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Justice Kennedy Calls Efforts to Increase Sentences "Sick"

By Jeralyn, Section Inmates and Prisons
Posted on Tue Jul 11, 2006 at 11:45:23 AM EST
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Wow. Supreme Court Justice Anthony Kennedy, speaking in California yesterday:

U.S. Supreme Court Justice Anthony M. Kennedy yesterday criticized the federal Sentencing Guidelines and the lobbying efforts of correctional officers' unions.

"The only thing worse than sentencing under the guidelines is sentencing without them," he told judges and lawyers from across the Ninth Circuit yesterday. "I think the guidelines are far too severe," he added, explaining that spending money on prisoners while failing to invest in efforts to inform at-risk groups about sentencing undermined the principle of deterrence.

"The fact that the prison guards' association lobbies for higher penalties is sick," he added emphatically.

Best thing I've read all day. [Via How Appealing.]

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    Justice Kennedy Calls Efforts to Increase Sentences "Sick" | 26 comments (26 topical)
    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#1)
    by squeaky on Tue Jul 11, 2006 at 12:10:07 PM EST
    Nice one. Kennedy caught the creeps talking out of both sides of their mouths. Essentially the correction and police lobby are like farmers lobbying to increase production subsidies so that they can rape more profits.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#2)
    by Deconstructionist on Tue Jul 11, 2006 at 12:22:13 PM EST
    I oppose the sentencing guidelines because they attempt to eliminate the "humanity" of the individual and replace human judgment (however imperfect that may be) with rigid and often arbitrary formulas in a pursuit of uniformity of outcome. However, the idea of their being overly harsh is based almost entirely on the guidelines applicable to controlled subtance offenses (not without reason as I believe that accounts for approximately 70% of all federal sentences). Actually, when you look at how the guidelines work for other offenses they are often not harsh in comparison to the harms.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#3)
    by scribe on Tue Jul 11, 2006 at 12:31:53 PM EST
    Decon - that depends on how you define "harsh". I read today of a trial starting in Germany where a father and son team used submachineguns to hold up a money transport and stole 4+ million Euros. A good amount of the money is still not recovered. Their sentence exposure? Maximum 15 years. Here, under the Guidelines that's probably enough to get you life without parole, even as a first-time offender.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#5)
    by Talkleft Visitor on Tue Jul 11, 2006 at 12:57:19 PM EST
    scribe - You make an effective argument for the absurdity of German criminal penalties. Using machine guns to commit an armed robbery should net you more than 15 years in prison. Does anyone have any concerns about statutory minimums or maximums threatening the independence of the judiciary?

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#6)
    by Sailor on Tue Jul 11, 2006 at 01:04:56 PM EST
    There is nothing harsh enough for people that.
    rape, torture, war crimes A-OK, steal $$ and get the gas chamber.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#7)
    by Talkleft Visitor on Tue Jul 11, 2006 at 01:25:17 PM EST
    Posted by Sailor July 11, 2006 02:04 PM ......rape, torture, war crimes A-OK, steal $$ and get the gas chamber.
    When you make statements like this that are clearly absurd, it takes away from any valid points you may have.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#8)
    by Talkleft Visitor on Tue Jul 11, 2006 at 01:39:25 PM EST
    You are praising your three strikes laws where someone gets life for a non-violent third strike? Please. You are on the wrong site. Of course, mandatory minumums should be abolished as well, particularly in drug cases. And yes, Clinton was responsible for adding many of them.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#9)
    by BigTex on Tue Jul 11, 2006 at 01:49:08 PM EST
    Not a fan of the guidelines. They don't give enough leeway for an assessment of who is savagable and who isn't, and to sentence accordingly. However, they do lead to charge bargaining, which is as close as you can get to plea bargaining in the federal system, so they aren't entirely bad. The bigger question, though, is will Justice Kennedy recuse himself from any future cases regarding the guidelines?

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#10)
    by Deconstructionist on Tue Jul 11, 2006 at 01:49:52 PM EST
    Scribe: It's a good idea to have some small idea of what you are talking about. Here is the USSG guideline for robbery: §2B3.1. Robbery (a) Base Offense Level: 20 (b) Specific Offense Characteristics (1) If the property of a financial institution or post office was taken, or if the taking of such property was an object of the offense, increase by 2 levels. (2) (A) If a firearm was discharged, increase by 7 levels; (B) if a firearm was otherwise used, increase by 6 levels; (C) if a firearm was brandished or possessed, increase by 5 levels; (D) if a dangerous weapon was otherwise used, increase by 4 levels; (E) if a dangerous weapon was brandished or possessed, increase by 3 levels; or (F) if a threat of death was made, increase by 2 levels. (3) If any victim sustained bodily injury, increase the offense level according to the seriousness of the injury: Degree of Bodily Injury Increase in Level (A) Bodily Injury add 2 (B) Serious Bodily Injury add 4 (C) Permanent or Life-Threatening Bodily Injury add 6 (D) If the degree of injury is between that specified in subdivisions (A) and (B), add 3 levels; or (E) If the degree of injury is between that specified in subdivisions (B) and (C), add 5 levels. Provided, however, that the cumulative adjustments from (2) and (3) shall not exceed 11 levels. (4) (A) If any person was abducted to facilitate commission of the offense or to facilitate escape, increase by 4 levels; or (B) if any person was physically restrained to facilitate commission of the offense or to facilitate escape, increase by 2 levels. (5) If the offense involved carjacking, increase by 2 levels. (6) If a firearm, destructive device, or controlled substance was taken, or if the taking of such item was an object of the offense, increase by 1 level. (7) If the loss exceeded $10,000, increase the offense level as follows: Loss (Apply the Greatest) Increase in Level (A) $10,000 or less no increase (B) More than $10,000 add 1 (C) More than $50,000 add 2 (D) More than $250,00 add 3 (E) More than $800,000 add 4 (F) More than $1,500,000 add 5 (G) More than $2,500,000 add 6 (H) More than $5,000,000 add 7. (c) Cross Reference (1) If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply §2A1.1 (First Degree Murder). *** Given your incomplete description of the German robbery and assuming no one was physically harmed or abducted the total offense level might work out as low as 34. (If the defendant received an adjustment for acceptance of responsibility that could be reduced to 31). A TOL of 31 and a criminal history category of 1, results in a GUIDELINE sentencing range of 108-135 months. Certainly, the TOL could be much higher with more aggravating facts, but the guidelines are not what most reasonable people consider disprortionataly harsh for most offenses other than drugs. You should also note that the STATUTORY MAXIMUM (statutory minimums and maximums are distinct from and trump the guidelines) for first offense armed bank robbery is 25 years. You should also know that PAROLE WAS ABOLISHED in the federal system almost 20 years ago. However with good time credits inmates serve only 85% of their imposed sentence, so a first offender would likely serve NO MORE than a little over 21 years so long as no one died even in very aggravated circumstances.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#11)
    by Talkleft Visitor on Tue Jul 11, 2006 at 02:01:12 PM EST
    TL: "You are praising your three strikes laws where someone gets life for a non-violent third strike? Please. You are on the wrong site." Seems to be a little rude, even for you. If you are convicted of a felony on three separate occasions, what about your character (or lack thereof) does that reveal? What possible benefit could you provide to society should you be eligible for release?

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#12)
    by Deconstructionist on Tue Jul 11, 2006 at 02:23:53 PM EST
    "Not a fan of the guidelines. They don't give enough leeway for an assessment of who is savagable and who isn't, and to sentence accordingly." That's another way of saying what I said and now Booker does allow for some consideration of the individual as a person as a reason to give a sentence that varies from the guideline sentncing range (now "advisory" not mandatory). Unfortunately almost all the circuit courts of appeals are issuing opinions essentially instructing district courts that the guideline sentence range is presumptively reasonable and requiring specific factual findings to suport variances. Worse, some appeals courts have reversed district judges who imposed variance sentences even where the district judge did give specific reasons under § 3553 (a) basically because they didn't like the sentence. (appeals courts don't say it like that, of course, but that's the reality). Booker is providing some limited benefit to some defendants but it is nothing approaching the hype that people were tossing around after Blakely.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#13)
    by aahpat on Tue Jul 11, 2006 at 02:41:07 PM EST
    This is nothing new for Kennedy. Here is a web page I host of his speech to the ABA in 2003 on the topic of mandatory minimums. The issue is: WHEN THE HELL IS AMERICA, ESPECIALLY THE JIM CROW DEMOCRATIC PARTY, GOING TO LISTEN TO JUSTICE KENNEDY? United States Supreme Court Justice Anthony M. Kennedy speaking to the American Bar Association annual meeting in San Francisco 8/2003 about penal conditions and unjust mandatory minimum sentences

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#14)
    by dab on Tue Jul 11, 2006 at 03:00:34 PM EST
    On the guidelines: I am not the expert that Decon and others are, but I have yet to see a sentence under the guidelines that didn't seem harsh to me. Drugs are certainly a big part of it. I rejoiced when Booker came down. But on the other hand, Sen. Kennedy was one of the biggest supporters of the guideline system in the first place. Why? To eliminate disparities in sentences imposed by judges who had complete discretion to play to their own prejudices (race was a major factor). I am generally a supporter of judicial discretion, but I hope the system will not revert to that aspect of the pre-guideline system. On tough sentencing: Some of the comments here reflect why sentences keep getting more severe with time. The public hears about criminals and thinks, I'm scared of them, let's lock them up. I have found judges and lawyers are among the few who can appreciate the human quality of criminal defendants, and that they are sometimes/often just people like you and me who have made serious mistakes they wish they could take back. The only people I think should be locked up with the key thrown away are repeat sex offenders and murderers. Kennedy may just be expressing the empathy that judges and lawyers can understand but politicians don't. He has also slowly positioned himself as the new O'Connor. Why? As the swing vote in close cases, he has the power. (Of course, his views may be sincere). On three strikes: How do you feel about getting life in prison for stealing a bottle of mouthwash? It has happened.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#15)
    by aahpat on Tue Jul 11, 2006 at 03:02:10 PM EST
    Here is another speech by a federal judge regarding the most egregious use of mandatory minimum sentences, the Jim Crow drug war. Federal Judge John L. Kane; "How Effective is the Current Drug Policy?" speech. John L. Kane, United States Senior District Judge, May 3, 2001

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#16)
    by aahpat on Tue Jul 11, 2006 at 03:08:38 PM EST
    The guidelines have been a fraud righ from the start. Even under Clinton the commission was never again appointed a quorum after they promulgated their first really harsh and intransigent set of guides. The quorum that would have analyzed the effect of the the original guidelines and modified them to make them humane. Bush did the same for at least two years so that the system was stuck in maximum mode. The damned guidelines were constitutional only because of the oversight of the commission but the commission was subverted by the Jim Crow drug warriors. Both Republican and Democrat together. Without the full commission acting at all times the constitutional basis of the guidelines was rendered null and void.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#17)
    by Deconstructionist on Tue Jul 11, 2006 at 03:14:27 PM EST
    "If you are convicted of a felony on three separate occasions, what about your character (or lack thereof) does that reveal? What possible benefit could you provide to society should you be eligible for release?" If the standard is "benefit to society" then one could argue that many people who have never committed a single crime should be locked away in prison. The question need to be framed in terms of what punishment is necessary to protect society and deter the wrongdoer and others. An additional question that needs to be asked is at what point does the remedy cause more harm to society than the ill being treated. I'm on the defense but I'm not a bleeding heart. I'm not even morally opposed to capital punishment in the abstract because I accept the premise that certain people who commit voluntary acts of extraordinarily cruel and heinous ssentially "forfeit" their human rights. My problem with capital punishment is based on my belief that we are incapable of implementing it in a just fashion. In an "ideal" world of "perfect" knowledge and wisdom allowing "perfect" justice, I would not be opposed to it. Of course, that "ideal" world is little more likely than the "ideal" world in which there is no crime. I digress. As for 3 strikes laws. The problem is some of them are too arbitrary. If a person commits three violent felonies, I'd agree that often life might be an appropriate sentence. However, even then I can conceive of some circumstances where it would be unjust. Where the felonies are non-violent minor drug offenses or minor crimes against property I really cannot conceive of life ever being what I consider just. Any law that allows no discretion in treatment between a person who committed a rape, an armed robbery causing injury and an aggravated assault and one who committed welfare fraud, kited a check and walked off with someone's unattended computer is not a good law.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#18)
    by Deconstructionist on Tue Jul 11, 2006 at 03:36:05 PM EST
    Actually, in 1995, the U.S. Sentencing Commission did recommend to Congress one change that would have had a huge impact on the unfairness of the guidelines had Congress not rejected it. The Commission proposed eliminating the 100:1 ratio between the treatment of poder and crack cocaine under the guidelines. That single provision is responsible for a incredible proportion of the unjust federal sentences in this country. I'm a realist and i don't forsee the guidelines being eliminated in my lifetime. One relatively simple thing that could and might be done though is to amend the sentencing table, Rather than having 43 steps in the sentencing ranges based upon offense level, each dictating narrow sentencing ranges, a lot of good could be accomplished by creating a table with about a quarter of that number with much wider sentencing ranges. That step combined with the elimination of draconian mandatory minimums for drug offenses would solve a whole lot of the problem. (I would not be opposed to mandatory minimums for 2nd and 3rd offenses but I think the current minimums for 1st offenses are often too high even for second.) When I'm really optimistic, i think some day we might see the relevant conduct guideline amended so that the unarmed kid who gets caught selling 1 gram of crack, but against whom the cops have "historical (meaning snitch) evidence that he sold 1 gram a day for a couple of years to support his habit doesn't get treated worse than the guy caught with a gun and a pound of powder cocaine against whom the cops lack willing snitches.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#19)
    by aahpat on Tue Jul 11, 2006 at 03:54:01 PM EST
    As long as the laws are based on treating the genetic based disease of addiction as a crime there will be no justice in the system. The drug laws are simply using the criminal code to cleanse the gene code. The Jim Crow nature of the drug war makes it wholy undemocratic and unconstitutional. Tweaking the guidelines is simply haggling over the type of noose to use at a lynching.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#20)
    by unbill on Tue Jul 11, 2006 at 04:22:15 PM EST
    How's this for the prison labor system:
    Texas inmates working prison jobs aren't entitled to the federal minimum wage, an appeals court ruled in a case brought by a sex offender who works at a state prison laundry.
    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#21)
    by Abdul Abulbul Amir on Wed Jul 12, 2006 at 06:42:35 AM EST
    "The fact that the prison guards' association lobbies for higher penalties is sick," he added emphatically. This is not much different than teachers unions opposing vouchers or home schooling. Or as pointed out earlier farmers favoring crop price supports, import quotas, and tariffs. Whenever the government controls the movement of large amounts of money, a constituency develops to support doing more of the same, and opposing alternatives.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#22)
    by Deconstructionist on Wed Jul 12, 2006 at 06:49:49 AM EST
    aahpat: There are very valid points to be made about our drug laws and enforcement but you need to get beyond shallow propaganda to make them. The manufacture/importation and distribution of drugs IS a very serious problem. The drug trade is obviously connected to drug use and there are many people, mostly at the lower levels, who are both drug users and drug sellers. however, it is simply inaccurate to suggest that people receiving long sentences merely for being addicted to a drug is anything but an anomaly. VERY FEW people are sentenced to prison based solely upon drug use even habitual use. The [too] harsh sentences target the drug trade. Obviously, without demand there would be no incentive to break the law to supply drugs. It DOES NOT follow from that though the answer is to decriminalize even the use of drugs let alone the importation/manufacture and distribution of drugs. That type of logic is similar to arguing: "Because there is demand for child pornography and many of the people desiring child pornography suffer from a mental condition it is wrong to criminalize child pornography because criminals will become involved to supply the demand. If we simply decriminalize it and focus on treating the people who desire it and regulate the production and distribution we can eliminate the criminal conduct." By definition that is true; you can eliminate "criminal conduct" simply by making the conduct legal. Now, a distinction can be drawn because the very act of producing child pornography harms children while the manufacture of drugs does not necessarily harm anyone. That distinction is not however based on the simplistic argument that because the CONSUMPTION in both cases is correlated with mental illness everything conncted with it should be decriminalized. An argument based on the supportable premise that the PROHIBITION as presently constituted causes more widespre3ad and often greater social consequences than at least some of the conduct being prohibited can be developed. It is not unassialble and reasonable people can and do differ greatly on their views. For instance, Jack Daniels and Jim Beam do not engage violent confrontations to control sour mash distribution and liquor retailers do not resort to drive-by shootings to control local retail sales. When liquor was illegal these sorts of things did happen. That is an important consideration. Another important consideration is the corruption of law enforcement -- both in the obvious sense of officers "on the take" and the more subtle sense of the diversion of manpower and resources from the enforcement of other laws due to the high profile and remuneration through forefeiture of drug enforcement. Clearly, what we are doing is not working. Recognizing that does not compel one to support an equally simplistic and misguided approach at the other end of the spectrum.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#23)
    by aahpat on Wed Jul 12, 2006 at 02:17:42 PM EST
    Deconstructionist: Do I need to give every citation and link to every fact that I ever reference or present in each and every post that I post so that you don't have an opening to denounce what I write as shallow propaganda? Regardless of your mischaracterizations I can support every asertion and fact that I present. You, on the other hand, attack and denounce with high-handed generalities and baseless assertions that serve to demonize without any qualification. I have re-read your post three times looking to sgive you a civil response but you simply do not deserve it. There is nothing honest in your post to respond to.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#24)
    by Talkleft Visitor on Wed Jul 12, 2006 at 03:52:52 PM EST
    Deconstructionist - gut check time. Do you hold the same belief about ice?

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#25)
    by Deconstructionist on Thu Jul 13, 2006 at 05:55:51 AM EST
    Aahpat: You can't give any facts to support this: "As long as the laws are based on treating the genetic based disease of addiction as a crime there will be no justice in the system. The drug laws are simply using the criminal code to cleanse the gene code. The Jim Crow nature of the drug war makes it wholy undemocratic and unconstitutional. Tweaking the guidelines is simply haggling over the type of noose to use at a lynching." It's simply an opinion and a poorly thought out one that parrots slogans with no thought behind them. linking to other people who write similarly unthinking opinions would not help. anonymous: I don't know what you mean. I have no idea to which opinion you are referring when you ask about about "ice." If you are asking whether I think dangerous clandestinely manufactured stimulants should be legal, the answer is no.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#26)
    by BigTex on Thu Jul 13, 2006 at 08:34:47 AM EST
    Deconstructionist - sorry I am the anon poster, didn't mean for it to show up as such. Ice is to meth what crack is to cocaine. The sentencing guidelines treat ice in an equivilent manner. Far more harsh penalties for very small amounts. Also, just like crack is a "black" drug, ice is a "white" drug. Basically the same argument can be made about the two substituting in ice for crack and white for black.

    Re: Justice Kennedy Calls Efforts to Increase Sent (none / 0) (#27)
    by Deconstructionist on Thu Jul 13, 2006 at 10:52:27 AM EST
    OK, i didn't understand you were talking about in terms of guidelines treatment. That's a good question. There is a better argument for disparate treatment of "ice" and pure meth v. meth mix than there is for the one between crack and powder cocaine. "Ice"/pure meth carries a 10:1 ratio to meth mix. (meaning it takes 10 times the weight of meth mix to put you in the same offense level as for "ice"/pure meth. One huge difference (besides it being a 10:1 ratio not 100:1 ratio) is that with ice and meth the distinction is based on the potency as quantifiably determined by the proportion of active ingredient present. With pawder and crack cocaine the distinction is based on the distinction between the "salt" (powder cocaine or cocaine HCL) and the "base" analogue. Current research repudiates the argument at "crack" or base is more potent or dangerous (let alone 100 times). the real difference is the melting point is different allowing base to be smooked. The delivery method can (and maybe does) affect the degrree to which the same amount of the drug effects a person. ( the argument being smoking puts more of itnto the bloodstream more rapidly and in higher but shorter duration concentration) but that argument holds little weight with me because i don't think there is any question that the most dangerous method of ingesting cocaine is intravenously and that is done with cocaine HCL not crack. You also allude to what i believe is an unspoken reality. The crack guidelines from the outset were attacked for their disparate impact on blacks (the legal challenges were all rejected despite what I consider real merit) and there was pressure to alleviate disparate impact based on race. One way to do that would have been to reduce the penalties for crack. Another way, and the one chosen, was to increase the penalties imposed for selling a "white" drug.

    Justice Kennedy Calls Efforts to Increase Sentences "Sick" | 26 comments (26 topical)