Be Careful What You Wish For

Although this article applauds many of the criticisms of sentencing practices contained in Judge Marvin Frankel’s influential book, Criminal Sentences: Law Without Order, it maintains that the reforms he championed failed to advance the goal of greater certainty in sentencing. Moreover, these reforms concentrated discretion in hands of prosecutors, who were less likely to exercise their discretion wisely than the judges and other officials whose powers were curbed, and the reforms increased the pressure on defendants to waive their rights. The article describes how Frankel-backed reforms contributed to mass incarceration, and it considers how today’s sentencing guidelines might have altered Judge Frankel’s determination of sentence in the 1976 “heater” case of Rabbi Bernard Bergman.