In his widely influential book, Criminal Sentences: Law without Order, Marvin Frankel offered a blistering critique of judge-led sentencing, arguing that judicial sentencing discretion runs afoul of the famed principle of legality. In particular, Frankel claimed that sentencing is unique in its failure to adhere to the rule of law and that sentencing in the mid-twentieth century did not contain enough law. This essay argues that Frankel overstated his case. Although judges likely operated with insufficient constraints on their discretion, Frankel was wrong to argue that precise rules and the elimination of discretion are the hallmarks of justice and the rule of law, or that they are the norm in the modern criminal justice system. He was especially wrong to suggest that those who wrote the U.S. Constitution would have shared that view.
Frankel’s errors led him to embrace legislative rulemaking as the appropriate limit on judicial discretion, rather than appellate court development of flexible legal standards. Frankel’s dismissal of appellate review as the appropriate path to sentencing reform has had long-lasting negative consequences on American sentencing. Unlike rigid, mandatory guidelines¬—which Frankel favored—appellate review would have struck a difference balance between uniformity and individualization, would have allowed for a consensus to build around sentencing factors, and would not have empowered prosecutors to the same extent that the Federal Sentencing Guidelines did.
University of California Press