A JUSTICE SPEAKS OUT

Identify the speaker, commenting on the United States incarceration rate of one
in every 143 citizens and calling for the end of mandatory minimum sentences
that have filled our prisons to bursting. "Our resources are misspent, our
punishments too severe, our sentences too long. A people confident in its laws
and institutions should not be ashamed of mercy." Is it liberal law professor
Lawrence Tribe of Harvard? No, then perhaps it's former attorney general Ramsey
Clark. Not him either. Supreme Court Justice Ruth Bader Ginsberg? Wrong again.
It's Justice Anthony M. Kennedy, a long-standing member of the high court's
conservative majority since he was appointed in 1988 by President Reagan.

Mr. Kennedy sits at the approximate center of a Supreme Court legal experts
call the most conservative in more than a century. Yet this year's term
produced some surprises as Mr. Kennedy and Justice Sandra Day O'Connor led the
way in decisions striking down state restrictions on private sexual conduct,
and upholding affirmative action in law school admissions, decisions which in
their language defy the labels of liberal and conservative.

In a speech to the American Bar Association, Justice Kennedy called on Congress
to end mandatory minimum sentences, which he called unnecessary and unjust. Mr.
Kennedy spoke for many judges on state and federal benches, who have seen their
discretion in sentencing eroded by statutes passed by lawmakers who want to be
seen as "tough on crime." Many New York state judges are openly contemptuous of
the 30-year-old Rockefeller drug laws, which establish Draconian sentences for
minor offenses, yet the Legislature cannot bring itself to overturn them
despite their manifest injustice and budget-busting effect on the state prison
system. Mr. Kennedy wants judges to be able to judge, to temper justice with
mercy. Otherwise, he says, we might as well turn everything over to the
prosecutors and dispense with judges entirely.

These are not the views of Congress and the Bush administration. Last spring,
Congress passed a measure aimed at forcing judges to follow stricter sentencing
guidelines, and in response, Attorney General John Ashcroft ordered all federal
prosecutors to closely monitor which judges impose sentences more lenient than
federal guidelines recommend.

Mr. Kennedy did not mention Mr. Ashcroft, but he clearly had the lock 'em up
mentality in mind when he spoke of "the improper refusal to acknowledge that
the more than two million inmates in the United States are human beings whose
minds and spirits we must try to reach." He urged lawyers to work within the
state and local pardon processes to help those serving under mandatory
sentences.

Justice Kennedy clearly believes deeply in the Supreme Court's role as a
guarantor of justice in this country, and in the judiciary's independent role
in protecting citizens against unjust laws that injure their rights. When a
justice of the Supreme Court speaks out this way, every American should listen.