Doing Injustice: Exchanging One “Arbitrary, Cruel, and Reckless” Sentencing System for Another Available to Purchase

Marvin Frankel’s characterization of American sentencing in Criminal Sentences: Law Without Order remarkably successfully distilled ideas that were in the air and emerging. His main proposals—a sentencing commission, sentencing rules, requirements that judges explain their decisions, and meaningful appellate sentence review—would in a better America go a long way toward establishing the kind of rational, humane, and just process he imagined. Despite some early, partial successes, however, Frankel’s proposals remain largely untested. In retrospect, he underestimated, misunderstood, or chose to ignore formidable political impediments to serious sentencing reform in late twentieth century America. He also largely ignored two intractable problems, America’s extraordinarily long maximum and often—his word— bizarre authorized prison sentences and the overweening powers, then and more now, of American prosecutors. Despite all that, Criminal Sentences is a remarkable accomplishment. The ideas were ahead of their time. The writing is simple, clear, often witty, sometimes eloquent, an exemplar of good writing for lay people about legal subjects. In some gentler, kinder future its proposals may show the way to creation of American sentencing systems that take justice and human dignity seriously.