HIGH COURT JUSTICE CRUSADES FOR MERCY; HE CALLS SENTENCES TOO SEVERE,
TOO LONG

San Francisco -- U.S. Supreme Court Justice Anthony Kennedy, in a
striking departure from his court's and the Bush administration's hard
line on crime, criticized the nation 's imprisonment policies Saturday
and called for the repeal of mandatory-minimum sentences for federal
crimes.

"Our resources are being misspent. Our punishments are too severe. Our
sentences are too long," Kennedy said in a speech at the American Bar
Association convention in San Francisco.

Mandatory-minimum sentences are an increasingly common feature of
federal laws, particularly drug laws, and require prison terms of a
specified number of years for defendants convicted of particular
crimes, regardless of the sentencing judge's views.

In congressional testimony this spring, Kennedy said mandatory
minimums can produce "harsh and unjust" results. He went a step
further Saturday and urged elimination of all such laws.

The ABA, the nation's largest lawyers' organization, should tell
Congress, "Don't take discretion away from the courts," Kennedy said,
to applause from the audience at Davies Symphony Hall. "Let judges be
judges."

He noted that 2.1 million people are behind bars in the United States
- -- more than 160,000 of them in California -- and that about 1
American in 143 is incarcerated, compared with 1 in 1,000 in many
European countries. About 10 percent of African American men age 25 to
29 are behind bars, Kennedy said.

"Every day in prison is much longer than any day you've ever spent,"
he said.

Kennedy, 67, a Sacramento native appointed to the court by President
Ronald Reagan in 1988, usually votes with the court's conservative
bloc but is known to switch sides in cases involving free speech and
some social issues. He was the author of the stunning 6-3 decision
issued June 26 that overturned sodomy laws in Texas and 12 other
states and declared that gays and lesbians were entitled to their
"dignity as free persons."

But he has generally sided with prosecutors in criminal cases,
including a pair of 5-4 decisions in the court's last term that upheld
California's "three strikes and you're out" sentences of 25 years to
life in prison for shoplifters with long criminal records.

His speech, the keynote address at the annual meeting of the
410,000-lawyer ABA, was more pointed and critical than the
generalities usually offered in speeches by Supreme Court justices. It
also sharply conflicts with the Bush administration's latest
initiatives on crime and punishment.

Even as the Justice Department reported last month that the nation's
prison population had increased 2.6 percent in 2002 despite a slight
drop in serious crime, Attorney General John Ashcroft ordered federal
prosecutors nationwide to increase their efforts to obtain longer sentences.

Citing a new law sponsored by the Justice Department, Ashcroft told
prosecutors to notify department officials of all cases in which a
federal judge imposed a sentence substantially below standard federal
guidelines, so that officials could decide whether to appeal. He also
cautioned against overly lenient plea agreements.

Justice Department officials could not be reached for comment Saturday
on Kennedy's speech.

In his speech, Kennedy said he agrees with the need for federal
sentencing guidelines -- established by federal law in 1984 to make
sentences more uniform -- but believes they are too severe and should
be shortened.

In contrast to the guidelines, which allow judges some flexibility,
mandatory minimums are virtually ironclad.

"I can accept neither the wisdom, the justice nor the necessity of
mandatory minimums," Kennedy said. "In all too many cases, they are
unjust."

He described the hypothetical case of a young man with no serious
criminal record arrested on federal property with 5 grams of crack
cocaine -- requiring at least a five-year prison sentence under
federal law, but only months in jail under most state laws. Such laws
effectively shift sentencing decisions to the prosecutor, who decides
whether to file charges that carry mandatory minimums, Kennedy said.

Kennedy also said the ABA should seek to "reinvigorate the pardon
process" for state and federal prisoners. Kennedy did not mention
controversies over former President Bill Clinton's pardons of some
campaign contributors but observed that pardons overall have become
infrequent.

"A country which is secure in its institutions and confident in its
laws should not be ashamed of the concept of mercy," he said.