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Copyright (c) 1990 Northwestern School of Law
Journal of Criminal Law & Criminology

ARTICLE: Supreme Court Review: Foreword: Structuring Sentencing Discretion: The New Federal Sentencing Guidelines New Federal

Winter, 1990

80 J. Crim. L. & Criminology 883


Ilene H. Nagel *



On October 12, 1984, the most broad reaching reform of federal sentencing in this century became law with the passage of the Sentencing Reform Act. 1 The purpose of the Act was to attack the tripartite problems of disparity, dishonesty, and for some offenses, excessive leniency, all seemingly made worse by a system of near unfettered judicial discretion. 2

For decades, empirical studies repeatedly showed that similarly situated offenders were sentenced, and did actually serve, widely disparate sentences. 3 Furthermore, the disparity found to characterize federal sentencing was thought to sometimes mask, and be correlated with, discrimination on the basis of a defendant's race, sex, or social class. For a system claiming equal justice for all, disparity was an inexplicable yet constant source of embarrassment.

The charge of dishonesty stemmed from the fact that sentences pronounced by the court were, with rare exception, never served: twelve years meant four, eighteen meant six, thirty meant ten. 4 The court and defendants were privy to the numerical symbolism; only the public and the victim were duped by the sham. Moreover, while the parole system purported to reduce disparity, it failed because it never addressed the disparity within the first decision -- whether an offender was or was not imprisoned. Furthermore, it served to perpetuate a system where the judge's sanction was not dispositive. 5

Finally, year after year, public opinion polls confirmed the hiatus between sentences meted out by the court and the public's normative judgment ...
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