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January 22, 2010

Fitting account of Dan Freed's sentencing contributions in NY Times

Today's New York Times has a fine and fitting discussion of Dan Freed's many contributions to sentencing law and policy in this obituary.  Here are excerpts:

Daniel J. Freed, a Yale Law School professor who was a leading intellectual influence and commentator on how Americans convicted of crimes should be sentenced, died Sunday in Manhattan. He was 82 and lived in Guilford, Vt....

Professor Freed also had an important role in shaping the modern concept of bail. His writings, notably the 1964 book “Bail in the United States” — written with Patricia M. Wald, later a prominent federal appeals court judge — influenced landmark legislation in 1966 that brought what scholars described as greater fairness to federal bail practices.

But it was in sentencing, another area of the law that had drawn little attention in law schools, that Professor Freed had his most profound influence.

Kate Stith, a professor and former acting dean of the Yale Law School, said Professor Freed had devoted much of his career to “examining and exposing the parts of the criminal justice system that were, when he began his work, most opaque and basically unregulated by law: bail and sentencing.”

Professor Freed pioneered the study of the subject when he brought Alabama state judges, a largely conservative lot, to Yale Law School to discuss with students what the sentences should be in hypothetical cases.

For decades, judges had unquestioned power to impose sentences using their own discretion with little fear of appeal. Professor Freed argued for more regularity in sentencing. It was unfair, he asserted, that the same crime committed under similar circumstances could result in widely different sentences, depending on the luck of the draw of which judges presided over the cases.

His writings influenced the passage of the Sentencing Reform Act of 1984, which called for a federal commission to establish sentencing guidelines. But he soon became a critic of how the remedy was used.

In practice, Professor Freed said, the guidelines imposed a mechanistic rigidity on sentencing by obliging judges to adhere to a complicated set of charts and tables in determining a sentence. Deviating from the guidelines exposed a judge to reversal by a higher court.

The new process, he asserted, merely shifted discretion from judges to others in the system, notably prosecutors, who could control sentencing by choosing which criminal charges to bring. A prosecutor’s discretion in selecting charges became the primary factor in sentencing, he argued, because once a conviction was obtained, judges felt largely bound by the guidelines.

Professor Freed was a founder of the Federal Sentencing Reporter, an influential publication [available here] that he used to chronicle sentencing developments and to argue, usually gently, that the system had gone awry. He urged judges to resist the rigid guidelines and to write opinions explicating their reasons for doing so.

Nancy Gertner, a federal trial judge in Boston and an authority on federal sentencing, said Professor Freed had urged judges to reason among themselves and to produce a body of law that would transform the guidelines into recommendations instead of mandates.

In 2005, a divided United States Supreme Court in Booker v. United States ruled for the first time that the guidelines were not mandatory, bringing the system more in line with what Professor Freed had envisioned.

In addition, The Vera Institute of Justice (where Dan was a Trustee) has this tribute to Dan on its website (which comes from the pages of the April 2009 Issue of the Federal Sentencing Reporter where there are additional fitting tributes to his sentencing legacy).

January 22, 2010 at 01:45 PM | Permalink


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A judgment on his greatness must come in 10 years. He has gotten his way across the board on guidelines.

Will that formula result in more or less damage from criminality? It is too early to assess.

Having your way with arrogant, know nothing incompetents on the Supreme Court is no sign of success, nor of any external validation. It is a bad sign that rent seeking, lowlifes like one's idea. It is a very bad sign to get praise from the NY Times, and from sentencing academics. They are all criminal lovers, advocates of government lawyer sinecures, and mortal threats to crime victims.

Posted by: Supremacy Claus | Jan 22, 2010 11:06:21 PM

I was a trial lawyer in the Civil Rights Division of the Department of Justice when I first met Dan but the real nexus is that my wife Jackie and I happily hosted Judy (who was living in New York) at our Washington home when the Dan-Judy courtship began. So we experienced the warmth and pride that comes from taking part in the development of such a beautiful and long-lasting relationship.

David and Jackie Marlin

Posted by: David Marlin | Jan 29, 2010 11:56:26 AM

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