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

Abstract

November 1, 2007, marked the twentieth anniversary of the effective date of the federal sentencing guidelines. As far as we know, no one held any celebrations commemorating the occasion. Students of federal sentencing generally agree that at least prior to United States v. Booker, the guidelines failed. Two scholars called the guidelines “one of the great failures at law reform in U.S. history.” Another characterized them as the most “disliked sentencing reform initiative in this century,” and a fourth stated that “[d]espite its hopeful beginnings, the federal sentencing system as constituted before Booker failed.” The sequence of events that led to the guidelines is well known to students of federal sentencing. After debating the issue of sentencing for a number of years, Congress enacted the Sentencing Reform Act of 1984 (“SRA”), in which it abolished parole, provided for appellate review of sentencing, created the United States Sentencing Commission (“Commission”) and directed the