JUSTICE KENNEDY SPEAKS OUT

We hope that both the members of Congress and the Bush administration
were paying attention last weekend when Supreme Court Justice Anthony
Kennedy, a tough-on-crime Reagan appointee, decried harsh and
inflexible sentencing policies. Justice Kennedy was speaking for legal
experts from across the political spectrum when he said the current
rules misspent America's criminal justice resources by locking up
people for irrationally long amounts of time.

The nation's inmate population reached 2.1 million, a record, last
year. One major factor behind the increase has been the imposition of
the mandatory minimum sentences contained in many federal laws,
especially drug laws. A second reason for the rise is the effect of
federal sentencing guidelines, which were adopted in the mid-1980's to
make criminal sentences in federal cases more uniform. These two
measures have both pressured judges to give longer sentences than they
otherwise would.

Justice Kennedy, speaking to the American Bar Association's annual
convention, said he supported sentencing guidelines in principle, but
that they must be "revised downward" to less draconian levels. As for
the mandatory minimums, the inflexible minimum sentences written into
some laws, Justice Kennedy said he could accept neither their
"necessity" nor their "wisdom." He is hardly alone, even among
conservatives, in raising these objections. Chief Justice William
Rehnquist has complained that inflexible sentencing rules may threaten
judicial independence. And Judge John Martin Jr., appointed by the
first President George Bush, has announced that he is leaving the
federal bench rather than remain part of "a sentencing system that is
unnecessarily cruel and rigid."

Even as these objections are being raised, the Bush administration and
Congressional Republicans are making the situation worse. They have
enacted a new law, called the Feeney Amendment, that reduces judges'
discretion to impose sentences less severe than those called for by
the guidelines. And Attorney General John Ashcroft has announced plans
to track individual judges' sentencing records, an intimidating move
that critics are calling a judicial blacklist.

Justice Kennedy cast the deciding vote this year in upholding lengthy
sentences for minor crimes under California's "three strikes" law. But
as he told the association, a court can call something permissible
that is not necessarily "wise or just." Mandatory minimums and overly
harsh federal sentencing guidelines are not wise or just. If the Bush
administration does not believe the liberal critics, it should take
the word of the growing number of conservatives who are calling for
reform.