EASY JUSTICE FOR CRIMINALS, NOT THE VICTIMS

Justice Anthony Kennedy won an outburst of applause at a recent
meeting of the American Bar Association in San Francisco when he criticized
mandatory sentencing laws.

"Every day in prison is much longer than any day you've ever spent,"
Justice Kennedy said. "A country which is secure in its institutions
and confident in its laws should not be ashamed of the concept of mercy."

Two centuries ago, Adam Smith had something to say about mercy as
well: "Mercy to the guilty is cruelty to the innocent."

Innocent victims of crime seem to disappear from the lofty vision and
ringing rhetoric of those who worry that the punishment of criminals
is "too severe," as Justice Kennedy put it. If a day in prison can be
pretty long, so can every day living in a high-crime neighborhood,
where you have to wonder what is going to happen to your son or
daughter on the way to or from school.

The nights can get pretty long too, when you are afraid to go out on
the streets and have to worry about how safe you are, even inside your
apartment behind doors with multiple locks. Locks can't stop stray
bullets from warring drug gangs.

Justice Kennedy may feel "secure" where he lives and works. But the
"equal protection of the laws" under the 14th Amendment applies also
to those who live in less elite circumstances.

Even in high-crime neighborhoods, most people are not criminals. But
the minority of thugs and hoodlums in their midst can make life a
living hell for the majority of decent people.

Even those people in such neighborhoods who do not become direct
victims of crime nevertheless suffer economically. Prices are higher
in stores that have to have costly security devices and pay higher
insurance rates because of crime and vandalism.

There is also a large hidden price in the absence of as many stores,
banks, and other institutions in high-crime neighborhoods.

Low-income people often have to go outside their neighborhoods for
shopping. For those who don't have cars, that means paying more bus
fares or taxi fares out of their low incomes.

How about a little "mercy" for these people? The sentences of innocent
people in high-crime neighborhoods can last a lifetime.

You wouldn't have to lock up 5 percent of the people in high-crime
neighborhoods to bring the crime rate down dramatically. Some years
ago, when little East Palo Alto, California, had the highest murder
rate in the nation, a law enforcement crackdown drove that murder rate
way down in just one year by taking a relative handful of career
criminals off the streets.

Justice Kennedy pointed out that a higher percentage of our population
is imprisoned than the percentage of the population in some other
countries. But it has been precisely since we started locking up more
criminals in the 1980s that our crime rates finally began to turn downward.

"Our sentences are too long," Justice Kennedy also told the American
Bar Association. Compared to what? Compared to sentences in Europe?
Justice Kennedy has apparently become a citizen of the world, even
citing foreign legal precedents in a recent Supreme Court opinion.

Our laws were not made to deal with conditions in Europe. Our judges
are sworn to uphold the Constitution of the United States -- not the
European Union. If Justice Kennedy finds all this too parochial and
confining, he is free to resign from the Supreme Court of the United
States and go join the International Court of Justice at The Hague.

Justice Anthony Kennedy is a classic example of someone appointed to
the Supreme Court by a conservative Republican, who arrives bearing
the "conservative" label, but who then goes native in Washington --
or, as the liberals say, "grows."

Backbone is infinitely more important than ideological labels because
all the influences and incentives are to move leftward. That is how
you get the applause of the American Bar Association, good ink in the
liberal press, acclaim in the elite law schools and invitations to
tony Georgetown parties.

We can only hope that the Bush administration does not succumb to the
Senate Democrats' filibuster threat by appointing more Anthony
Kennedys to the federal courts. These appointments last a lifetime --
which is too long a sentence for crime victims.

Thomas Sowell is a senior fellow at the Hoover Institution, Stanford
University, Stanford, CA 94305.