Judge Frankel’s Fifty-Year-Old Invitation to Reconstruct Sentencing

As a sentencing scholar, Judge Frankel’s boldness and willingness to dream big about creating a different sentencing system have inspired me throughout my career. His willingness to call for reconstructing the sentencing system is an appeal that still rings true today. Despite the many changes in the United States since Frankel wrote Criminal Sentences: Law Without Order, the need for systemic changes to criminal punishment remains. Questions about why we are punishing the way we punish who we punish are central to today’s advocacy against mass incarceration. Seventeen years ago when I read Law Without Order at the start of my academic career, I accepted Judge Frankel’s challenge to “not close the topic along with the book.” And, inspired by his confident approach to pitch an entirely new sentencing dream, my proposal to address current racial disparities in criminal punishment – an antiracist reconstruction of sentencing laws and practices – is one that may need time before it is widely accepted. My concept of “Reconstruction Sentencing” has antiracism as it’s foundation. Just as antiracism requires the belief that “racial groups are equals in all their apparent differences,” Reconstruction Sentencing requires adopting the premise that “racially disparate sentencing outcomes rooted in racial bias are racist and must be eliminated through law and policy.” It is the type of proposal that is in line with the bold recognition of the need for massive change that Judge Frankel inspires.