Be Careful What You Wish For

Authors

Albert W. AlschulerFollow

Publication Date

2023

Publication Title

Public Law & Legal Theory

Abstract

[A]ny change in sentencing practices is likely to be an improvement. Judge Marvin Frankel in 1973 ¹

Fifty years ago, Marvin E. Frankel published an elegant, timely, and extraordinarily influential book, Criminal Sentences: Law Without Order. Four years after this book called for the appellate review of sentences and for greatly limiting the discretion of both sentencing judges and parole boards, California became the first state to limit sharply judicial sentencing discretion and abolish parole.²

Twenty other states joined the reform movement before Congress embraced the move from individualized to wholesale sentencing in 1984.³ The Sentencing Reform Act of that year⁴ abolished parole, created the United States Sentencing Commission, and directed this body to create mandatory sentencing guidelines⁵ in which “the maximum of the range established for [every term of imprisonment] shall not exceed the minimum . . . by more than the greater of 25 percent or six months.”⁶ Judge Frankel wasn’t alone in urging a major restructuring of American sentencing,⁷ but he merited the title Senator Ted Kennedy bestowed on him: the “father of sentencing reform.”⁸

Frankel was as wise and generous a friend as I’ve had⁹ —a superb role model for me and many others.¹⁰ But I was skeptical of his proposals 50 years ago, and I haven’t changed my mind.

Recommended Citation

Albert W. Alschuler, "Be Careful What You Wish For" (June 5, 2023). Public Law and Legal Theory Working Paper Series, Forthcoming.