Parsing Sentences

"The almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law."

The observation might do credit to the most radical of ex-convicts and criminal lawyers. Instead, it is the product of thoughtful reflection by U.S. District Court Judge Marvin Frankel. After seven years on the federal bench in New York City, Frankel found himself appalled by "the unbridled power of the sentencers [including himself] to be arbitrary and discriminatory." He considered the problem in his off-the-bench time, then produced an informative monograph closely analyzing what is wrong with the current approach and suggesting what can be done to repair it. Published last month, Criminal Sentences/Law Without Order (Hill & Wang; $5.95) is a cogent, sometimes savage commentary.

"To begin at the elementary beginning," writes Frankel, legislators do not really tell judges the objectives of punishing or what the punishment should be. Thus judges typically have only broad guidelines: "not more than 25 years"; "from five years to life." In theory, says Frankel, this is supposed to give judges necessary leeway to fit the punishment to the offender, not merely to the crime. In fact, however, it allows "sentences to be 'individualized' not so much in terms of defendants, but mainly in terms of the wide spectrums of character, bias, neurosis and daily vagary encountered among occupants of the trial bench." For a given defendant, then, his sentence depends less on the demands of justice than upon which judge he draws.

Frankel complains that judges will spend days considering lengthily briefed points of law but rarely devote more than an hour to deciding a man's sentence. "My point is that there is rarely, if ever, much to take longer about," he says. "There are virtually no rules or tests or standards--and thus no issues to resolve. The judgment is swift because the process of reaching it is not reflective or orderly."

For just that reason, some reformers have urged that sentencing be done not by judges but by officials more closely familiar with prisoners, for instance parole authorities. Indeed California and a few other states have adopted a so-called "indeterminate sentencing" policy under which an offender stays in jail for as long or as short a time as penal officials think necessary for rehabilitation. Frankel thinks that this much-touted liberal reform amounts merely to passing the power of abuse along. Besides, he notes, the hard truth is that there is no successful prison rehabilitation to speak of.

Implicit in all the failure to articulate any across-the-board sentencing principles is the unspoken notion that such formulations are impossible. Frankel disagrees and confronts the problem directly. The trial process, he reminds, is carefully and intentionally bound by all sorts of rules and rights that are meant to apply equally to every man. Similar standards can and should be devised for sentencing. To start the process, Frankel would require a judge to confer with two colleagues on each sentence. That tactic is already followed in three federal districts, and has tended to end overly lenient and barbarous extremes. Frankel would also make all sentences subject to appeal, contrary to the current prevailing practice. Both conferences and appeals, in his opinion, would bring greater rationality to the undertaking because the scrutiny of other jurists would force the sentencing judge to think about and possibly clarify his reasons for settling on a specific term.

Beyond such measures, Frankel urges that all the variants and imponderables in sentencing be sorted out and specified as completely as possible. As a judge, he wants precise guidelines so that he will know, for instance, that deterrence and societal condemnation are meant to determine the length of a Mafia bigwig's sentence. For a young purse snatcher, on the other hand, rehabilitation might be the mandated goal, with a resulting effect on how long and where the offender should be imprisoned. Frankel also wants to know the extent to which a plea of guilty should mitigate the term imposed, and exactly how much weight should be assigned to the "gravity of offense." In short, he wants to spell out the very things now abandoned to a judge's discretion. "We do not allow each judge to make up the law for himself on other questions. We should not allow it with respect to sentencing."

Mindful that the complexity of such concerns is "not steadily exhilarating to elected officials," Frankel proposes the creation of a commission, like the FCC or ICC, with power to do the continuing work of establishing and amending sentencing standards--subject to legislative review and reversal. In forthright pursuit of the public support necessary for such a reform, Frankel, a former Columbia University law professor, has kept his graceful prose entirely comprehensible to the interested layman. His book succeeds so well that for their widespread failure to correct the aberrations he tellingly examines, lawyers, legislators and laymen alike should all be sentenced to read it.

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