More Law Than We Needed: Marvin Frankel on Criminal Sentencing

In my article about Marvin Frankel’s contribution to federal sentencing, I argue that the sentencing model that Frankel favored, one based on detailed rules of general application and greatly reduced judicial discretion, is highly flawed and will almost always result in sentences that are too harsh. I explain why I believe this is so and emphasize that placing sentencing decisions in the hands of elected officials or their appointees, members of sentencing commissions, is a problem because it connects sentencing too closely to the vagaries of electoral politics. As an example, I cite the federal sentencing guidelines which, in my view, are too harsh and reflect the deficiencies in Frankel’s approach to sentencing. I advocate a system that relies less on laws of general application and confers more responsibility on judges to impose sentences they believe are fair. I am also critical of Frankel for prioritizing the creation of a guideline system of sentencing over that of reducing harshness. I note, however, that I agree with Frankel on some points, including that judges should have to give reasons for the sentences they impose and that sentences should be appealable.