"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Wednesday, July 12, 2006

Kennedy Whines About Stiff Sentencing

Justice Kennedy, obviously feeling comfortable among his own at a judicial conference for the 9th Circuit, complained about "lengthy" sentences:
U.S. Supreme Court Justice Anthony M. Kennedy told a gathering of judges Monday that he is troubled by lengthy prison terms meted out in the U.S. "If an 18-year-old is growing marijuana for a friend, that's distribution," the Sacramento native told judges, lawyers and court officials at the conference, held at the Hyatt Regency. "If he has his father's .22 rifle, that's a firearm. That will get 15 years. "Did you know what 15 years was when you were 18? I didn't when I was 18."
Kennedy said that sentences in the U.S. are eight times longer than sentences in Europe and that California alone has 200,000 people incarcerated. He said there needs to be more education of the public on the length of sentences. "If sentences are to be a deterrent, what is the good of them if nobody knows how long they are?" he said.

It's interesting to see Kennedy pick up the internationalist banner formerly carried by Justice O'Connor, comparing our system unfavorably with Europe's.

It's also interesting to note that Kennedy can practice such a cheap form of demagoguery in positing the scenario of a poor kid with a .22 giving some pot to a friend, as though that is a representative case seen in the 9th Circuit or anywhere else. What really bothers him and most judges about mandatory sentences is that the people have gotten fed up with coddling drug dealers, especially armed ones, and have decided to take the judges' discretion away in sentencing these offenders.

They can complain all they like about the will of the people and what they think about the leniency of judges, but the judges have only themselves to blame.

HT: Sentencing_Law_and_Policy.

UPDATE: By the way, since Kennedy, travelling in O'Connor's footsteps, is so fond of European jurisprudence, will he support adoption of such European practices has non-unanimous jury verdicts, use of a defendant's silence at trial, and no exclusionary rule?


Anonymous said...

I think you are misstating his argument. He is arguing that a judges should have discretion to sentence below the mandatory minimum in cases where certain facts did not indicate that such a high sentence was warranted. So, in your “gun in the truck” hypo, where there was no actual threatening or use of the gun, the kid could get a lower sentence, but where an armed drug dealer shoots someone, or even commits what is commonly known as “assault” a higher sentence could be given. Good prosecutors are perfectly capable of making arguments as to why someone of the lower classes (or at least a lower social class than the judge grew up in) should get a higher sentence.

With all respect, “the people” have little to do with criminal justice. Decisions (as to substantive law, charging, and sentencing) are made by people who will rarely, if ever, have anything to do with people that might face arrest. Even though juries are involved in the sentencing process, in most states (and the federal system) they are forbidden from knowing the extent of jail time the defendant is facing. (I concede this is somewhat different in your state, but I don’t know the details.)

If you want to go down the mandatory route, perhaps it would be better to simply open the floodgates, and disclose to the jury what the range of sentences a defendant is facing. This way, “the people” (who, as I said are just too stupid to write laws or exercise the difficult discretion that you do) will be able to decide if one of their fellow people will spend the rest of their lives being gang-raped by a prison guard (or the prison guard’s friends) or not.

Windypundit said...

It's also interesting to note that Kennedy can practice such a cheap form of demagoguery in positing the scenario of a poor kid with a .22 giving some pot to a friend, as though that is a representative case seen in the 9th Circuit or anywhere else.

So that would never happen? The police would never bring a prosecutor a case like that?

Or is it that sending the occasional kid like that to jail for 15 years is just a side effect of punishing serious criminals? Is it a necessary evil in the war on drugs?

Or does that kid deserve to do the 15 years for that?

Or would the prosecutor be expected to offer a plea deal, thus taking on the role of judge for himself?

Tom McKenna said...

Of course it could happen. My beef with Kennedy is that positing the most extreme example you can imagine is not effective argument, it is demogoguery.

And of course the prosecutor can offer a plea in such a case to some lesser charge... most I know would in such an "extreme" case. But again, the people trust their elected prosecutor to make that call more than they trust a far less accountable judge. The judiciary has created the need for mandatory sentences by their history of weak sentencing. If you want to talk extreme cases, like Kennedy cites, there are plenty to show the utter imbecility of judges when it comes to sentencing. Those examples are what lead to the movement for mandatory sentencing.

Anonymous said...

Tom, You posit the most extreme examples you can all the time. In fact, I would hazzard to say that your entire blog is nothing more than a series of extreme examples. Not that there is anything wrong with this. For better or worse, “extreme examples” are the experience which makes the law.

I don’t think that the judiciary really has history of “weak” sentence. This is a propaganda ploy, which, for better or worse, a few members of my family have gotten elected using. Instead, given discretion without criteria, there may be divergence of sentences. Whether the divergence is on the “weak” side or the “strong” side is anyone’s guess.

To illustrate, because of my position in society, I am frightened of poor people. I have what poor people want: money. Therefore, I think that poor people (e.g. people lacking a college education) should be punished extremely harshly for property crimes. It doesn’t matter whether they need the money more than I do, they must be deterred from touching my stuff. If a judge decides that one poor person should serve less than a year in jail for touching my stuff, it is a weak sentence.

I don’t, on the other hand, care too much about drug crimes. Why? Because drug dealers pretty much only injure their own kind. Sure, drugs probably have some relationship to property crimes, but the police can easily take care of any person who wants to steal from people to buy drugs. (And, besides, I think that 10-year sentences, handed out liberally to minorities will take care of these problems, and encourage crack addicts to get high-paying jobs.) Therefore, when I see a crackhead sentenced to a month or two in jail, I can only think of the increased tax burden that prosecutors (who are unable to work in the private sector due to a lack of qualifications and extreme laziness) are simply unable to appreciate the free market because they hate America. In fact, I would even go so far as to say that in charging drug crimes, prosecutors are harming me MORE than any thief ever could. Therefore, to me, any sentence for a drug crime, beyond restitution is too much, unless the drug crime is somehow related property crime.

I should note Tom, that in college, I had a job writing press releases for people who liked to troll the lay people with the “judges are giving low sentences” crap. I feel sort of guilty, because 1) the lay people bought it; and 2) none of it actually was based on whether the judges applied the law correctly or even the arguments that the parties made. But, as most people realize: politics has nothing to do with law.

Faithmy said...

"To illustrate, because of my position in society, I am frightened of poor people. I have what poor people want: money"

So I should be frightened of you since I have intelligence and you are so clearly lacking? Or should I fear you because you are obviously in desperate need of a life and I have one?

Anonymous said...

Faith, It is generally bad form to state a position in terms of what is “clear” but, instead, you should probably explain what logical links you have taken to get to such a conclusion. For instance, rather than saying that the above poster’s intelligence is “clearly” lacking, you would probably want to debunk their argument. This is what separates us from the terrorists.

Anonymous said...

Actually, J Kennedy's example is not all that extreme, at least within the federal courts. The defendants I have in federal court on drug charges get, on average, 12 years. Thats 12 years with no parole, since parole is abolished at the federal level. You might get some good time from the BOP, but its 54 days on the year, I think, and its not easy to get.

The 12 years is for a straight up plea deal. Go to trial, the results are typically 25+ years.

A fellow lawyer was handling two cases at the same time. One was in state court for two counts of 1st degree child molestation. The other was in federal court for one count of distribution of crack. Both ended up getting 17 year sentences, although the child molester will likely get out first.

These are not necessarily hardened, violent drug lords. These are poor fools who have no control over themselves. "White trash" and rural blacks who get charged with distribution, like some machine gun toting cocaine smuggler, simply for having a handfull of pills or getting a rock of crack for a friend. I've had several clients who became hooked on pain pills in the hospital then had to turn to heroin on the outside just so they won't hurt anymore, and they get sent to the fed pen for over a decade.

These things are not extreme. These are TYPICAL. These are cases WITH plea deals. God help the fools who don't plea, since the AUSA will pile on so much drug weight at sentencing (95% of which is coming from other convicts) that they end up with 20+ year sentences.

And lets not forget who pays for all this. For all the prisons and prison guards and extra police and prosecutors and defense attorneys. (I make on average about 5k per indigent defendant in federal court who pleads guilty, and this is in West Virginia.) The costs to fund these atrocities are mind-boggling.

Anonymous said...

Well, anonymous, we could make the process better, by eliminating defense attorneys, thereby allowing us to incarcerate 25% more people per year for the same price. Probably 35% if you factor in the innocent people who can be convinced to plead guilty by an threat of beating or an offer of cheeseburgers without the presence of counsel. Tom proposes a wonderful new world.