MANDATORY SENTENCES ARE UNJUST

Editor's Note: Anthony M. Kennedy, associate justice of the U.S. Supreme
Court, spoke to the American Bar Association in San Francisco last month
about the rising rate of prison populations across the country. We reprint
today part of his prepared text:

WERE we to enter the hidden world of punishment, we should be startled by
what we see. Consider its remarkable scale. The nationwide inmate
population today is about 2.1 million people. In California, even as we
meet, this state alone keeps over 160,000 persons behind bars. In countries
such as England, Italy, France and Germany, the incarceration rate is about
1 in 1,000 persons. In the United States it is about 1 in 143.

We must confront another reality. Nationwide, more than 40 percent of the
prison population consists of African-American inmates. About 10 percent of
African-American men in their mid-to late 20s are behind bars. In some
cities, more than 50 percent of young African-American men are under the
supervision of the criminal justice system.

While economic costs, defined in simple dollar terms, are secondary to
human costs, they do illustrate the scale of the criminal justice system.
The cost of housing, feeding and caring for the inmate population in the
United States is over $40 billion per year. In California alone, the cost
of maintaining each inmate in the correctional system is about $26,000 per
year. And despite the high expenditures in prison, there remain urgent,
unmet needs in the prison system.

To compare prison costs with the cost of educating school children is, to
some extent, to compare apples with oranges, because the state must assume
the full burden of housing, subsistence and medical care for prisoners. Yet
the statistics are troubling. When it costs so much more to incarcerate a
prisoner than to educate a child, we should take special care to ensure
that we are not incarcerating too many persons for too long.

It requires one with more expertise in the area than I possess to offer a
complete analysis, but it does seem justified to say this: Our resources
are misspent, our punishments too severe, our sentences too long.

In the federal system the sentencing guidelines are responsible in part for
the increase in prison terms. 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.

Consider this case: A young man with no previous serious offense is stopped
on the George Washington Memorial Parkway near Washington, D.C., by United
States Park Police. He is stopped for not wearing a seat belt. A search of
the car follows and leads to the discovery of just over five grams of crack
cocaine in the trunk. The young man is indicted in federal court. He faces
a mandatory minimum sentence of five years. If he had taken an exit and
left the federal road, his sentence likely would have been measured in
terms of months, not years.

United States marshals can recount the experience of leading a young man
away from his family to begin serving his term. His mother says, "How long
will my boy be gone?" They say "10 years" or "15 years." Ladies and
gentlemen, I submit to you that a 20-year-old does not know how long 10 or
15 years is. One day in prison is longer than almost any day you and I have
had to endure.

Alexander Solzhenitsyn describes just one day in prison in the literary
classic "One Day in the Life of Ivan Denisovich." Denisovich had a 10- year
sentence. At one point he multiplies the long days in these long years by
10. Here is his final reflection: "The end of an unclouded day. Almost a
happy one. Just one of the three thousand six hundred and fifty-three days
of his sentence, from bell to bell. The extra three were for leap years."