Who Built Prison America? Not Ted Kennedy


Happily, “mass incarceration” has fallen out of favor, both among policymakers and academics. As Congress considers bipartisan proposals to roll back harsh federal sentencing laws, scholars are examining the roots of these discredited policies.

In her book The First Civil Right: How Liberals Built Prison America, Princeton University Professor Naomi Murakawa blames, among others, the late Senator Edward M. Kennedy of Massachusetts.

Before explaining why I disagree with Professor Murakawa's conclusions, I must disclose that I am not a neutral party. I worked for Sen. Kennedy, first as a lawyer on the staff of the Labor and Human Resources Committee from 1990 to 1995, and then as his chief counsel on the Judiciary Committee until 1997. In those years I came to admire greatly the Senator himself, his values and his formidable legislative skills.

Earlier this year, I attended ceremonies to mark the opening of the Edward M. Kennedy Institute for the United States Senate. The Institute memorializes EMK's life and work; and its location alongside the John F. Kennedy Presidential Library on the Boston campus of the University of Massachusetts is a reminder that Ted Kennedy had a record of political accomplishment as impressive as any American who has not served as president.

Walking through the exhibits of the Institute, one is reminded how often Kennedy, a Democrat to his core, worked with Republicans to pass major legislation. He teamed with Alan Simpson (R-WY) to enact immigration reform in 1986, with Orrin Hatch (R-UT) on a series of important health care bills in the 1990s, and with archconservative Lauch Faircloth (R-NC) on a 1996 bill to combat an epidemic of church burnings. The Institute highlights these and Kennedy's many other bipartisan accomplishments.

In all of these efforts Kennedy never lost sight of his progressive ideals. But he recognized that in a legislative body whose rules reward consensus, the only way to advance his goals was to negotiate and compromise with influential members on the other side of the aisle.

There really is an aisle separating the desks where Democrats and Republicans sit in the Senate chamber, and Kennedy was never hesitant to cross it. He enjoyed, in his words, “yukking it up” with colleagues of all political stripes—telling tales from long-ago campaigns, trading tips for shared medical woes and eventually finding common ground on pending legislation.

One of Kennedy's most far-reaching bipartisan accomplishments was the Sentencing Reform Act of 1984. Yet this law serves as Exhibit A for Professor Murakawa's theory that liberals bear responsibility for the failed criminal justice policies of that era. She blames the sentencing guideline system established by the Act for contributing to mass incarceration and accuses Sen. Kennedy of advancing unduly punitive policies.

Does Kennedy deserve this criticism? Let's review the legislative history.

Kennedy's co-sponsor of the 1984 Act was the legendary Strom Thurmond of South Carolina. Thurmond, who ran for president in 1948 as an avowed segregationist and who served as a Republican senator until his death in 2003 at the age of 100, had little in common with Kennedy. But over the course of decades of shared service on the Senate Judiciary Committee, the two men somehow became friendly and respected each other's formidable political skills.

As chair of the Judiciary Committee in the late 1970s, Kennedy championed a series of bills to rationalize the federal criminal code and procedures. When Thurmond took the chairman's gavel following the Republican landslide of 1980, Kennedy saw him as a natural negotiating partner on criminal justice issues.

A centerpiece of Kennedy's goals in this area was the establishment of a guideline system to minimize what liberals like Kennedy saw as unfair disparity in federal sentencing practices. The guidelines movement, championed by liberal academics at Yale Law School and respected federal judge Marvin Frankel, had already found root in Minnesota and at the U.S. Parole Commission. Meanwhile Thurmond, allied with the punishment-minded Reagan Justice Department, generally wanted to lengthen federal sentences.

Through the early 1980s, the two senators worked together on bills to abolish parole and to establish a judicial branch commission to write enforceable guidelines for a new system of determinate sentencing. Their handiwork eventually became the 1984 Sentencing Reform Act.

Murakawa has harsh words for all who supported the 1984 Act, but she singles out Kennedy for special criticism. She decries the fact that the man she calls “the liberal lion of the Senate” included in the law various “carceral” elements such as the abolition of parole and a reduction in the availability of good-time credits for prisoners. She tracks changes in the sentencing bills Kennedy introduced from 1977 to 1984 and argues that his bills became increasingly punitive. She regards Kennedy as a “hard test case for my claim that Democrats aided, abetted, and legitimized a punitive law and order regime.”

The first flaw in the Murakawa book is its subtitle: How Liberals Built Prison America. No fair observer of criminal justice policy could conclude that liberals – or conservatives or Democrats or Republicans – bear sole responsibility for the spike in incarceration over the past half century. Rather, these disastrous criminal justice policies were a bipartisan misadventure that reflected the nation's anger and fear about crime.

Every crime bill enacted by Congress in the 1980s and 1990s passed with broad bipartisan majorities and the support of leaders from both political parties. Only a handful of liberal House Democrats sometimes voiced concern. The Senate often passed crime bills by unanimous consent.

It is certainly fair to criticize Kennedy and other liberals for supporting bad crime bills. But they did not build “Prison America” by themselves, as the subtitle of Murakawa's book unfairly suggests.

Murakawa's narrative also fails to appreciate the complex collaborative nature of the legislative process. She attributes to Kennedy personally the flaws she perceives in his bills. Yes, he was a lead sponsor of the Sentencing Reform Act, but he did not write the law in a vacuum. The bill's text is the product of years of negotiations with Thurmond and many other members of the Senate, as well as committee markups and floor debates.

Murakawa acknowledges, but does not emphasize, the huge influence of the Justice Department in shaping the final law. It is no surprise that a bill first introduced during President Jimmy Carter's administration became more conservative by the time it was signed into law by President Ronald Reagan.

Too often, Murakawa conflates the role of the guideline system and mandatory minimum sentencing laws in contributing to overincarceration. Many of the most draconian mandatory minimums for drug and gun crimes were enacted in 1986, after the passage of the Sentencing Reform Act of 1984 but before the guidelines took effect in 1987. Kennedy recognized that mandatory minimums were unjustified once the guideline system had been established. He repeatedly argued that guidelines are a reasonable mechanism to restrain judicial discretion, whereas mandatory minimums are blunt and unyielding.

Throughout the 1990s Kennedy fought against mandatory minimum sentencing proposals, as I detailed in my article “The Battle Against Mandatory Minimums: A Report from the Front Lines.

He championed the safety-valve provision (18 USC 3553(f)) in the 1994 crime bill, which allows certain low-level, nonviolent offenders to be sentenced below applicable mandatory minimums. In fact, in his 1994 reelection race against Mitt Romney, Kennedy faced brutal ads claiming he was soft on crime because he had opposed mandatory sentencing.

Kennedy and other liberals can be faulted for voting in favor of the 1986 crime bill and other bills which contained mandatory minimums, but they did not lead the charge for those policies as Kennedy had for a guideline system. In fact, Sen. Kennedy was a leader in opposing mandatory minimums once their effect became clear and their inconsistency with the guideline system became apparent.

More generally, Kennedy was a voice for more rational criminal justice policies. He always opposed capital punishment and, as Prof. Murakawa notes, led the unsuccessful fight to pass the Racial Justice Act which would have allowed capital defendants to challenge their sentences using statistical evidence of racial bias.

Kennedy was one of only a small number of senators to oppose the Antiterrorism and Effective Death Penalty Act of 1996 because it eviscerated the right to habeas corpus relief for many prison inmates. And he was the chief Democratic sponsor of the Prison Rape Elimination Act of 2003 – another bipartisan effort, this one with GOP Sen. Jeff Sessions of Alabama.

Even so, I and other defenders of Sen. Kennedy's record must grapple with the negative effects of the sentencing guideline system.

In my view the guideline concept is sound, but its execution at the federal level was plainly unsuccessful. In particular, the provision in the Sentencing Reform Act requiring the top of each guideline range to be no more than 25 percent higher than the bottom dictated an unduly detailed, complex and mathematical guideline system.

Other flaws emerged due to decisions of the initial commissioners, who were appointed by President Reagan. But the guidelines are now advisory and the Commission itself has often advocated for less punitive policies than Congress has enacted.

Professor Murakawa has written a thoughtful, comprehensive academic study of federal sentencing policies. A book like hers provides an important service, but it cannot be expected to take account of the rough-and-tumble aspects of the legislative arena. During his long political career, Sen. Kennedy endured criticism that was a lot harsher and less fair than that contained in Murakawa's book.

As someone who has been involved in criminal justice policy for many years, both before and after I worked for Sen. Kennedy, I share Murakawa's concern about America's overreliance on incarceration. I also applaud the current trend toward more sensible sentencing policies.

I have no doubt that if Sen. Kennedy were alive today, he would be leading the charge for criminal justice reforms. And he would be doing so in a bipartisan manner, working with Sens. Rand Paul, Mike Lee and other unlikely bedfellows. That was his way.

Weich is dean of the University of Baltimore School of Law. He previously served as an assistant attorney general in the U.S. Department of Justice, as chief counsel to U.S. Senators Harry Reid and Edward M. Kennedy, and as special counsel to the U.S. Sentencing Commission. The author welcomes your comments.

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