from a statistical compilation of average prison sentences, Breyer created a complicated grid that federal judges were required to use to guide further sentencing. Many praised this solution for standardizing rather than rethinking sentencing, and for showing restraint appropriate to a judicial effort. Others complained that "average" sentences inaccurately reflected the range of considerations that led judges to impose much shorter or longer prison terms. All agreed, however, that the effort confirmed Breyer's ability to build consensus and his commitment to rationalizing regulatory solutions. In 1989 the Supreme Court registered its own approval by upholding the constitutionality of the U.S. Sentencing Commission in the landmark separation of powers case, Mistretta v. United States.

Not only that, Breyer helped draft the Sentencing Reform Act itself. As Stuart Taylor said on PBS:

He had an important hand both when Congress drafted the Reform Act in 1984 -- he was the senior staffer on the Judiciary Committee, working for Sen. Kennedy, who had a very important role in drafting them -- and then he was one of the first members of the sentencing commission and had a very important role in drafting the guidelines, themselves.

By the way, in that decision in Mistretta v. United States, there was only one dissenter: Reagan-appointee Antonin Scalia.

The author ultimately admits that "[i]n the years following the Reagan administration, under both Republican and Democratic presidents, the Sentencing Commission and the Congress continually stiffened the punishment for offenders, particularly in the area of white-collar crime." It's difficult to see how all the blame goes to Reagan if the real complaint is that Congress increased minimum punishments after Reagan, including under Clinton.