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.

No quality of mercy
No quality of mercy

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.

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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.

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."

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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