JUSTICE KENNEDY: SHORTEN FED PRISON TERMS

SAN FRANCISCO -- Supreme Court Justice Anthony M. Kennedy said
Saturday that prison terms are too long and that he favors scrapping
the practice of setting mandatory minimum sentences for some federal
crimes.

"Our resources are misspent, our punishments too severe, our sentences
too long," Kennedy told the annual meeting of the American Bar
Association, his remark met by long applause.

"I can accept neither the necessity nor the wisdom of federal
mandatory minimum sentences," Kennedy said. "In all too many cases,
mandatory minimum sentences are unjust."

Kennedy is a moderate conservative placed on the court by former
President Ronald Reagan. His criticism puts him at odds with Attorney
General John Ashcroft, who wants prosecutors to closely monitor which
judges impose more lenient sentences than federal guidelines
recommend. Such oversight, critics say, could limit judicial
independence.

Kennedy said he agrees with the need for federal sentencing
guidelines. The 15-year-old system gives judges a range of possible
punishments for most crimes and eliminates some of the disparities in
terms imposed by different judges for the same crime.

Still, the guidelines lead to longer prison terms than were common
before, Kennedy said.

"We should revisit this compromise," he said. "The federal sentencing
guidelines should be revised downward."

Prosecutors often ask for sentences at or near the top of the
guideline range, and defense lawyers ask for terms at or even below
the bottom. Judges have some freedom to "downwardly depart," from the
guidelines and hand down a lesser punishment.

Ashcroft recently directed U.S. attorneys to promptly report to
Justice Department headquarters any such departures that are not part
of a plea agreement in exchange for cooperation.

"The Department of Justice has a solemn obligation to ensure that laws
concerning criminal sentencing are faithfully, fairly and consistently
enforced," Ashcroft wrote in a memo issued July 28.

Kennedy did not address Ashcroft's directive.

The justice asked the ABA to lobby Congress to repeal mandatory
minimum sentence laws, even though they have withstood court scrutiny.

"The court on which I set and other courts have upheld long sentences,
but please remember because a court has said something is permissible
does not mean it is wise," Kennedy said.

Kennedy voted with the Supreme Court majority this year to uphold
California's toughest-in-the-nation law mandating 25-year minimum
prison terms for three-time felons.

Kennedy also urged the ABA to consider working to extend pardons for
state and federal prisoners serving harsh terms.

"The pardon process, of late, seems to have been drained of its moral
force. Pardons are infrequent," Kennedy said. "A people confident in
its laws and institutions should not be ashamed of mercy."

Kennedy asked lawyers to think about the consequences of the current
prison system, including what he called its "remarkable scale" of
about 2.1 million people behind bars nationwide and the fact that
about 40 percent of the prison population is black.

"It is no defense if our current system is more the product of neglect
than of purpose," Kennedy said. "Out of sight, out of mind is not
acceptable for any part of our justice system."

American Bar Association: http://www.abanet.org