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Jonathan J. Wroblewski, Marvin, through the Looking-Glass, 35 Fed. Sent'g Rep. 304 (2023).

Abstract: In the summer of 1985, I had a chance meeting with Marvin Frankel. It would begin a career-long adventure into the world of federal sentencing, a looking-glass world where acquittals lead to punishment, rapes and robberies are not violent crimes, prosecutors gain sentencing power from courts, and numeric algorithms transform common sense punishment concepts into disfigured policies that often drive excessive and deficient sentences; and then, even worse, the system drives a perpetual cycle of further disfigurement. The U.S. Sentencing Commission’s reaction to Frankel’s book, Criminal Sentences: Law Without Order, was an attempt to create a criminal sentencing world with order. And while that idea is without doubt alluring, what resulted from the federal commission’s work was mostly “delusions of precision,” an accounting system of aggravating and mitigating factors that tries to achieve something approaching “perfect justice” but rather twists sensible sentencing concepts into flawed formulas. Frankel envisioned a world not of perfect justice, but of the humble search, “tentatively and with diffidence” for an elusive justice, a search made a little easier with simple and understandable guidelines. As a new federal Sentencing Commission considers the course it will take in crafting federal sentencing policy for the next 50 years, and as we celebrate the 50th anniversary of the publication of Marvin Frankel’s historic book, it’s worth considering Frankel’s vision anew.