Albert W. Alschuler (University of Chicago Law School) has posted Be Careful What You Wish For (Federal Sentencing Reporter) on SSRN. Here is the abstract:
This article will appear in an issue of the Federal Sentencing Reporter marking the 50th anniversary of Judge Marvin Frankel’s influential book, Criminal Sentences: Law Without Order. Although the article applauds many of Frankel’s criticisms of sentencing practices, it maintains that the reforms he championed failed to advance the goal of greater certainty in sentencing. These reforms concentrated discretion in hands of prosecutors, who were less likely to exercise their power wisely than the judges whose authority was restricted, and Frankel’s reforms increased the pressure on defendants to waive their rights. The article describes how these reforms contributed to mass incarceration, and it considers how today’s sentencing guidelines might have altered Judge Frankel’s determination of sentence in the 1976 “heater” case of Rabbi Bernard Bergman.