The revolt of the black robes against harsh federal sentencing policies, particularly mandatory minimum sentences, continued last week as Supreme Court Justice Anthony Kennedy told the House Appropriations Committee mandatory minimum sentences are "unjust, unfair, and unwise." Kennedy also praised federal judges who buck the system and grant "downward departures," or sentences less than those mandated by law.
Kennedy's remarks are only the most recent manifestation of deep dismay on the federal bench over the reduction in judges' flexibility in sentencing defendants. While concern has been building for years, the passage last year of the so-called Feeney Amendment, which makes it more difficult for judges to grant downward departures, and an order from Attorney General John Ashcroft commanding US Attorneys to not grant plea bargains, have brought the federal judiciary to a ferment (http://stopthedrugwar.org/chronicle/323/robes1.shtml and http://stopthedrugwar.org/chronicle/323/robes2.shtml).
"I do think federal judges who depart downward are courageous," the Associated Press reported Kennedy as saying. Judges should not have to "follow, blindly, these unjust guidelines," he said, criticizing mandatory minimums directly. "The mandatory minimums enacted by the Congress are in my view unfair, unjust, unwise," Kennedy said during the hearing on the Supreme Court budget.
The US needs to take another look at how it sets sentences, Kennedy added. "There are two different philosophies. One was the tough on crime argument, the other was well, everybody should be treated the same," Kennedy said. "Every time they compromised it was for higher sentences... and this is wrong."
This is not the first time Kennedy has lashed out at mandatory minimum sentences. Last August, he drew cheers and applause when he told the American Bar Association US justice was too harsh. "Every day in prison is much longer than any day you've ever spent," Kennedy said. "A country which is secure in its institutions and confident in its laws should not be ashamed of the concept of mercy."