- The Washington Times - Tuesday, August 26, 2003

Fresh from penning the high court’s recent pro-homosexual decision, Supreme Court Justice Anthony Kennedy denounced minimum mandatory prison terms for drug dealers and advocated giving far greater leeway in sentencing to judges in a San Francisco speech to the American Bar Association two weeks ago. Real-world experience has taught us that following Justice Kennedy’s advice would be a big mistake.

Twenty-four years as a federal agent, enforcing the nation’s laws and dealing “up close and personal” with the folks who break them, has given me a little different perspective. One can only imagine the esteemed associate justice, in the back of his limousine, no doubt, driven by an armed Supreme Court police officer, briefly diverting his deep ponderings from the dignifying aspects of sodomy to the boredom of federal prison inmates — (“Every day in prison is much longer than any day you’ve ever spent.”)

Or maybe his musings about inadequately entertained felons and the injustices of mandatory minimum sentences occurred to His Honor while he was tucked safely away in his palatial chambers in the High Court’s fortified edifice, surrounded by an entire police force.

The point is that the justice’s recent speech shows him to be far out of step with most of America and certainly with those in law enforcement. Notwithstanding the thunderous applause offered by the distinguished members of the bar to his “Let judges be judges” line, the current mandatory minimums and sentencing guidelines were a reaction to the widespread abuse of judicial discretion. For years, before enactment of these reforms, law enforcement officers would literally risk their lives and spend the public’s treasure to eliminate some threat to society, only to watch the predator appear at his day of reckoning in his Sunday best with a new haircut and a sobbing girlfriend or mother.

Often there, some tender-hearted (and sometimes soft-headed) robed god — again, surrounded by armed marshals — would completely nullify the sometimes Herculean efforts and risks endured by dedicated officers. Prevailed upon by a frequently skillful defense lawyer to try to show mercy on their poor, misunderstood miscreant, standing there looking remorsefully up at His Majesty — I mean His Honor — the thug of the moment too many times got “one more chance.”

Out the door they sauntered off to continue preying upon defenseless victims. Victims who commute without benefit of trained, armed law officers as drivers, and who often live behind barred windows in neighborhoods that never sleep. Victims who every waking moment anxiously dread that their child will be the next to succumb to the living hell of drug addiction, seduced by the drug dealer the good justice wants released early.

The best evidence that Americans are better protected by serious sentences for those whom the public considers to be the greatest threats is found in two current news stories. Only a week ago, news stories were disapprovingly citing our relatively high rates of incarceration. In the last few days, historic low crime rates were touted. Trust me. Those two facts are directly connected.

Yes, the new sentencing regime has kept more criminals off the street longer and injected more justice into the justice system. But it has also done something else. As one who pursued Federal lawbreakers both before and after these reforms, I can testify that these strong measures have vastly improved our ability to dismantle major criminal enterprises. A far greater number of defendants now cooperate with law enforcement, making the good guys much more effective in the war on crime.

Finally, having visited a few more federal prisons than has His Honor, I can personally reassure him that he should lose no more sleep over the imagined discomforts and lack of intellectual or physical stimulation available to inmates. Most of them live much better than, say, any military enlistee. If your average convicted felon isn’t pleased with the HBO offerings that particular evening, he can always join some of the boys for a friendly game of B-ball.

Or, maybe a trip to the gym might be just the thing for those “jailhouse blues.” Of course, there might not be time for fun just then because his free college course or dental work might be on the schedule.

Maybe that should be the next reform. Save all of us some money and make the first short visits to our prisons a little less cushy. Then, maybe the mostly rational crooks out there will be a little more wary of doing the big crime and drawing the big time.

Chris Kerr has worked as a federal agent conducting organized crime and drug investigations for 24 years. These are his personal views and do not represent the positions of the Department of Justice.

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