Friday, April 11, 2003
Copyright © Las Vegas Review-Journal

EDITORIAL: Doing too much time

Chorus of protest against mandatory minimum sentences gains voices

Supreme Court Justice Anthony Kennedy joined a growing chorus of critics inside and outside the judiciary who want to see so-called mandatory minimum prison sentences revamped ... if not scrapped altogether.

Testifying before a House committee on Wednesday, Justice Kennedy railed against hidebound sentencing policies -- often set by lawmakers -- which deny judges the flexibility and discretion to hand down penalties that are appropriate to the severity of the offenses committed.

As a consequence of such mandatory sentences -- first imposed by federal lawmakers in 1986 to take drug "kingpins" off the streets -- more than 2 million Americans are incarcerated ... even though a disproportionate share of the mandatory minimums have resulted in long-term prison sentences for nonviolent drug offenders rather than armed robbers, kidnappers, rapists, murderers and other dangerous predators.

With fellow Justice Clarence Thomas at his side, nodding in apparent agreement, Justice Kennedy used the following hypothetical example to explain the injustice inherent when a nonviolent drug offender is convicted under mandatory sentencing policies:

"You'll have a young man, and he shouldn't be doing this, but he's raising marijuana in the woods. That makes him a `distributor.' And he's got his dad's hunting rifle in the car, he forgot about it and he wants to do target practice, that makes him `armed.' He's looking at 15 years," the justice said. "An 18-year-old doesn't know how long 15 years is. And it's not so much the sentencing guidelines, it's the mandatory minimums. That's the problem."

How right he is. And Justice Kennedy is not alone. Chief Justice William Rehnquist has also criticized mandatory sentencing rules -- not that he's "soft on crime," but because those penalties limit the ability of jurists to perform their duties as judges ... to determine to what extent a convict poses a risk to civil society and whether some form of punishment other than incarceration might be a more effective deterrent, agent of rehabilitation or means of restitution.

Despite Justice Kennedy's passionate remarks, there seems to be little interest among lawmakers to reverse the trend of imposing ever-higher mandatory minimum sentences. ACLU counsel Mary Johnson told CNN the newly proposed Amber Alert legislation, designed to protect children, contains new mandatory sentencing requirements. Attempts to pose legal challenges to the policies at the state level -- or convince legislators to repeal them -- typically hit a dead end.

"Winston Churchill said a society is measured by how it treats the least deserving of its people," the justice said. "And 2 million people in prison in this country is just unacceptable."

Amen to that.