Marvin Frankel’s Mistakes and the Need to Rethink Federal Sentencing

Abstract

In this article, we criticize the ideas of Marvin Frankel, a former law professor and judge, who is generally considered to be the intellectual father of the federal sentencing guidelines. We argue that the flaws in Frankel’s approach to sentencing led directly to the failure of the guidelines. We welcome the recent Supreme Court decisions expanding district judges’ sentencing discretion but express doubt that they will be sufficient to eliminate the excessive harshness of the present system. Finally, we advocate establishing a system of discursive rather than numerical guidelines.

Keywords: Frankel, federal sentencing, federal sentencing guidelines, reform of federal sentencing