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The Quest for Equality in Sentencing*

Published online by Cambridge University Press:  16 February 2016

Marvin E. Frankel
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Extract

Any system of justice purporting to be civilized must pursue two basic principles: (1) that people similarly circumstanced are to be treated equally under the law; (2) that people administering the law are not permitted to act arbitrarily or to prescribe individually the rules governing their actions and decisions. Both of these principles were persistently violated through well over half the twentieth century in the sentencing of people for crimes in the United States. The steady violations were produced by a combination of sentimental good intentions, puritanical severity and irrational misconceptions concerning the effects of punishment and the capacity of those commissioned to administer punishment. As the century wanes, the long course of error has been identified. This is a time of intensive sentencing reform. We are vexed now in a familiar way by doubts about the efficacy and the side effects of the reforms.

Type
Determining Penalties (1): Criteria for Sentencing
Information
Israel Law Review , Volume 25 , Issue 3-4 , Summer–Autumn 1991 , pp. 595 - 606
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1991

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References

1 See Cook, , “Sentencing Behavior of Federal Judges: Draft Cases — 1972” (1973) 42 U. Cincinnati L. R. 597Google Scholar; Frankel, “Comments of an Independent, Variable Sentencer”, id., at 667.

2 See von Hirsch, A., Knapp, K. & Tonry, M., The Sentencing Commission and Its Guidelines (1987) 5–6Google Scholar.

3 Frankel, M., Criminal Sentences — Law Without Order (1973) 119Google Scholar.

4 See id., at 118-124.

5 M. Tonry, “Sentencing Guidelines and Their Effects”, in von Hirsch et al., supra n. 2, at 42.

6 See von Hirsch et al., supra n. 2, at 84 et seq.; Frankel, M. and Orland, L., “Sentencing Commissions and Guidelines” (1984) 73 Geo. L. J. 225Google Scholar.

7 Interestingly and importantly, some factors are specified with the directive that they are not to be deemed material — i.e., are not grounds for departure. These include race, sex, employment, education and the exercise by the defendant of constitutional rights during the adjudicative process. The policy judgments underlying these exclusions are evident for the most part.

8 Like most aspects of the subject, this one is not uncontroversial. Why should the decision to incarcerate a defendant — or for how long — be influenced by the amount of available prison space? How can that affect the question of a just punishment, an effective deterrent or any other valid sentencing criterion? The shortest answer to such questions may have been given by Durkheim when he observed that crime is identified and defined by the “collective conscience” as a matter of “normal sociology”. See the excerpt, “Crime as a Normal Phenomenon”, in Radzinowicz, L. and Wolfgang, M. eds., Crime and Justice (2nd ed., 1977) vol. 1, p. 657Google Scholar. A fuller answer would include the gratifying fact that we have come, in the last generation or so, to acknowledge enforceable rights of prisoners to some minimum level of decency in the conditions of their confinement.

9 Earlier drafts had been published and distributed for criticism by judges, scholars and other interested people. The critiques had led to extensive revisions and even changes in basic theory along the way.

10 In the event, the delay requested by the Commission was not granted and the guidelines became effective on November 1, 1987. As indicated in the subsequent paragraphs of the text, debate about the Commission's work has continued. Sentencing judges appear to be particularly unhappy with the system, many regretting the loss of their former discretion, others proceeding from what may be sounder motives and premises.