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August 12, 2004

ABA Justice Kennedy Commission Report and its Namesake

Post from Ron:
Last year, Justice Kennedy addressed the annual meeting of the ABA and had some striking and unflattering things to say about criminal punishment in the United States, particularly in the federal system. He called for involvement in these issues by all lawyers. What he got was a committee; maybe the wider involvement by lawyers will happen in due time.

The ABA Justice Kennedy Commission has now issued four reports, and all four were approved by the ABA House of Delegates last Saturday. The published version arrived yesterday, including a new section of the report dealing with Blakely. A link for downloading is available below. The first of the four reports deals with "Punishment, Incarceration, and Sentencing." The second addresses "Racial and Ethnic Disparity in the Criminal Justice System," while the third discusses "Clemency, Sentence Reduction, and Restoration of Rights." The fourth talks about "Prison Conditions and Prisoner Re-entry."

I will comment on the report a bit later. For now let me just observe the appropriate posture of Justice Kennedy in this sequence of events. His comments to the ABA, framed at a suitable level of abstraction, were a real catalyst for both reflection and action by lawyers. He (properly) did not participate in the proceedings of the Commission, and accepted the report and recommendation of the group with courtesy but without endorsing its content. And in his Blakely dissenting opinion, Justice Kennedy made it clear that he draws a distinction between his policy views on federal sentencing (he would presumably change a great deal about the system) and his constitutional interpretation (he would have affirmed the Washington guidelines).

Download JusticeKennedyCommissionReports-11Aug2004.pdf (523 KB)

August 12, 2004 at 10:20 AM | Permalink

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