Federal Judges “Courageous,” Says Justice Kennedy

Vol. 36, Number 4—April 2004

Federal Judges "Courageous,"
Says Justice Kennedy

In an exchange last month during the Supreme Court's House appropriations hearing, Justice Anthony Kennedy supported greater sentencing discretion for federal judges and criticized federal mandatory minimum sentences.

"I do think federal judges who depart downward [from the sentencing guidelines] are courageous, and are exercising the independence and the authority of the judiciary not to follow blindly unjust guidelines," said Kennedy.

His remarks came during his and Justice Clarence Thomas' appearance before the House Appropriations Subcommittee on Commerce, Justice, State, and the Judiciary where they testified on the Supreme Court's Fiscal Year 2005 appropriations request. In the question and answer period that followed, Subcommittee Chair Frank Wolf (R-VA) noted that Kennedy had criticized federal mandatory minimum sentences and urged the American Bar Association (ABA) to establish a commission to study the nation's imprisonment policies. Kennedy responded that the U.S. has a per capita incarceration rate eight times higher than most Western European countries.

"Something is very wrong," said Kennedy. "Fifty-five percent of those in federal prison—andwe have over 150,000 just in federal prison—are for drug offenses, nonviolent offenses. The mandatory minimums enacted by the Congress are, in my view, unfair, unjust, unwise." Kennedy cited an example of federal sentencing. "There is a case," he said, "where a kid on the George Washington Parkway, which is a federal facility, is stopped by the park police, and he has got just over five grams of cocaine in the seat, which he should not have. A minimum of five years. If he had gone off an exit, it would have been six months. This is silly and it is wrong."

The ABA has a commission which is studying the nation's imprisonment policies and is expected to give its report before the next ABA annual meeting in August.