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Back to list of Dissenting Opinions

Sep 22, 2003 - Associated Press

Justice Calls Mandatory Sentences `Bad Policy'

Mandatory minimum sentences passed by Congress are "bad policy," Supreme Court Justice Stephen Breyer said yesterday.

Breyer, who had considerable influence on fashioning federal sentencing guidelines as a member of the US Sentencing Commission in the 1980s, said flexibility was needed in sentencing.

"There has to be oil in the gears. . . .There has to be room for the unusual or the exceptional case," he said.

Breyer was speaking to a crowd of about 550 at the John F. Kennedy Library and Museum.

Breyer said Congress had passed a number of statutes where "there is no room for flexibility on the downside."

"That is not a helpful thing to do," he said. "It's not going to advance the cause of law enforcement in my opinion, and it's going to set back the cause of fairness in sentencing."

Last month, Justice Anthony M. Kennedy told the annual meeting of the American Bar Association that he favored scrapping the practice of setting mandatory minimum sentences for some federal crimes, saying that in all too many cases the sentences were unjust.

Breyer said that he, Kennedy, Chief Justice William H. Rehnquist, and "others on our court" had reservations about the mandatory minimum sentences. The federal sentencing guidelines provide judges a range of possible punishments for most crimes. The system also allows judges to
"depart" from the guidelines, imposing either tougher or more lenient sentences in special cases.

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