Kennedy: Too Many People Are Behind Bars

The Associated Press
Wednesday, April 9, 2003; 4:19 PM

WASHINGTON – Too many people are behind bars in America, and prison terms are often too long, Supreme Court Justice Anthony M. Kennedy told Congress on Wednesday.

As of last June 30, 2.1 million people were locked up in prisons or jails, an increase of 2.8 percent from the year before.

“Two million people in prison is just unacceptable,” Kennedy said during a hearing on the Supreme Court’s budget.

Justice Clarence Thomas nodded in apparent agreement as Kennedy criticized the proliferation of “mandatory minimum” sentences, which can mean long prison terms for relatively minor or nonviolent crimes. Thomas did not say anything.

“In many cases, our sentences are too long,” Kennedy said.

The comments came after Kennedy and Thomas had asked the House Appropriations Committee for $73.4 million for salaries, upkeep and other court expenses for the 12 months that begin in October.

Kennedy is a moderate conservative named to the high court by Ronald Reagan in 1988. He voted last month to uphold sentences of up to life in prison for three-time convicts in California. The ruling means a small-time thief will spend 50 years to life in prison for stealing $153 worth of children’s videos from Kmart.

None of the congressmen at Wednesday’s hearing asked about that ruling, in which Thomas also upheld long prison terms.

“Mandatory minimums are harsh and in many cases unjust,” Kennedy said Wednesday.

He offered a hypothetical example of an 18-year-old who gets caught growing marijuana in the woods. If he happens to have a hunting rifle in his truck when arrested, the teenager could face a mandatory minimum sentence of 15 years, Kennedy said.

“Now, he shouldn’t be doing that,” Kennedy said, “(but) an 18-year-old doesn’t know how long 15 years is.”

Kennedy’s language was unusually strong, said Marc Mauer, assistant director of the Sentencing Project, a nonprofit group that advocates alternatives to long prison terms.

Nonetheless, the remarks probably do not represent any lessened commitment to a law-and-order approach to serious crime, Mauer said. Kennedy was probably reflecting frustration common among federal judges who feel that mandatory minimum sentences are too inflexible, Mauer said.

Chief Justice William H. Rehnquist has underscored that mandatory sentencing laws can unduly tie a judge’s hands. He once called such laws “a good example of the law of unintended consequences.”

“Even though they represent what is usually thought of as the conservative wing of the court, when it comes to the appropriate role of the judiciary there is much less distinction between liberal and conservative judges,” Mauer said.

States and the federal government passed many laws setting mandatory minimum sentences for drug crimes in the mid- to late 1980s. The laws reflected national concern and fear over the growth of drug crime and the spread of crack cocaine. Other mandatory minimum sentencing laws, like “three strikes” laws in California and other states, were meant to keep career criminals behind bars.

Earlier in Wednesday’s session, Kennedy said the Supreme Court is not likely to make a habit of releasing audio tapes of its oral argument sessions on the same day a case is heard, as the court did for the April 1 arguments in a marquee case about affirmative action.

Kennedy also said the court’s current workload is too light. The court has heard about 80 cases a year in recent terms, far fewer than was the custom a decade or more ago.

That could change soon, especially as a large number of cases “related to terrorism” make their way through the courts, Kennedy said. He did not elaborate.

© 2003 The Associated Press