High Court Justice Crusades for Mercy
He Calls Sentences Too Severe, Too Long

BOB EGELKO / SF Chronicle 10aug03

San Francisco—U.S. Supreme Court Justice Anthony Kennedy, in a striking departure from his court's and the Bush administration's hard line on crime, criticized the nation's imprisonment policies Saturday and called for the repeal of mandatory-minimum sentences for federal crimes.

"Our resources are being misspent. Our punishments are too severe. Our sentences are too long," Kennedy said in a speech at the American Bar Association convention in San Francisco.

Mandatory-minimum sentences are an increasingly common feature of federal laws, particularly drug laws, and require prison terms of a specified number of years for defendants convicted of particular crimes, regardless of the sentencing judge's views.

In congressional testimony this spring, Kennedy said mandatory minimums can produce "harsh and unjust" results. He went a step further Saturday and urged elimination of all such laws.

The ABA, the nation's largest lawyers' organization, should tell Congress, "Don't take discretion away from the courts," Kennedy said, to applause from the audience at Davies Symphony Hall. "Let judges be judges."

He noted that 2.1 million people are behind bars in the United States—more than 160,000 of them in California—and that about 1 American in 143 is incarcerated, compared with 1 in 1,000 in many European countries. About 10 percent of African American men age 25 to 29 are behind bars, Kennedy said.

"Every day in prison is much longer than any day you've ever spent," he said.

Kennedy, 67, a Sacramento native appointed to the court by President Ronald Reagan in 1988, usually votes with the court's conservative bloc but is known to switch sides in cases involving free speech and some social issues. He was the author of the stunning 6-3 decision issued June 26 that overturned sodomy laws in Texas and 12 other states and declared that gays and lesbians were entitled to their "dignity as free persons."

But he has generally sided with prosecutors in criminal cases, including a pair of 5-4 decisions in the court's last term that upheld California's "three strikes and you're out" sentences of 25 years to life in prison for shoplifters with long criminal records.

His speech, the keynote address at the annual meeting of the 410,000-lawyer ABA, was more pointed and critical than the generalities usually offered in speeches by Supreme Court justices. It also sharply conflicts with the Bush administration's latest initiatives on crime and punishment.

Even as the Justice Department reported last month that the nation's prison population had increased 2.6 percent in 2002 despite a slight drop in serious crime, Attorney General John Ashcroft ordered federal prosecutors nationwide to increase their efforts to obtain longer sentences.

Citing a new law sponsored by the Justice Department, Ashcroft told prosecutors to notify department officials of all cases in which a federal judge imposed a sentence substantially below standard federal guidelines, so that officials could decide whether to appeal. He also cautioned against overly lenient plea agreements.

Justice Department officials could not be reached for comment Saturday on Kennedy's speech.

In his speech, Kennedy said he agrees with the need for federal sentencing guidelines—established by federal law in 1984 to make sentences more uniform—but believes they are too severe and should be shortened.

In contrast to the guidelines, which allow judges some flexibility, mandatory minimums are virtually ironclad.

"I can accept neither the wisdom, the justice nor the necessity of mandatory minimums," Kennedy said. "In all too many cases, they are unjust."

He described the hypothetical case of a young man with no serious criminal record arrested on federal property with 5 grams of crack cocaine—requiring at least a five-year prison sentence under federal law, but only months in jail under most state laws. Such laws effectively shift sentencing decisions to the prosecutor, who decides whether to file charges that carry mandatory minimums, Kennedy said.

Kennedy also said the ABA should seek to "reinvigorate the pardon process" for state and federal prisoners. Kennedy did not mention controversies over former President Bill Clinton's pardons of some campaign contributors but observed that pardons overall have become infrequent.

"A country which is secure in its institutions and confident in its laws should not be ashamed of the concept of mercy," he said.