Unwarranted disparity in the wake of the Booker/Fanfan decision

• Date: 01 November 2011
• DOI: http://doi.org/10.1111/j.1745-9133.2011.00768.x
• Published date: 01 November 2011
• Author: Cassia Spohn

POLICY ESSAY

RACIAL DISPARITY IN WAKE OF THE

BOOKER/FANFAN DECISION

Unwarranted disparity in the wake of the

Booker/Fanfan decision

Implications for research and policy

Cassia Spohn

Arizona State University

In 1972, Marvin Frankel, U.S. District Judge for the Southern District of

New York, issued an influential call for reform of the federal sentencing process

(Frankel, 1972a, 1972b). Judge Frankel characterized the indeterminate sentenc-

ing system that existed at that time as “a bizarre ‘nonsystem’ of extravagant powers

confided to variable and essentially unregulated judges, keepers, and parole officials”

(Frankel, 1972b: 1; see also Gertner, 2007). Frankel was particularly concerned about

the degree of discretion given to judges, which he maintained led to “lawlessness” in

sentencing. Claiming that judges “were not trained at all” for “the solemn work of

sentencing” (Frankel, 1972b: 6), Judge Frankel called for legislative reforms designed to

regulate “the unchecked powers of the untutored judge” (Frankel, 1972b: 41). More

to the point, he called for the creation of an administrative agency called a sentencing

commission that would create rules for sentencing that judges would be required

to follow.

Congress responded to Judge Frankel’s call for reform of federal sentencing by enacting

the Sentencing Reform Act of 1984 (SRA). The SRA created the United States Sentencing

Commission (USSC), which was authorized to develop and implement presumptive

sentencing guidelines designed to achieve “honesty,” “uniformity,” and “proportionality”

in sentencing (USSC, 2001). The Act also abolished discretionary release on parole, stated

that departures from the guidelines would be permitted only with written justification,

and provided for appellate review of sentences to determine whether the guidelines were

Direct correspondence to Cassia Spohn, School of Criminology and Criminal Justice, Arizona State University,

411 N. Central Avenue, Phoenix, AZ 85004 (e-mail: Cassia.Spohn@asu.edu).

DOI:10.1111/j.1745-9133.2011.00768.x C2011 American Society of Criminology 1119

Criminology & Public Policy rVolume 10 rIssue 4