Posted on 08/09/2003 10:36:06 PM PDT by Pikamax
Justice Kennedy Attacks U.S. Sentencing Mandates Sat August 9, 2003 10:37 PM ET By Gail Appleson, Law Correspondent SAN FRANCISCO (Reuters) - U.S. Supreme Court Justice Anthony Kennedy called on Saturday for the end of mandatory minimum prison terms and urged the reduction of federal sentencing guidelines.
His comments to the American Bar Association (ABA) are the latest salvo in the judiciary's battle with Congress and the Justice Department to keep its independence.
While the justice said he believes there is a need for guidelines, "I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases mandatory minimum sentences are unwise and unjust."
He urged ABA members to ask Congress to repeal federal mandatory minimum sentences and "let the judges be judges."
His speech at the group's annual meeting came shortly after U.S. Attorney General John Ashcroft directed federal prosecutors to report on judges who issue lighter sentences than what is recommended by the federal sentencing guidelines.
"Our resources are misspent; our punishments too severe, our sentences too long," Kennedy said.
While the guidelines were and are necessary to reduce the disparity among sentences given by different judges, they have also led to an increase in prison terms, he said.
"The federal sentencing guidelines should be revised downward," Kennedy said.
In 1987, guidelines were adopted to make federal sentencing more uniform, with judges given some discretion. But Congress has also mandated minimum prison terms for some crimes, forbidding judges to take into account any mitigating factors.
A REAGAN NOMINEE
Nominated by Republican President Ronald Reagan in 1988, Kennedy has followed a middle-of-the-road approach, making him a pivotal member on the ideologically divided court.
In April, he made a rare policy statement to a U.S. House of Representatives panel criticizing mandatory minimum sentences.
Congress shortly after adopted a measure aimed at pushing judges into following stricter sentencing guidelines, giving the Justice Department 90 days to come up with a plan to enforce the rules.
In response, Ashcroft directed federal prosecutors to challenge more sentences that are shorter than the guidelines suggest.
The judiciary is taking a public stand against efforts to restrain its power. In June, for example, a respected federal judge in Manhattan, John Martin, said he was leaving the bench, fed up with Congress' quest to boost prison sentences and prevent judges from deciding punishment.
In his speech to the bar association, Kennedy noted the nation's inmate population was about 2.1 million, making the incarceration rate about one in 143. In contrast, the rate is about one in 1,000 in England, Italy, France and Germany.
"We must confront another reality. Nationwide, more than 40 percent of the prison population consists of African-American inmates," Kennedy said. "About 10 percent of African-American men in their mid-to-late 20s are behind bars."
In some cities, he noted, 50 percent of young black men are supervised by the criminal justice system.
Justice Kennedy also urged attorneys to "reinvigorate" the pardon process at the state and federal level," adding, "We should not be ashamed of the concept of mercy."
Mohammed Odeh al Rehaief, the Iraqi attorney who notified U.S. authorities about the presence of Army PFC Jessica Lynch in an Iraqi hospital, was honored with a lifetime membership in the ABA.
Sure there is a problem, I'd be the last to deny that. But federal mandatory minimums have already sentenced a lot of people to long prison terms when they didn't deserve that, and that costs us all money. Then we've got the flipside which you point out, which is a lot of other people getting off too lightly. I'm probably the last guy you'll see stand up for federal judges... what I'm really saying is that we should stand up for justice. But how best to achieve that? As we have already seen, giving free reign to the judiciary won't cut it, but neither will mandatory sentencing.
If we must err, I'd prefer it to be on the side of leniency than on the side of harshness, I sleep better that way. Call me a liberal on this issue if you must :). Maybe some form of jury sentencing is the answer.
And when some nonviolent 19 yr old drug offender gets locked up for 25 years because of mandatory minimums, you don't call that justice denied? There are plenty of cases like that.
There is no easy right answer on this issue. Both judicial discretion and sentencing guidelines bring their own forms of injustice.
I don't mean to come down completely on the side of the judges, I'm just saying that mandatory minimums aren't any better than complete judicial discretion. One way you err on the side of excessive leniency, and the other way on the side of excessive harshness.
And that's what I think mandatory minimums are, a replacement, not an improvement. I'm interested to see what kind of options could be posited for jury-ordered sentencing. Certainly juries aren't going to unanimously agree on a sentence very often, but perhaps some sort of majority system could be worked in.
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