Vol. 35, Number 9—September 2003
Kennedy Discusses Sentencing, Foundations of Freedom  Supreme Court Justice Anthony M. Kennedy, speaking at the Annual Meeting of the American Bar Association, addressed two timely topics, the current state of prisons and corrections, and the need to teach the principles of freedom to young people.
The subject of prisons and corrections is the concern, Kennedy argued, of every member of the legal profession and of every citizen. He cited the cost to the nation of incarcerating 2.1 million people, about 1 in 143 of the U.S. population, and examined the effect on the prison population of the sentencing guidelines and mandatory minimum sentences. "In the federal system, the sentencing guidelines are responsible in part for the increase in prison terms," Kennedy said. "In my view the guidelines were, and are, necessary. Before they were in place, a wide disparity existed among the sentences given by different judges, and even among sentences given by a single judge. As my colleague Justice Breyer has pointed out, however, the compromise that led to the guidelines led also to an increase in the length of prison terms. We should revisit this compromise. The Federal Sentencing Guidelines should be revised downward. By contrast to the guidelines, I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust." Kennedy explained his opposition to mandatory minimums, saying that most of the sentencing discretion should be with the judge, not the prosecutors. Currently, however, a sentence can be mitigated by a prosecutorial decision not to charge certain counts. "There is debate about this," he said, "but in my view, a transfer of sentencing discretion from a judge to an Assistant U.S. Attorney, often not much older than the defendant, is misguided. The policy gives the decision to an assistant prosecutor not trained in the exercise of discretion and takes discretion from the trial judge. The trial judge is the one actor in the system most experienced with exercising discretion in a transparent, open, and reasoned way." Kennedy conceded that the debate over the goals of sentencing is a difficult one, "but we should not cease to conduct it," he warned. "Prevention and incapacitation are often legitimate goals... We must try, however, to bridge the gap between proper skepticism about rehabilitation on the one hand and improper refusal to acknowledge that the more than two million inmates in the U.S. are human beings whose minds and spirits we must try to reach." The second issue Kennedy addressed was the continuing need to teach the principles of freedom to young people. The ABA sponsors the "Dialogue on Freedom" program for high school students. To date, Kennedy estimates that over 140,000 students have participated in the program. "Our objective was to show young people that our heritage can endure and spread only as a conscious act," said Kennedy. "An informed understanding of the foundations of freedom is not a genetic, inherited characteristic. It is taught. Each generation must learn and then teach it again."
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