Marvin Frankel’s Sentencing Reform Journey: 1970–1978 Available to Purchase

Drawing on the Marvin E. Frankel archive maintained by the John Jay College of Criminal Justice in New York City, as well as other public sources, we explain what we have learned about the evolution of Frankel’s views on criminal sentencing in the federal courts, and the district judges who pronounce sentence. As far as we have been able to determine, Frankel appears not to have focused on sentencing in particular until 1970. In January of that year, he agreed to give the Robert S. Marx lectures at the University of Cincinnati College of Law--lectures he would not deliver for nearly two years. By April 1971, he had settled on his topic: judicial sentencing discretion and its discontents in federal court. His first extensive pronouncement was at the annual banquet of the Columbia Law Review that month. Initially he was opposed to the delegation of sentencing authority to non-judges. But by the time of the lectures, he urged binding sentencing rules, employing numerical weighting of sentencing factors, and the creation of a “national commission” including non-lawyers to undertake a rehaul of federal sentencing law, such as it was. For the next seven years, Frankel worked to make his plan a reality. By 1978 his efforts had all but ceased, as he left the bench and moved on to other concerns, including international human rights. Frankel’s sentencing valedictory, delivered at a symposium sponsored by the Yale Law Journal, was in 1992, a decade before his death. We describe the tone of those remarks as “wistful.”