Wednesday, August 26, 2009

Kennedy's Legacy

With Ted Kennedy's passing, news outlets are focusing on his history with health care, Supreme Court nominees, and his tumultuous personal life. One area that's likely be be overlooked (except by Doug Berman, of course) is his key role in developing the modern world of federal sentencing.

Kennedy, along with Orin Hatch and Strom Thurmond (of all people), pushed along the reforms that culminated in the Sentencing Reform Act in 1984, which gave us the United States Sentencing Commission and the Sentencing Guidelines. The motivation for the Act was pure - federal sentencing up to that point was largely standardless and provided judges with almost unlimited discretion in setting sentences. Inequalities, real or perceived, were inherent in that kind of discretion.

The Act and the Guidelines reigned things in, but at the expense of flexibility. Treating like cases alike sounds good in theory, but nearly impossible to achieve in real life. As a result, the Guidelines traded severity for discretion and, 25 years on, needed reform themselves. So, it's perhaps not the great legacy Kennedy and of the others hoped for, but it's one that will be around for a while.

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