Supreme Court Justice Anthony M. Kennedy last night proposed repeal of mandatory minimum sentences and mercy for those serving them, five months after he cast the deciding vote to allow California to give petty thieves 50 years to life.”Our resources are misspent, our punishments too severe, our sentences too long,” Justice Kennedy said in San Francisco, where he delivered the keynote speech of the American Bar Association’s annual meeting.”It is a grave mistake to retain a policy just because a court finds it constitutional,” he said in an obvious reference to the court’s March 5 ruling upholding the California “three strikes” law requiring a minimum of 25 years for a felon with serious prior offenses even if the third strike is a misdemeanor. Justice Kennedy voted with the majority in two 5-4 decisions that day, upholding the nation’s longest mandatory minimum sentence for nonviolent larceny or other “petty” offenses.Last night Justice Kennedy called on the 410,000-member organization of lawyers to crusade against such sentences and other “inadequacies and the injustices” in the nation’s prisons and sentencing policies.”Courts may conclude the legislature is permitted to choose long sentences, but that does not mean long sentences are wise or just,” he told fellow lawyers, noting the nation spends $40 billion a year to confine prisoners.He urged the ABA to lobby legislatures to abandon mandatory minimums, influence governors to use their pardon powers to reduce long terms and seek changes in federal sentence guideline.Erwin Chemerinsky, the University of Southern California law professor who unsuccessfully argued to the Supreme Court that Leandro Andrade’s 50-years-to-life sentence for stealing videotapes violated the Eighth Amendment, welcomed the proposals but questioned Justice Kennedy’s continued stand that such severe sentences are constitutional.”I just find it hard to reconcile what he’s saying with his decisive vote for the conclusion that it’s not cruel and unusual punishment to put a person in prison for life where the individual never committed a violent felony,” Mr. Chemerinsky said in a telephone interview about the speech.”I applaud what Justice Kennedy says. Just because the Supreme Court said it’s constitutional doesn’t mean it’s desirable. I do think it makes no sense in a time of huge budget shortfalls, if it ever makes sense, to put people in prison for 50 years for shoplifting,” Mr. Chemerinsky said.That view was not shared by Charles Hobson of the Sacramento-based Criminal Justice Legal Foundation, who urged the justices to uphold Andrade’s sentence and the “three-strikes” law intended to “incapacitate” career criminals.”It shows that Justice Kennedy is a much better judge than he would be a legislator. It is the height of good judging to render a decision that is contrary to your own personal policy preferences,” Mr. Hobson said.He praised Justice Kennedy’s “admirable judicial restraint [for not] imposing his views on the public through a misinterpretation of the U.S. Constitution.”Justice Kennedy called the issues of mandatory minimum sentences and lengthy terms a concern for the entire legal profession, not just criminal lawyers, who, he said, tend to “lose all interest” once the question of guilt or innocence is decided.While advocating that penologists punish criminals and be certain they acknowledge the victim’s suffering, he said lawyers have a responsibility to be sure that process is not excessive.By also commenting on federal sentencing guidelines — an issue separate from federal minimum sentences — Justice Kennedy seemed to join the growing debate over Attorney General John Ashcroft’s directive that federal prosecutors report to him data on judges who levy sentences lower than federal guidelines dictate.”The federal sentencing guidelines should be revised downward,” Justice Kennedy said in arguing that discretion remain in judges’ hands rather than with a federal prosecutor “often not much older than the defendant.”In the keynote speech, whose text was made available in advance to Supreme Court reporters, Justice Kennedy noted with disapproval estimates that 2.1 million persons are behind bars in this nation, about one in every 143 U.S. residents.”In countries such as England, Italy, France and Germany, the incarceration rate is about one in 1,000 persons,” he said, adding that the U.S. prison population includes a disproportionate number of young black men.”About 10 percent of African-American men in their mid-to-late 20s are behind bars. In some cities more than 50 percent of young African-American men are under the supervision of the criminal justice system,” he said.
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