In these days of uncertainty—days of terrorist threats, foreign-policy challenges, and controversial military action—the death of Ronald Reagan was perfectly timed. His whitewashed image—that of an outsized leader, riding tall in the saddle with a sure hand and clear vision—diverts our attention and soothes our collective psyche.
On the world stage, the media posthumously tell us, Reagan was the indomitable Cold Warrior who vanquished communism by sheer force of will ("Mr. Gorbachev, tear down that wall."). On the home front, he was the plainspoken revolutionary who conquered inflation and reshaped American monetary policy with "Reaganomics," an ambitious blend of radical tax cuts and ruthless reductions in government spending.
But there's an underappreciated and equally enduring aspect of Reagan's legacy that is also worth contemplating: his pernicious impact on the federal judicial system. With almost biblical reach, Reagan sought to smite what he perceived as the criminal menace. In the words of his attorney general, William French Smith, Reagan aspired to nothing less than readjusting the "balance between the forces of law and the forces of lawlessness."
This ideological worldview—war on crime as a struggle between good and evil—raised the stakes in a culture, peculiarly American, of politicizing criminal law issues. The result was unforgiving legislation known as the Comprehensive Crime Control Act, which ushered in both procedural and substantive laws that continue to haunt the administration of federal criminal justice.
Consider, for example, the Bail Reform Act of 1984. Historically, bail had a single purpose: to insure that the accused return to court as required. Only genuine flight risks were jailed pending trial. By contrast, the 1984 bail statute, while paying lip service to the presumption of innocence, allows incarceration on a judicial finding that the defendant is dangerous. For the first time during peace, preventive detention—embodying the long-discredited notion that past behavior accurately predicts future conduct—became the law of the land.
Today, because of this Reagan initiative, federal prisons are filled with pretrial detainees deemed dangerous, or subject to a handful of statutory presumptions that largely result in jailing low-level drug dealers. Lengthy pretrial detentions of a year or more are not uncommon.
In the same legislative effort, Reagan engineered passage of 23 other "anti-crime" measures, including dilution of the insanity defense, oppressive forfeiture laws, abolishment of parole, and mandatory minimum sentences for offenses involving weapons. Mandatory minimum sentences for drug cases followed in 1986 and remain hotly debated today.
But the most sweeping judicial innovation of the Reagan era was the 1984 Sentencing Reform Act, implementing the much maligned Federal Sentencing Guidelines. Twenty years later, the guidelines are still controversial, attacked almost daily by the judges charged with executing them.
Granted, the concept of sentencing guidelines was not Reagan's brainchild. To the contrary, the idea dates at least to 1974, when Manhattan federal Judge Marvin Frankel, in his book Criminal Sentences: Law Without Order, noted pervasive and unwarranted sentencing disparities among similarly situated offenders.
Bank robbery, for example, carries a prison term of up to 20 years. In the pre-guidelines era, a first-offender bank robber could appear before a given judge and receive a three-year sentence. Yet another first offender for the same crime, with an identical family and social profile, could walk into a different judge's courtroom and leave with a 20-year prison term, simply because that judge subjectively felt it appropriate.