Want to know one of the greatest unrecognized injustices, in the view of U.S. Supreme Court Justice Anthony Kennedy? • Overly harsh criminal sentences. • You read that right. The Reagan-appointed justice thinks America's criminal justice system is not working and too costly. "I think you have to look at rehabilitation and alternative punishments," Kennedy told a group of students at the University of California Washington Center during a conversation this month moderated by Jess Bravin of the Wall Street Journal.
The justice is not alone. Attorney General Eric Holder recently told federal prosecutors to stop subjecting low-level, nonviolent drug offenders to harsh mandatory minimum sentences, calling the current system "broken."
But hearing Kennedy offer up progressive views is a hopeful sign. He sits at the fulcrum of the Supreme Court as a swing vote, more often than not siding with the four conservative justices when the court is divided. On criminal justice, he's sounding more MSNBC than Fox.
Kennedy's views are informed by decades of watching the federal courts overrun by drug cases. At an astronomical cost, nearly half the 200,000 federal inmates are there for drug-related crimes — largely low-level people with addictions, not kingpins.
Kennedy told the students that the country is on a mistaken and self-destructive path. The United States has an incarceration rate that is five to eight times that of Europe — making us the top jailer in the world, with staggering consequences. Kennedy offered California as an example of backward priorities. That state spends an average $47,000 annually to keep someone in prison and about $8,500 to educate a public school student.
If it takes "cost statements to come to an awareness that there's something wrong, I'll take it," Kennedy said, suggesting that some people will only abandon a tough-on-crime stance if it is shown as too expensive to be sustainable.
Mandatory minimum sentences and "three-strikes" laws may make good political sound bites, but they have contributed to more than 2 million people being locked up in America's prisons and jails, a figure that has quadrupled since 1980. Beyond the $80 billion a year the system costs taxpayers, add the lost human capital and the destruction of families and communities when so many young men and women are put away.
Maybe if the punishments worked to end recidivism and deter crime there would be some justification beyond pure retribution. But they don't. Put one drug dealer in prison and that creates an opportunity for another to take his place. The harshness element, with so many years behind bars for minor drug offenses, means people won't have a second chance at a productive life. Children lose their parents during their formative years, creating a cycle of social ills.
Kennedy's willingness to be vocal about serious defects in America's punitive approach to criminal justice suggest he feels it has reached a crisis point.
You have to wonder if Kennedy would still vote alongside his conservative colleagues to uphold California's "three-strikes" law as he did in 2003 in a pair of cases, one of which resulted in a man receiving two consecutive terms of 25 years to life for stealing $150 worth of videotapes. Those cases were narrowly decided by a 5-4 vote.
Harsh sentences are exacerbated by the lack of quality of legal representation for poor defendants. Kennedy thinks, in too many cases, counsel might not be adequate to reach a just result, with the potential of convicting the innocent. And politicians are too afraid to show mercy through clemency and executive pardons, closing off the system's vital escape valve, he said.
These are surprisingly progressive views.
Kennedy pointed to segregated schools and sex discrimination as evidence that an unjust social condition is often accepted until an enlightened evolution in thinking takes hold. "The nature of injustice is you can't see it in your own times," Kennedy told his audience.
But the nature of reforming society for the better is that people who see injustice for what it is, stand for what is right. Kennedy has a powerful place from which to stand. We'll see if he does.