Faculty Bibliography

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.

In recently-enacted legislation, Congress drew upon the 35-year experience with sentencing reform in the federal civilian criminal courts to reform significant aspects of the sentencing process in the military justice system. The article reviews the sentencing reform provisions contained in the National Defense Authorization Act for FY2022 and the Military Justice Act of 2016, which address many of the core elements of sentencing, including: (1) the principles governing sentencing in courts-martial; (2) the use of sentencing “parameters” and “criteria” in the adjudication of sentences by general and special courts-martial; (3) the role of the military judge in the adjudication of sentences; (4) consideration of plea agreements at the trial level; (5) appellate review of sentences; (6) clemency and related actions on the sentence, and more. After summarizing the history of military and civilian sentencing, the article reviews the newly-enacted military justice sentencing provisions, comparing them to the relevant provisions in the federal civilian sentencing system that were enacted as part of the Sentencing Reform Act of 1984 and subsequent legislation, and implemented by the U.S. Sentencing Commission. Although some of these newly-enacted reforms mirror similar elements of the federal civilian sentencing system, others follow a different approach, reflecting a decision by Congress to adapt rather than simply adopt current civilian practices. As Congress, the Administration, and a new Sentencing Commission focus on criminal justice reform, including possible changes to civilian sentencing law and policy, the recent reforms in military justice sentencing provide an important source of insights worthy of consideration.