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February 16, 2010

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.

February 16, 2010 at 12:01 PM | Permalink


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As a reentry case manager, and as a former offender, I find your use of "inane" and "pernicious" inappropriate. While you "share the editorial's concern for the Supreme Court's tepid approach to the Eighth Amendment in non-capital cases," you absolve SCOTUS of "any blame" for allowing the continued overincarceration occasioned by California's three-strike law. I perceive a disconnect there. I don't think it overreaching to expect SCOTUS to strike down California's current three-strike law. Rather, I believe it the court's responsibility.

By the way, exactly how many persons have been sentenced under that law?

Posted by: James | Feb 17, 2010 10:02:24 AM


I fully agree that the Supreme Court has a constitutional responsibility to strike down sentences that are "cruel and unusual." But, as detailed in a website urging changes to Cal's 3X laws(http://facts1.live.radicaldesigns.org/section.php?id=55), only about 10% of persons in Cal prisons based on 2d or 3d strikes are there because of a nonviolent 2d strike (4000+ out of 40,000+), and fewer than 1% of those persons are there for the precisse type of crime/punishment upheld by SCOTUS in Ewing (< 400).

The trule "blame" for Cal's 3X laws should be placed, first and foremost, on Cal politicians and voters who enacted these laws and who have refused repeatedly to change them. We could also "blame" some Cal prosecutors who are sometimes (often?) eager to apply 3X laws in extreme ways. And if you really want to blame COURTS for contibuting to these policy problems, let's start with the California Supreme Court and/or other STATE courts who have an on-going responsibility to strike down state laws whenever they transgress either the US constitution OR the Cal state constitution.

Against this backdrop, I still consider the eagerness of the NYT to place "much of the blame" on SCOTUS for Cal's sentencing/prison problems to be "inane" and "pernicious." It is inane because even a SCOTUS ruling in Ewing's favor would have likely only impacted one rare (though extreme) application of the Cal 3-strike law. It is "pernicious" because it lets all of the truly responsible actors --- Cal politicians and voters, Cal prosecutors and judges --- off the hook for their CONTINUING roles/responsibilities in this profound policy mess.

Finally, circa 2010, SCOTUS --- and probably Justice Kennedy in particular --- should be greatly credited for not disrupting the (far more consequential) ordered prison population reductions coming from the Ninth Circuit special panel. Notably, this order and its implimentation are squarely the responsibility of federal courts, and that is the setting in which allocation of blame/credit should be responsibily directed.

Posted by: Doug B. | Feb 17, 2010 10:37:22 AM

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