Books Thrown and the Misunderstood Legacy of Judge Frankel

His words were uttered at a time when the issue of consistency made not only different sense, but carried different meaning. They were thrown at me by a former federal defender, about to take his new job as a budding law prof, and he took comfort in the United States Sentencing Guidelines. This was jarring. When did the defense find the sentencing guidelines their friend?

It came in response to my “modest proposal” for crim law reform, that we roll back everything about the system, from laws to sentencing to police, to May, 1973. Oddly, no one either asked why May, 1973. But his response was surprising.

Cool idea, except for all their problems I wouldn’t want to give up on (non-binding) sentencing guidelines. Sentencing in 1973 was so discretionary Judge Frankel called it “the antithesis of a system of law.”

The judge was Marvin Frankel of the Southern District of New York. He was appointed in 1965 by Lyndon Johnson and left the bench in 1978 and became a partner at Kramer, Levin. The reference was to a New York Times article from 1973 in which Judge Frankel shredded federal sentencing as lawless, a shocking article since federal judges didn’t speak openly about their work and almost never critically.

His point, that there were no brakes on federal discretion, meant that wildly disparate sentences would be imposed from district to district, or even by judges within a district. And it was true that one judge might give probation while another gave ten years. It was, very much, the wild west. But the context was that SDNY was a more rational, more reasonable, cadre of judges,* unlike judges down south for whom a sentenced imposed on a poor black man would be ten times, 100 times, that imposed on a white man.  Consistency was, to Judge Frankel, of critical doctrinal importance, and he was a huge proponent of the Sentencing Guidelines to achieve that consistency.

But then, would consistency have been important enough for the enactment of his dreamed guidelines had he known that when they were created, sentences of outrageously extreme length would be mandated? They were supposedly empirical, based on some scientific process to determine what the normal sentence for a crime would be, and increased or decreased based on the factors that real judges took into account.

This was a lie. They just made it all up, and over the period between Mistretta (1989) and Booker (2005), when the guidelines were mandatory, these absurdly long sentences became normalized, such that newer lawyers, prosecutors, judges, believed that the “consistent” sentences fixed were proper sentences. This is why people now believe that life plus cancer carries some sort of magic as if handed down from god as the “right” sentence for people we hate.

And federal defenders don’t realize this? New prawfs don’t realize this? It’s not that Judge Frankel didn’t have a point about wildly disparate sentences, but he never meant that everybody getting 121 months mandatory minimum was the lawful fix. It occurred to me that Judge Frankel, who died in 2002, wasn’t a living, breathing person to this new prawf, but a mythic historical figure.

His brethren at SDNY uniformly held his beloved sentencing guidelines unconstitutional when they were enacted, which ended with the Supreme Court’s misguided decision in Mistretta. It was the darkest of days for the criminal defense bar, and the next day a line formed around the block at 1 St. Andrews Plaza of defendants and their lawyers waiting to snitch on their mothers, fathers and brothers. It was the only way out of life plus cancer.

Today, there are two young lawyers being held for charges of throwing a Molotov cocktail into an empty police cruiser. There was a cry of outrage that these two very progressive lawyers could spend “up to” 45 years in prison. It’s a max sentence and meaningless in terms of reality, but it made for a sufficient talking point to generate outrage. After all, even if the act involved wasn’t exactly okay, their motives were pure, their goal laudable to the woke. They weren’t terrorists, it was argued, even if they did that thing terrorists do.

Today, there are four men charged with damaging federal property for trying to topple a statue of Andrew Jackson in Washington, D.C. He was a terrible president, and, it’s alleged, these four decided it was up to them to bring his statue down, even though it’s a federal crime. This prompted a former government lawyer to speak out.

It’s really shameful that the federal government is throwing the book at these guys so Trump can tweet about it.

Is charging people, who were allegedly caught on video doing what they’re being charged with, “throwing the book” at them? Had these been Klansman tearing down a statue of Martin Luther King, would he feel the same way? Perhaps. But regardless, when is the right time to consider laws, consider sentences, consider consistency and consider that the same conduct that’s done by those you despise remains just as criminal when done by those you kinda love a lot? Judge Frankel wasn’t entirely wrong about consistency, but it’s not just sentencing, but prosecution, that’s affected. If it’s a crime when your enemies do it, it’s a crime when you feel closer to the mob than the president.

*The judges of the SDNY were a stodgy bunch, made up mostly of old lawyers from white shoe firms, some of whom were being put out to pasture to get their non-producing butts off the partnership rolls. It was by no means “liberal” in the sense we think of today, but then no federal court was. Still, it wasn’t nearly as bad as other districts, so the general range of federal judges on sentencing was bad to horrifically bad.

But then, fed judges, who had never done a criminal case in their lives, were first dealing with crimes, which were almost entirely the province of state courts until then. The hallways of federal courthouses were spotless, no nasty criminals darkening their marble.

11 thoughts on “Books Thrown and the Misunderstood Legacy of Judge Frankel

  1. Jacob Schuman

    Thanks for this response! Two thoughts (one of which I shared briefly on Twitter):

    1. I agree the USSG as written are far too harsh. But I see that as a problem of calibration. Non-binding guidelines that recommended lower sentences/more probation would be an improvement on 1970s-style total discretion. I understand your argument to be that the guidelines “normalized” long sentences between Mistretta and Booker because they carried the whiff of authority. But more lenient guidelines would have the opposite effect. Why should consistency inevitably lead to increased severity?

    2. I’ll bite and ask why you picked May 1973 as the date to which you’d turn back the criminal-justice clock?

    1. SHG Post author

      You know the old adage, “a foolish consistency is the hobgobblin of small minds”? Every case, every defendant, is different, and every sentence should be formulated to meet the legitimate purpose of sentencing (which are somewhat reflected by the 3553 factors, but not very well). I appreciate Judge Frankel’s concerns about disparity, but elevating consistency over the sentence that best fulfills its purpose is a foolish consistency.

      I’ve no doubt he meant well in ’73, when inconsistency seemed to be the worst problem, but as we’ve learned since, harsh consistency is far worse than a fighting chance at a fair sentence, even if that means there will be wildly disparate sentence. There’s no magic about prison that makes one length of time correct and another incorrect.

      As for May, 1973, that was when the Rockefeller Drug Laws went into effect. They were an interesting experiment at the time. They failed miserably. They were ground zero for the notion that if one year didn’t work to end drugs, maybe ten years would be better.

    2. Richard Kopf

      Mr. Schuman,

      In general, and as Scott knows, I am with you on the Guidelines. That is so almost entirely because of my concern for sentencing disparity. And that is true even though my reasoning might properly be seen as watery gruel both theoretically and (as I point out below) practically.

      You raise an interesting point. And then you make an assertion:

      “I understand your argument to be that the guidelines ‘normalized’ long sentences between Mistretta and Booker because they carried the whiff of authority. But more lenient guidelines would have the opposite effect.”

      Is your suggestion true in practice? Even with “lenient” Guideline Amendments regarding drugs, this is what the Sentencing Commission recently found:

      “Guideline amendments intended to promote uniformity by addressing judicial concerns regarding severity have had an inconsistent impact on inter-district disparity. Specifically, despite multiple significant revisions to the drug trafficking guideline, including the two-level reduction of the base offense level for all drugs, districts increasingly diverged in their sentencing practices for drug trafficking offenders.”


      What this means of course is that despite amendments some judges are still hitting defendants hard. The report adds:

      “These significant changes have not reversed the slow increase in variations among the districts in relation to sentencing practices for drug trafficking offenders. . . . While many of the guideline revisions discussed above were specifically addressed toward crack offenders, differences in sentencing practices relating to sentencing of those offenders has increased in each period, with the total spread increasing from 34.1 to 37.6 and then to 55.1 and standard deviation increasing from 7.6 to 9.9 to 12.9.”

      Id. at p. 31.

      Federal District Judges by and large think each one knows best. In the sentencing realm that institutionalized narcissism causes chaos. I am beginning to think that Jettisoning the Guidelines makes sense if only to be honest. Dear defendant: Its crap shoot.

      But what do I know?

      All the best.


      *By the way, the entire report is extremely well done and worth reading, albeit that doing so is a slog.

      1. SHG Post author

        And you didn’t even mention the ratcheting up of “normal” sentences over the 30 years since Mistretta, where baby federal judges never knew that 121 months wasn’t always the base for anybody in a drug conspiracy, such that leniency today is 10 years rather than 20, as opposed to the year and a day before the Guidelines.

        1. Richard Kopf


          1. In 1980, the average prison federal drug sentence was 54.6 months. As of 2011, the average federal prison drug sentence climbed to 74.2 months. Pew, Federal Drug Sentencing Laws Bring High Cost, Low Return, pg. 1 (August, 2015).

          2. And: “Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades. Id. (footnote omitted).

          If nothing else, while putting these two statistics together, one can vigorously argue that incapacitation ought to be given greater attention since a large segment of federal drug offenders will violate the law again if released earlier.*

          By the way, and I suppose because I am not a baby judge, you get no argument from me about statutory minimums. All the best.


          * Interestingly, during this time frame–1980 and 2015–the average federal prison sentence for all other offenses fell (48.9 months vs. 47.3 months).

          1. SHG Post author

            In the good old days (pre-Mistretta), there were fewer cases, fewer conspiracy cases, fewer BS conspiracy cases, fewer manufactured conspiracy cases and half the list of defendants didn’t flip on the other half. And we still had trial, so convicted defts paid the trial tax. The post-Mistretta average length should have been the same or lower, since after ’89, half were rats. Just goes to show how little a 5K1.1 does for a snitch.

            Then again, it could also be my bias from never having a drug case that didn’t have 121 as a starting minimum. A few thousand kilos will do that.

      2. Jacob Schuman

        Judge Kopf,

        Thanks very much for your response and for recommending the report, which I’ll attempt to slog through.  I’m not surprised inter-district variation has continued to rise since Booker.  That’s the ongoing price of making the guidelines non-binding.  But in my opinion, it’s an improvement on total judicial discretion at sentencing.  

        While the report shows that the 2-level reduction for drug offenses was followed by increased sentencing disparities, it does not say (as far as I can tell) whether the average drug sentence increased or decreased during that time period.  Page 25 suggests that a substantial proportion of the disparities have come from judges varying downward, not upward, from the guidelines.  If the average drug sentence has decreased since the amendment, that would be evidence that more lenient guidelines can lead in practice to more lenient sentences.  I googled around a bit to see if those numbers are available, but couldn’t find anything at first glance.  I’ll keep looking for an answer.

        Of course, no sentencing system can achieve perfect uniformity and perfect proportionality, as one value inevitably comes at the cost of the other.  In my view, a non-binding guidelines system strikes the best balance.  I’d dramatically recalibrate the USSG (reduce the recommended prison terms, boost probation, cut back on supervised release, etc.) but I still think the basic concept of sentencing guidelines are sound.

        1. Miles

          When the guidelines were established, they were absurdly Draconian made-up numbers for the sake of consistency. They made it easier for judges, who could look at a grid rather than take responsibility for their sentences, and pretend they weren’t responsible for the years imposed because the grid told them so.

          Your only issue is that you want to make up your own preferred numbers, but still want guidelines to make it easy and consistent even if there’s no substantive basis for any of it? So you’re just Bill Otis lite? We’re doomed.

          1. SHG Post author

            There’s a certain adoration for rules, and intolerance for ambiguity, that I can’t quite explain. As if sentencing wasn’t just voodoo no matter what a grid says.

  2. John Barleycorn

    Weird shit happens when you send in the national guard to break up a prison riot and then take an interest in Japanese legal culture.

    Too bad Nancy Reagan and Nelson’s psychics were so incompetent, but in the end I blame Henry Kissinger

    P.S. Whatever happened to the Rockefeller salute? Politics should have permanently adopted that Kaputz bravado, it makes the medicine go down so much more “smoothly”…

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