Ronald Reagan's tough legal legacy.

The law, lawyers, and the court.
June 14 2004 12:27 PM

No Mercy

Ronald Reagan's tough legal legacy.

(Continued from Page 1)

Even before Judge Frankel's book, courts were implementing plans to eliminate disparity and provide symmetry in sentencing. But, while some reform may have been needed, the misnamed Federal Sentencing Guidelines went too far. In reality, they are not "guidelines" at all. They are strict laws that generally compel the judge to impose a particular sentence within a narrow range. With the sentence determined by a matrix that accounts for the offense characteristics and the offender's criminal history, the judge is reduced to little more than a functionary, calculating the score and imposing a preordained punishment. The result: Overly severe sentences are imposed because federal judges have been robbed of their historic power to temper justice with mercy. Straightjacketing the federal judges was exactly what Reagan contemplated in 1986, when he trumpeted the Sentencing Reform Act as establishing "fairness and certainty in sentencing by confining judicial discretion within a relatively narrow range."

Fairness and certainty are undeniably commendable goals. Sen. Edward Kennedy, as early as 1975, introduced a bill in the Senate to create a judicial commission to promulgate sentencing guidelines. In a discussion of the Reagan legal legacy on the occasion of the president's 90th birthday in 2001, Eric Sterling, former counsel to the House Judiciary Committee, told CNN that while the Sentencing Guidelines Act "took place on his watch," it was not a Ronald Reagan creation but very much "a product of Ted Kennedy's efforts."

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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.

In 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. A CFO of a public company who "cooked the corporate books" might have received a four-year sentence under Reagan-era guidelines. Earlier this year, Dynegy Inc. executive Jamie Olis received a prison term of 24 years from a Houston federal judge, not because the judge thought it an appropriate sentence, but because guidelines enacted in 2003 mandated that sentence without opportunity for the judge to act on strongly mitigating circumstances.

No one can seriously argue that a sentence of 24 years (of which he must serve 20) for Olis, a middle-level manager who did not personally profit from his crime, was just. The fact that no one can do anything about it is a circumstance that bears the indelible mark of Ronald Reagan.

Gerald Shargel has represented many high-profile clients, including John Gotti. He is a practitioner in residence at Brooklyn Law School, where he also teaches.

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