Food for Thought.............Supreme Court Justice Anthony M. Kennedy : End Minimum Sentences

Supreme Court justice says they take discretion from judges, forestall mercy

By Pete Williams
NBC NEWS CORRESPONDENT

Aug. 9 — U.S. Supreme Court Justice Anthony Kennedy called on Congress Saturday to end mandatory minimum sentences, which he says are unwise and unjust, jamming U.S. prisons with young people who lose all hope.

KENNEDY’S CALL, in a speech prepared for delivery to the American Bar Association in San Francisco, is surprising, coming from a justice who is generally conservative on criminal justice issues.......

......The incarceration rate in the United States is about 1 out of every 143 persons. By contrast, Kennedy said, it’s only 1 in 1,000 in England, France, Italy and Germany

Another problem, according to Justice Kennedy, is that prosecutors can essentially dictate a sentence by deciding whether to bring charges that carry mandatory minimums.

“In my view, a transfer of sentencing discretion from a judge to an assistant U.S. attorney, often not much older than the defendant, is misguided. The policy gives the decision to an assistant prosecutor not trained in the exercise of discretion and takes discretion from a trial judge,” he said.

........His remarks come as many federal judges complain about new limitations on their ability to impose sentences that are lower than normal for a given crime. Restrictions on such “downward departures” were imposed in a law passed by Congress in April.

Since then, Attorney General John Ashcroft has directed the nation’s federal prosecutors to notify the Justice Department in Washington whenever judges issue sentences that fall below the normal guidelines. Officials will then consider whether to appeal the lighter sentences.

Kennedy, appointed by President Ronald Reagan, has been on the high court since 1988