Federal Sentencing Reporter
Judge Marvin Frankel’s writings in the early 1970s inspired the creation of sentencing guidelines commissions and guidelines rules in twenty-two state and federal jurisdictions. By the late 1970s Frankel’s tentative proposals had been substantially filled out by other writers and reformers; the two most common guidelines models were adopted by Minnesota (1980) and Pennsylvania (1982). The federal guidelines (1987) have been justly criticized, but most state guidelines have been accepted by judges and other practitioners and observers. This sentencing reform model has also been endorsed by the American Bar Association and the American Law Institute. This essay tells the story of how Judge Frankel’s proposal evolved, where and how it was adopted, and how well it has stood the test of time. The essay concludes that Frankel’s critique of unregulated judicial and parole discretion was, and is, correct—such lawless, haphazard deprivation of offenders’ liberty and life chances is unacceptable in any legal system claiming to be governed by the rule of law. The essay further argues that well-developed guidelines, based on Frankel’s elaborated proposal and as implemented in several states, provide the best and indeed the only proven way to meaningfully address the problems of sentencing and parole disparity that Frankel so eloquently identified. But he would want and expect guideline systems to continue to evolve, thoughtfully and steadily coming closer to the shared goals of fair, balanced, and cost-effective punishment. The essay therefore proposes several further reforms, any of which would improve even the best state guideline systems.
Richard Frase,The Partial Success of Judge Frankel’s Sentencing Commission, Fifty Years On, 35 Federal Sentencing Reporter 240–248 (2023)