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August 26, 2009

Assessing Senator Kennedy's sentencing reform legacy

As reported here, Senator Edward Kennedy passed away last night at the age of 77. Though I doubt the mainstream media will talk much, if at all, about his foundational role in federal sentencing reform efforts, I will always think of Senator Kennedy as one of the driving forces behind the passage of the Sentencing Reform Act of 1984.  In a future post, I may try to put together a mini-bibliography of some of Senator Kennedy's writings and advocacy in the area.

In this post, however, I would like to hear from readers about what Senator Kennedy's sentencing reform legacy should be in light of what the SRA became, and also given Senator Kennedy failure to prevent Congress from regularly adopting mandatory minimum sentencing statutes that seem in tension with various key principles of the SRA.  Ultimately, only sentencing gurus will likely view Senator Kennedy's career through the lens of federal sentencing reform, but I figured this blog should provide the best forum for such a discussion.

August 26, 2009 at 08:45 AM | Permalink


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It was the remarkable collaboration of Kennedy and Strom Thurmond that brought about the SRA. That legislation was a breakthough in sentencing, as it finally put some teeth into the idea that judges could not do whatever they wanted.

Regrettably, the Supreme Court in Booker effectively ended the best parts of the SRA, resulting in scattershot outcomes of the kind that justifiably concern both conservatives and liberals (see, e.g., the current luck-of-the-draw lottery that crack sentencing has become). But that the Court got it wrong does not detract from the fact that Thurmond and Ted Kennedy got it right.

Posted by: Bill Otis | Aug 26, 2009 10:37:15 AM

It takes about 10 years for a law to get fully understood, and to have its impact. About 10 years after that passage, crime victimization dropped about 40% across the board. This is a great lawyer achievement. It shows that the lawyer can control crime when he decides to. About 40,000 people owe their lives and millions of people were spared traumatic crime victimization.

The Supremacy disagreed with the Senator on policy, but he deserves credit for fairness and intelligence. The Supremacy happened to have been investigated by the Senator. He turned out to be very hard working, knowledgeable about specialized matters, fair. After the investigation, he was very supportive and helpful. By that time, the Supremacy got the message, however, and left Washington. The rumors of parties with naked girls running about at his house are nobody's business. They merely show he was a fun guy.

Posted by: Supremacy Claus | Aug 26, 2009 11:43:19 AM

It's also worth remembering that one of the key designers/proponents of the Guidelines 1.0 back in the '80's was then-Judge Breyer, whose stepping stone to the 1st Cir. was having been Sen. Kennedy's chief staffer on the Judiciary Committee.

Posted by: J.W.B. | Aug 26, 2009 12:34:04 PM

the SRA was a well intended reform, but a failure in the end. from the liberal side, the idea behind it was that sentences would be equalized---that the poor would not serve more time than those similarly situated who were better off or better connected. in practice, the sentencing commission had no idea what to do and so, as justice breyer has explained, it looked at a bunch of past sentences and averaged them. then it set offense levels based on averages and created an arbitrary criminal history setup, put it all on a grid and declared that it was good. of course, it wasn't because no one is an "average" defendant and thus similarly situated cannot be measured mechanically. under the guidelines many reformable or less culpable defendants were swept up in the grid's call for singificant imprisonment time for most every offense. (and, for things like drugs and illegal immigration, the commission created sentences above historical averages, making sure all those carpenters looking for work and kids selling marijuana were harshly, and for us, expensively, punished.)

perhaps, had the commission stopped at that point the system would not have become so unfair, but it didn't. it became vested in its guidelines, passing policy statements that outlawed departures from its guidelines on essentially every basis one could think of, stripping the humanity from defendants and judges. the effect was to require over-long imprisonment terms for many people who didn't need them, and, eventually to bring about booker, a decision of questionable statutory interpretation and constitutional lineage, but the best thing that had happened to sentnecing in many years. the guided discretion system that has emerged in fact after booker combines the better aspects of the SRA's hopes and the discretionof the pre-SRA system. (and we didn't even talk about the way the guidelines could be manipulated by prosecutor's charging decision or how prosecutors play the theoretically neutral probation officers or how the guidelines' structure encourage probation officers to rack up the score)

kennedy can't be held responsible for the way the commission acted (although perhaps breyer, whose oft-expressed technocratic beliefs suggest he does think all life can be plotted out on a sensible grid, does), but the SRA must, i think be counted a failure.

Posted by: big bad wolf | Aug 26, 2009 1:25:07 PM

Wolf: Your description of the original commission's work leaves out the most important part: what happened next. After they set the initial guideposts they went back, now well over 700 times, and amended the GL's. More often than not the amendments were based on a deliberative process that included input from all sides. Never perfect, but far better than you suggest. The times the Commission has got it wrong almost always coincide with a mandatory minimum or other explicit directive from Congress (such as child porn specific offense characteristics), and not a result of the Commission's own deliberative process.

People like to forget that it was the Commission, not Obama or Gen. Holder, that first proposed equalizing crack by sending an amendment to Congress that did just that - and it was firmly rejected. People forget that the Commission has been sending detailed reports to Congress for a decade suggesting the 100:1 ratio had no basis. And to this day, while Holder and Congressmen talk a nice game, the Commission is the only entity to give crack defendants any relief, including retroactive relief.

And I'm sorry, but you're mistaken when you suggest that the Commission is/was responsible for drug sentencing escalation. That's firmly the responsibility of Congress and it's continued insistence on mandatory minimums. You forget that the SRA includes language that the Commission's actions must be "consistent" with all federal law, including mandatories. The Commission cannot, by law, set a penalty below a mandatory, and even if it did (and even assuming Congress didn't reject such amendments - again), what good would setting the base offense level below the mandatory do? If you think the Commission supports drug mandatories then I suggest you read their mandatory minimum report.

And regarding reentry offenses, while there are no mandatories (yet) the 16 level enhancement for crimes of violence, and the 8 level enhancement for aggravated felonies were not included in the original 1987 guidelines, and contrary to your statement, immigration penalties were originally pegged at averages just the same as all other offenses. The large enhancments were added after Congress specifically directed such changes to the Commission in legislation. Congress, not the Commission.

As for Kennedy, he was wise to sign on to the SRA but would be regarded wiser still had he opposed mandatory minimums with the same zeal.

Posted by: Ferris Bueller | Aug 26, 2009 5:16:51 PM

The reason mandatory minimums persisted even in the era of mandatory guidelines was the same as the reason mandatory guidelines came about to begin with: Congress did not trust federal district judges to behave themselves. If the judges had acted differently, the reaction in Congress would have been different.

Nor can the guidelines be called a failure. As even Eric Holder has been forced to acknowledge, the guidelines era saw a very significant (40%) decrease in the crime rate. Not all of this was due to the guidelines, but it's silly to argue that none of it was.

A decrease in crime can scarecly be called a failure.

Posted by: Bill Otis | Aug 26, 2009 5:40:58 PM

Under the new sentencing guidelines we have seen a massive explosion in federal prison populations--prisons filled with largely non-violent people without the wherewithal--intellectually,educationally, financially, or otherwise--to be significant actors in any sophisticated criminal enterprise.
The immorality and the absence of social benefit of this is a national disgrace.

Posted by: Kline Gowen | Aug 26, 2009 7:57:11 PM

It is a shame that the SRA as envisioned by Senator Kennedy was never implemented. Before the guidelines even took effect, Congress enacted mandatory mininum sentences in drug and firearm offenses that were incommensurate with the guidelines and that made one or two facts largely determinative of the sentence. Then Congress micro-managed the Commission's agenda and guideline drafting process, never allowing the federal Commission to function as an independed expert agency as the best of the state commissions have done. Perhaps as a tribute to his legacy it is time to really try sentencing reform.

(Anyone who thinks the drop in the national crime rate was significantly affected by the federal sentencing guidelines is letting ideology get in the way of reality. The federal guidelines are particularly ill-targeted on incapacitating high-recidivist offenders. And research shows there is no increase in marginal deterrence from lengthier prison terms.)

Posted by: pjhofer | Aug 27, 2009 12:41:45 PM

i certainly don't disagree that mandatory minimums distorted certain guidelines. i do, however, think that not all the blame can be put on congress for the way the guidelines turned out. for example, the commission severely limited the possiblity of probated or split sentences for drug offenders not affected by mandatory minimums. that's a pro-imprisonment decision by the commission; there are plenty of others.

more generally, i think the commission became terribly territorial, convinced that it and only it could derive and plot the appropriate sentence in essentially all cases. hence, the repeated amendments limiting departures and the amendments "correcting" a circuit decision or eliminating language that had been interpreted as allowing leeway or lenity. this culminated in the commission's, near delusional, post-booker insistence that it has done all of the consideration of the 3553 factors that could be necessary in any defendant's case. there is no one-size-fits-all sentencing, even with the best of intentions and even with the smart and hardworking people at the commission. the post-booker guided discretion system that we have stumbled into works well---in my experience courts consider the commission's guidelines and stats seriously, but they also sentence the person in front of them in light of that data, not as an average, statistically derived defendant who makes a point on a grid. let's not try to make the guidelines work or otherwise reform sentencing to enforce an ideal.

Posted by: big bad wolf | Aug 27, 2009 1:34:51 PM

now its up to us..

Posted by: jacob williams | Aug 27, 2009 3:52:33 PM

…like we’ve all been saying, it’s not a good proposition. Look at Canada and all other countries that have this type of health reform…it’s not beneficial to folks who truly need good and quick health attention.

Posted by: bblack | Aug 27, 2009 4:14:04 PM

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