United States Supreme Court Justice Anthony M. Kennedy, keynote address, American Bar Association annual meeting in San Francisco, August 2003

President Carlton, President-Elect Archer and my fellow citizens devoted to the idea and the reality of the rule of law, thank you for your welcome and for your friendship.

Since we last met in this city tumultuous and tragic events have occurred. Some people say that the world has changed. In another sense the world is the same but we have a new understanding of its perils and its dangers and its opportunities.

At the beginning of the last century democracy and open societies were attacked in their own countries, by their own citizens. Stalin, Hitler, Mussolini did not think that an open democracy committed to the rule of law could protect the stability and the progress of their peoples. And that attack was repulsed.

Now, the attack on freedom, is being made by people from outside our countries but they are sworn, dedicated mortal enemies of our freedom. We can meet that challenge and we can prevail. Americans think it's somewhat unfair, and our Western allies and our allies around the globe who believe in freedom think it's somewhat unfair, that in the last century we made the case for freedom. We prevailed. A rational dispassionate world agreed. And now we have to make the case all over again.

But that's the way history is. History does not feel bound by the principles of re adjudicata.

The case for freedom, the case for our constitutional principles the case for our heritage has to be made anew in each generation. The work of freedom is never done.

Now embedded in the idea of democracy is the idea of progress. They work hand in hand as we seek to come ever closer to a more just society. Jefferson talked always of freedom and self governance. One cannot sustain itself without the other. And self governance and progress toward a more decent civil order depends on political will. And political will depends on a rational, informed enlightened discourse. And in our society where so many problems are related to law and to justice, the burden of initiating that discourse falls disproportionately on the legal profession. And this impressive, pluralistic assembly representing so many parts of our rich and diverse society has as its mission the shaping of that discourse, the shaping of that dialog. That is part of our mission as lawyers and that is part of the mission of this great association.

You have many issues to consider here. Permit me to talk with you about just two of them.

I wish first to talk about the injustices, the inefficiencies and the suffering in our prison and correctional systems. And I wish to talk to you in a more optimistic vein briefly about the splendid young people who took place in the dialog of freedom that President Carlton has just mentioned.

Let me begin with prisons.

Please, don't tune out because you're not a criminal lawyer. Please, don't tune out and say, 'Well I'll tune back in when he gets on some other subject', because you're not a lawyer at all. This is your justice system and they're your prisons and there's something seriously wrong with them.

I think the Father will agree with me that when the gospel promises some mitigation on judgment day "if it can be said of you I was in prison and you came unto me". That gospel promise does not contain an exemption for transaction lawyers or civil practitioners.


Now we must begin with a stark reality about our prisons. For decades the legal profession has always had a focus, arguably an obsessive focus, with the determination of guilt or innocence. And once the trial process, and the appellate process and the collateral review process have been completed, and once the prisoner is taken away, the legal profession by and large loses all interest in the prisoner. It simply turns to the next case.

The door is locked against the prisoner and he goes to live in a hidden world. If you were to enter that world you should be startled by what you see.

In the United States today we have 2.1 million people behind bars. In this state, even as we meet, the state of Ca. alone, excluding federal prisons, has over 160 thousand prisoners.

Forty percent of the prisoners nationwide are African Americans. The highest rate of incarceration for any ethnic group are young men in their mid to late twenties. And in the United States one in 10 African Americans in that age group are behind bars.

Our incarceration rate in the US, per capita, is about eight times as high as that of England, France or Germany. Their per capita incarceration rate is about 1 in 1,000. Ours is one in 143.

It's the human costs that count. But we get some insight into that if we look at raw economic costs. It costs 26 thousand dollars a year in the state of California and in many other jurisdictions to keep one prisoner.

To compare this with school costs is like apples and oranges, in a sense, schools do not have the responsibility for custody, feeding and medical care. Still, when the disproportion to the cost of incarceration and the cost of educating the young people who soon will be charged with keeping the social compact is as great as it is, something is wrong. And in my view our resources are being misspent, our punishments are too severe and our sentences are too long.

Let me turn for just a moment...


That's OK I've got a lifetime job.


Let me turn, for just a moment, to the federal system.

There are two sentencing mechanisms in the federal system. One is guidelines. A suggested range. The other are mandatory minimums and they're different.

The guidelines, in my view, are necessary. Before the guidelines there was a wild disparity between sentences that different judges would give. And there was a wild disparity between sentences one judge would give case to case. So the guidelines were necessary.

As my colleague Steven Breyer has pointed out however, the first thing the sentencing commission that made the guidelines had to do was to agree on the philosophy of corrections. And they had to make compromises. But the glue for the compromise in every case was to increase the length of the sentence. The guidelines should be retained but those guidelines should be revised downward.

Now. While I accept and endorse the necessity and the fairness of the guidelines, if revised downward, I accept neither the wisdom, the justice nor the necessity of mandatory minimums. In all too many cases they are unjust.


I'll give you an example of how this works.

A young man is on the George Washington Parkway which is a federal highway under the jurisdiction of federal park police, so federal law applies. He's stopped because he's not wearing a seat belt. He's eighteen years old. A search of the car reveals that he has a plastic bag with just over five grams of crack cocaine. His mandatory minimum sentence is five years.

Ladies and gentlemen I submit to you an eighteen year old doesn't know how long five years is.

Our United States Marshals, a wonderful law enforcement agency, tell me time after time of going to the home to pick up a young man to serve and his mother says, 'How long is my boy going to be gone?' and they will say five years or ten years or fifteen years, I could have given you some simple examples where there's ten and fifteen year maximums. [minimums]

Every day in prison is much longer than most any day you have ever spent. One of the great classics of our time is written by Alexander Solzhenitsyn talks about just one day in prison. Called "One day in the life of Ivan Denisovich", And the final reflection in the book is one in which Denisovich realizes that he's survived another day of peril and agony. And he multiplies his ten year sentence, he has a ten year sentence, by the number of days in the year. And the final passage of the book is something like this, 'It was an almost sunny day. It was an almost happy day. One day in a sentence of three thousand six hundred and fifty three years [days] from bell to bell.' The three extra days were for leap years.

Now, part of the federal mandatory minimums have resulted because there's a shift in discretion from the courts to the prosecutors. Sometimes to an assistant U.S. attorney not much older than the defendant. There is a shift from the one actor in the system that is trained in the use of the discretion. That gives reasons for it. That exercises it openly. And that's the judge. But the transfer is to the hidden parts of the prosecutors office. And these are young prosecutors who often, probably in most cases, are conscientious about their duties. But it is simply unwise to take away our discretion from our United States judges. Or, in similar systems in the state system.

Professor James Whittman of Yale has written a book called "Harsh Punishment" and he explains that part of the reason for long sentences is a coalescence of views on different sides of the political spectrum. On the one side there is the 'soft on crime' warning. On the other side there is a rigid insistence, an egalitarian insistence on the same sentence for everybody. And the agreement again is for longer sentences.

The court on which I sit, on which I serve, and many other courts, have upheld very rigorous and severe sentencing schemes. But please remember that because a court has said something is permissible, it is not necessarily wise. And this is a mistake that we see all too often in our public and civic discourse. And in the accounts of what our court has done, in the press. It is simply not proper, as a matter of self governance, as a matter of exercising your political will, as a matter of discharging your political responsibility, to just pass off policy issues to the courts.

And I hope this association will continue to take an interest in this matter. And I hope they will say to the congress 'please senators and please representatives, don't make these young men serve these long mandatory minimums. Please, don't take discretion away from the courts. When you're using the courts let the judges be judges.'


And please repeal the mandatory minimums.

I hope too, that the Bar will give consideration to ways in which we might reinvigorate the pardon and the clemency process. It's use has become most infrequent because of the soft on crime charge that's always made. And in all too many instances the pardon power has been drained of its moral force. It should be reinvigorated. A country which is secure in its institutions, confident in its laws should not be ashamed of the concept of mercy. As the greatest of poets has said 'mercy is the mightiest in the mightiest. It becomes the throned monarch better than his crown.' And I hope lawyers will more often say, to chief executives, Mr. President, or your excellency the governor, 'this young man has not served his entire term but he's served long enough. Give him what only you can give him. Give him another chance. Give him a priceless gift. Give him liberty'.


Now its not just the severity of sentences but the conditions and the purposes of confinement. Professor Whittman makes the charge, that the purpose and the mission of our prisons is to degrade and to demean the prisoner and to deprive them of their dignity and that is a serious charge. I think this association should look carefully at that charge.

The debate on the purposes of prison, should it be deterrence, should it be prevention, should it be rehabilitation, has been going on for a long time. But please don't think it's a tired debate. That debate must be renewed given the number of people we have in our prisons. We have to find some way to bridge the gap between skepticism about rehabilitation and the fact that so many of your fellow citizens, and your fellow humans, are being maintained in prison. And we have to ask, 'Why are they there?' We have to ask if there are better ways to prevent the addiction to crime which causes the cycle of recidivism.

Now there are powerful reasons for confining some prisoners and thereby incapacitating them from committing further crimes. In some classes of cases after the prisoner has been convicted we find out that he has committed scores of crimes before he was apprehended so one conviction serves to incapacitate someone for scores of crimes. So there are reasons for incapacitation.

But that simply can't be the sole function of our prisons. There are people who devote their lives to bettering the cause of prisoners. But they can't bring them, [stumbling on a part], what do you call a tape deck that you can listen to with earphones, a Walkman. The prisoner can't get a course in music or philosophy or religion. And of course this may be reaching too high for many because one in five prisoners is functionally illiterate and of those at least half are absolutely illiterate.

This is not to say that prisons are not trying in some instances. There are education programs in all the federal prisons and most state prisons. A substantial number of prisoners get their General Education degree. But it is not enough.

Out of sight out of mind is not acceptable for any part of our justice system. And those of you who are civil practitioners can use your talents in organizing systems. In forming corporations. In finding evidence. In urging governmental policies. To help your association address these problems. I've talked just today with President Carlton and President-elect Archer and they confirm that it would not be presumptuous for me to ask this association, through its appropriate committees, to report on these matters.

To the American people, it is not acceptable, for all of our prisoners and for all of our prisons to borrow a sign from Mr. Dante's "Inferno", 'Leave aside all hope ye who enter here.' This we cannot do.


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