Document Type
Essay
Publication Date
2025
Publication
Florida State University Law Review
Volume
52
Abbreviation
Fla. St. U. L. Rev.
First Page
453
Abstract
One of the traits that I admired most about Dan Markel was that he held legal scholarship to a very high standard. Whether it was his own work or the work of others, he believed that our work could only improve if we insisted on giving each other critical feedback.
It has been a decade since Dan’s tragic death. And while a Festschrift is ordinarily seen as an opportunity to praise the work of one’s colleagues, I want to celebrate Dan Markel in the way that I imagine he would respect most—by providing critical feedback about his work. In particular, I plan to address a major theme in his work—his commitment to equal treatment under the law. This commitment led Markel to criticize several features in the criminal justice system and in the criminal law literature, including indeterminate sentencing and dispensations of mercy.
While equal treatment under the law would seem to be an unobjectionable principle that most every law professor should support, I have serious reservations about making equal treatment a primary goal in punishment decisions. My reservations stem from a belief that the pursuit of equal treatment will often come at the expense of justice, especially if the pursuit for equal treatment includes the creation of ex ante rules about punishments. In light of this belief, I find myself in disagreement with Markel’s rejection of indeterminate sentencing. That disagreement is discussed in more detail below.