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August 9, 2003 - From MSNBC.com

Justice Anthony M. Kennedy: End Minimum Sentences

Supreme Court justice says they take discretion from judges, forestall mercy

By Pete Williams, NBC News Correspondent

(The full text of Justice Kennedy's speech is available here.)

Aug. 9 - U.S. Supreme Court Justice Anthony Kennedy called on Congress Saturday to end mandatory minimum sentences, which he says are unwise and unjust, jamming U.S. prisons with young people who lose all hope.

Kennedy's call, in a speech prepared for delivery to the American Bar Association in San Francisco, is surprising, coming from a justice who is generally conservative on criminal justice issues. Justice Stephen Breyer, a Clinton appointee, also favors abolishing them, but he's considered more liberal.

Kennedy acknowledged that some prisoners are repeat offenders and simply cannot be rehabilitated.

"We must try, however, to bridge the gap between proper skepticism about rehabilitation on the one hand and improper refusal to acknowledge that the more than 2 million inmates in the United States are human beings whose minds and spirits we must try to reach," he said.

The incarceration rate in the United States is about 1 out of every 143 persons. By contrast, Kennedy said, it's only 1 in 1,000 in England, France, Italy and Germany. Another problem, according to Justice Kennedy, is that prosecutors can essentially dictate a sentence by deciding whether to bring charges that carry mandatory minimums.

"In my view, a transfer of sentencing discretion from a judge to an assistant U.S. attorney, often not much older than the defendant, is misguided. The policy gives the decision to an assistant prosecutor not trained in the exercise of discretion and takes discretion from a trial judge," he said.

He also called on ABA lawyers to recommend reinvigorating the state and local pardon processes to help those serving under mandatory sentences.

"A people confident in its laws and institutions should not be ashamed of mercy," he said.

Kennedy also issued a broader call to lawyers to get more involved in helping criminal defendants once they're sentenced. Too often, he said, "when the door is locked against the prisoner, we do not think about what is behind it."

His remarks come as many federal judges complain about new limitations on their ability to impose sentences that are lower than normal for a given crime. Restrictions on such "downward departures" were imposed in a law passed by Congress in April.

Since then, Attorney General John Ashcroft has directed the nation's federal prosecutors to notify the Justice Department in Washington whenever judges issue sentences that fall below the normal guidelines. Officials will then consider whether to appeal the lighter sentences.

Kennedy, appointed by President Ronald Reagan, has been on the high court since 1988.

August 11, 2003 - Associated Press

Justice Kennedy against minimum prison terms

SAN FRANCISCO, California (AP) -- Supreme Court Justice Anthony M. Kennedy has said that prison terms are too long and that he favors scrapping the practice of setting mandatory minimum sentences for some federal crimes.

"Our resources are misspent, our punishments too severe, our sentences too long," Kennedy told the annual meeting of the American Bar Association, his remark met by long applause.

"I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences," Kennedy said. "In all too many cases, mandatory minimum sentences are unjust."

Kennedy is a moderate conservative placed on the court by former President Ronald Reagan. His criticism puts him at odds with Attorney General John Ashcroft, who wants prosecutors to closely monitor which judges impose more lenient sentences than federal guidelines recommend. Such oversight, critics say, could limit judicial independence.

Kennedy said he agrees with the need for federal sentencing guidelines. The 15-year-old system gives judges a range of possible punishments for most crimes and eliminates some of the disparities in terms imposed by different judges for the same crime.

Still, the guidelines lead to longer prison terms than were common before, Kennedy said.

"We should revisit this compromise," he said. "The federal sentencing guidelines should be revised downward."

Prosecutors often ask for sentences at or near the top of the guideline range, and defense lawyers ask for terms at or even below the bottom. Judges have some freedom to "downwardly depart," from the guidelines and hand down a lesser punishment.

Ashcroft recently directed U.S. attorneys to promptly report to Justice Department headquarters any such departures that are not part of a plea agreement in exchange for cooperation.

"The Department of Justice has a solemn obligation to ensure that laws concerning criminal sentencing are faithfully, fairly and consistently enforced," Ashcroft wrote in a memo issued July 28.

Kennedy did not address Ashcroft's directive.

The justice asked the ABA to lobby Congress to repeal mandatory minimum sentence laws, even though they have withstood court scrutiny.

"The court on which I set and other courts have upheld long sentences, but please remember because a court has said something is permissible does not mean it is wise," Kennedy said.

Kennedy voted with the Supreme Court majority this year to uphold California's toughest-in-the-nation law mandating 25-year minimum prison terms for three-time felons.

Kennedy also urged the ABA to consider working to extend pardons for state and federal prisoners serving harsh terms.

"The pardon process, of late, seems to have been drained of its moral force. Pardons are infrequent," Kennedy said. "A people confident in its laws and institutions should not be ashamed of mercy."

Kennedy asked lawyers to think about the consequences of the current prison system, including what he called its "remarkable scale" of about 2.1 million people behind bars nationwide and the fact that about 40 percent of the prison population is black.

"It is no defense if our current system is more the product of neglect than of purpose," Kennedy said. "Out of sight, out of mind is not acceptable for any part of our justice system."

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