Law without Order, Then Too Much Order, Then Not Enough? Available to Purchase

Judge Marvin Frankel’s 1973 book Criminal Sentences: Law Without Order launched a half century of robust debate and scholarship, but also inspired the unsuccessful Sentencing Reform Act of 1984. This article traces the poor decisions in Congress, the judiciary and the Justice Department that contributed to the development of an intolerably rigid and complex system routinely producing unjust federal sentences. The Supreme Court declared the binding system unconstitutional in U.S. v. Booker, but left behind an advisory system that is inefficient and unprincipled. The guidelines remain in place, complex as ever. Judges must utilize the guidelines to calculate the applicable sentencing range but may then freely stray from that range through the use of departures or variances. The guidelines coexist with mandatory minimum sentencing laws that are decidedly not advisory. And recently, the movement toward “second look” sentencing calls into question the determinate sentencing model at the heart of the 1984 Act. Summoning themes from Frankel’s book, the article calls for a reassessed federal sentencing system reflecting the virtue of simplicity, the need for coherence and the key role of judges. Inspired by Frankel, we should dare to imagine a more just and effective federal sentencing system for our time.