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May 8, 2009

"Marvin Frankel’s Mistakes and the Need to Rethink Federal Sentencing"

The title of this post is the title of a new article by Judge Lynn Adelman and Jon Deitrich, which will soon appear in the Berkeley Journal of Criminal Law. I am pleased and hornor to have permission to post the piece on the blog, and here is a paragraph from the introduction to further whet a sentencing guru's appetite for great weekend reading:

We agree that Frankel was a brilliant professor and a distinguished judge and that Congress and the Commission implemented his ideas poorly.  We also agree that he wanted sentencing to be more humane.  However, we believe that Frankel’s analysis of sentencing was deeply flawed, and that the guidelines failed in substantial part because of the flaws in his approach.  We also believe that discussing Frankel’s ideas is timely, both because of the recent Supreme Court decisions returning sentencing discretion to district judges and because of the recent interest in the problem of mass incarceration to which the guidelines have contributed. In this article, we discuss Frankel’s ideas, the problems with them, and their effects.  We conclude with several recommendations as to how to improve federal sentencing.

Download Adelman on Frankel's mistakes

May 8, 2009 at 02:33 PM | Permalink


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An interesting, helpful, and provocative piece. A tad long on the "problem analysis" and short on "solution analysis," however. As to the latter, there's a remedy: Judge Michael Wolff's excellent article: "Evidence-based Judicial Discretion: Promoting Public Safety Through State Sentencing Reform," 83 NYU L.Rev. 1389 (2008).

Posted by: MAS | May 8, 2009 4:17:36 PM

Before wasting time on what is certain to be misleading lawyer propaganda, does the author address the drop in victimization rates starting in 1994?

If not, reading this drivel is a total waste of time. There are 17,000 extra-judicial executions. There are 5 million violent crimes a year. The damage dwarfs any from excessive incarceration.

Posted by: Supremacy Claus | May 8, 2009 5:00:13 PM

Thanks, now I know who to blame. The answer was two pages in: "Criminal Sentences: Law Without Order."

Law and order are incompossible.

Posted by: Daniel | May 8, 2009 5:13:06 PM

Thank you for this article. The culture of the 70s explains some of the short sighted thinking surrounding support for Frankel's ideas about sentencing.

Apparently it was a hot topic around Cambridge at this time and Frankel was the winner in the implementation of the law. The feeling in the academic community at this time was certainly prejudiced toward the superiority of federal legislation to protect individual rights. This has not proven to be true.

Alan Dershowitz and Ted Kennedy spear headed the campaign for this and it would be a fitting end to Kennedy's Senate career if he would endorse legislation for repeal of this unfortunate experiment. Unfortunately much of the culture has come to depend on long and harsh sentencing for their livelihood. It well be a tough sell, but maybe one whose time has come.

Posted by: beth | May 9, 2009 12:51:12 PM

I personally don't agree that the federal guidelines are a failure. One of the reasons for "Frankel's experiment" aka the Sentencing
Reform Act of 1994 was to rid the system of unwarranted disparity. True, Congress tied the hands of the Commission by also passing a myriad of mandatory minimums and the Commission made an initial error by tieing the guidelines to these mandatories, but when the guidelines are able to work, disparity is decreased.

The Commission's report on sentencing after Booker showed that during the period after the Protect Act, racial disparity in sentencing disappeared. The Protect Act forced judges to sentence within the guidelines unless there were compelling reasons to go outside the guidelines. The report also showed that after the Booker decision, racial disparity re-entered the system. Unfortunately, one of the outcomes of judicial discretion is racial disparity.

Is the problem with federal sentencings is that whites are being sentenced like African-Americans have always been, and NOW sentences are perceived to be draconian? If you care at all about disparity in sentencing, then you should favor guidelines. Reasonable minds may disagree on whether the federal guidelines are a bit much, but if you read some of the studies, you will see that when judges are given full discretion in sentencing, their bias and prejudices come through, and African-Americans get screwed!

Posted by: Chelsea | May 11, 2009 7:22:46 AM

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