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The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 WAKE FOREST LAW REVIEW 223 (1993) (with Steve Y. Koh)

Abstract

The United States Sentencing Commission was long in gestation. It was during the 94th Congress, in late 1975, that Senator Edward M. Kennedy, the Democrat from Massachusetts then in his thirteenth year on the Senate Judiciary Committee, originally introduced legislation to establish the Commission. Nine years later, with the Senator in his twenty-second year on the Judiciary Committee (though now in the minority party), President Ronald Reagan signed the Sentencing Reform Act of 1984, which had passed both Houses of Congress by overwhelming majorities. In our recounting of the legislative history of federal sentencing reform, we tell three interwoven stories. One tale concerns the subtle transformation of sentencing reform legislation: conceived by liberal reformers as an anti-imprisonment and antidiscrimination measure, but finally born as part of a more conservative law-and-order crime control measure. A second tale recounts Congress' failure, as suggested by Justice Scalia in his dissent in Mistretta v. United States, to resolve several significant sentencing issues, thereby assuring that key political decisions would be made by the commissioners appointed by the President. Finally, we discuss the federal judiciary's failure to persuade Congress of the potentially untoward consequences of transferring sentencing authority from individual federal judges to an administrative sentencing commission- a bureaucracy which predictably has proved to be even less responsive to judicial concerns than Congress.

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1993

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