Justice Criticizes Sentencing Guidelines
Associated Press
Sunday, August 10, 2003; Page A08

SAN FRANCISCO, Aug. 9 -- Supreme Court Justice Anthony M. Kennedy said today 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 said in remarks prepared for delivery to the annual meeting of the American Bar Association.

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

"Courts may conclude the legislature is permitted to choose long sentences, but that does not mean long sentences are wise or just," 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," he 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.