New York Times again a little off editorializing on "Justice Kennedy on Prisons"

The title of this post is the headline of this editorial appearing in today's New York Times.  Here are excerpts:

Justice Anthony Kennedy spoke out against excessive prison sentences this month in California, criticizing the state’s deeply misguided three-strikes law. It was a welcome message, delivered with unusual force.  Much of the blame for the law, however, lies with the Supreme Court, which upheld it in a decision on which Justice Kennedy cast the deciding vote....

Sentences in the United States are eight times longer than those handed out in Europe, Justice Kennedy said. California has 185,000 people in prison at a cost of $32,500 each per year, he said. He urged voters and elected officials to compare taxpayer spending on prisons with spending on elementary education.  Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one.  The law’s sponsor, he said, is the correctional officers’ union, “and that is sick.”

The criticism was on the mark.  The state’s prison population has soared as a result of harsh sentencing laws and parole rules.  California has been ordered by the courts to bring down the population of its prison system, which is badly overcrowded and unable to provide inmates with adequate medical care....

Justice Kennedy is right that elected officials and voters should pay more attention to overincarceration.  But courts also need to do their part by enforcing constitutional prohibitions on excessive punishment in cases involving people, as well as corporations.

As with many New York Times editorials, this piece raises important issues in an imperfect way.  Specifically, though I share the editorial's concern for the Supreme Court's tepid approach to the Eighth Amendment in non-capital cases, I find inane and pernicious the assertion that "[m]uch of the blame" for California's three-strikes law "lies with the Supreme Court."

Though one can (and I think should) fault the Supreme Court for problematic interpretations of various constitutional provisions, the Court does not merit any blame (let alone "much of the blame") for state decisions to pass stupid or harmful criminal laws and punishment.  Unless and until we collectively decide to give the Justices constitutional authority to be a super-legislature, they cannot and should not be legitimately "blamed" for failing to invalidate stupid or harmful criminal laws and punishments that states decided to adopt. 

Moreover, even if the Supreme Court had struck down one application of California's three-strikes law in the Ewing case, probably only a few hundred of the many tens of thousands incarcerated under this law would have gotten some form of legal relief.  In sharp contrast, the recent rulings by a special Ninth Circuit panel ordering a reduction in California's total prison population, has effectively forced elected officials and voters in California to "pay more attention to overincarceration."  Indeed, the Supreme Court has been asked by California to undo these ordered prison population reductions, and I suspect Justice Kennedy has played a key role in keeping the Justices from interfering with those important orders.