« Should prison terms end once criminals seem "too old" to recidivate? | Main | Ohio prison officials decide security drones are not (yet) cost effective »

March 24, 2015

Justices Kennedy and Breyer urge Congress to reform "broken" federal criminal justice system

BreyerKennedyHearing-638x362This new ThinkProgress piece, headlined "Supreme Court Justices Implore Congress To Reform The Criminal Justice System — ‘It’s Not Humane’," effectively reports on the notable comments made about criminal justice reform by two Justices who were testifying before Congress on budget issues yesterday. Here are some of the details:

The prisons are one of the most misunderstood institutions of government. Solitary confinement drives individuals insane. And mandatory minimum sentences are a bad idea. These were the assertions of U.S. Supreme Court Justices Anthony Kennedy and Stephen Breyer in testimony before a House Appropriations subcommittee Monday afternoon.

Asked by Rep. Steve Womack (R-AR) about United States “capacity to deal with people with our current prison and jail overcrowding,” each justice gave an impassioned response in turn, calling on Congress to make things better. “In many respects, I think it’s broken,” Kennedy said of the corrections system. He lamented lawyer ignorance on this phase of the justice system:

I think, Mr. Chairman, that the corrections system is one of the most overlooked, misunderstood institutions we have in our entire government. In law school, I never heard about corrections. Lawyers are fascinated with the guilt/innocence adjudication process. Once the adjudication process is over, we have no interest in corrections. doctors know more about the corrections system and psychiatrists than we do. Nobody looks at it. California, my home state, had 187,000 people in jail at a cost of over $30,000 a prisoner. compare the amount they gave to school children, it was about $3,500 a year. Now, this is 24-hour care and so this is apples and oranges in a way. And this idea of total incarceration just isn’t working. and it’s not humane.

Kennedy, traditionally considered the swing vote among the current set of justices, recalled a recent case before the U.S. Supreme Court in which the defendant had been in solitary confinement for 25 years, and “lost his mind.”

“Solitary confinement literally drives men mad,” he said. He pointed out that European countries group difficult prisoners in cells of three or four where they have human contact, which “seems to work much better.” He added that “we haven’t given nearly the study, nearly enough thought, nearly enough investigative resources to looking at our correction system.”

Kennedy’s comments come just weeks after a federal review of U.S. solitary confinement policy also found that the United States holds more inmates in solitary confinement than any other developed nation. Confinement typically involves isolation in an often windowless cell with a steel door for 23 hours a day, with almost no human contact. The treatment has been found to have a psychological impact in as many as a few days, though, as Justice Kennedy pointed out, many are held for decades. In the wake of the new report, Sen. Dick Durbin (D-IL) called upon the Federal Bureau of Prisons to alter its practices.

In his response, Breyer honed in on Womack’s use of the word “priorities” to suggest that prioritizing long prison sentences was not the best use of resources. “Do you want to have mandatory minimums? I’ve said publicly many times that i think that’s a terrible idea,” Breyer said. “And I’ve given reasons, which I’ll spare you.”

“Is it worth your time on earth, or mine, to try to work out ways of prioritizing? I think it is,” Breyer said. “I think it is a big problem for the country. and so I can’t do anything more in the next minute or 30 seconds other than say I like the word prioritize. I hope you follow it up. And I hope do you examine the variety of ways that there of trying to prioritize and then work out one that’s pretty good.”

As far back as 1998, Breyer has called for the abolition of mandatory minimum sentences, which mandate minimum prison terms by law according to the crime, amount of drugs, or other factors, and give judges no discretion to lower those sentences. He has said they “set back the cause of justice” because they don’t allow for exceptions depending on the circumstances of a given case. Particularly for drug crimes, they have sent low-level drug offenders to prison for sentences that start at 5 or 10 years and quickly ratchet up from there.

This Wall Street Journal article, headlined "Two Supreme Court Justices Say Criminal-Justice System Isn’t Working: Justice Breyer says mandatory minimum sentences are 'a terrible idea'," provides some more notable quotes from the Justices.

March 24, 2015 at 09:51 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Justices Kennedy and Breyer urge Congress to reform "broken" federal criminal justice system:


What a distressing and deep misunderstanding the Justices have of prison. The purpose is to protect the public. It is not to treat. Treatment is weak at best if not a total scam. You give a prisoner a PhD. He cannot get a job due to the fear of prosecution and litigation against employers for negligent hiring even if the misconduct is irrelevant to the criminal record, such as in a car crash.

Say he gets a $10 an hour job. How does that compare to $100 an hour for criminal activity? The guy would have to be a self defeating fool to waste his contacts, criminal skills, and ongoing business practice.

I have repeatedly referred to a scientifically valid study showing solitary confinement to not harm anyone, and to benefit some.

The Justices want more power for pro-criminal judges to impose their sicko personal biases and feelings on the entire nation. The nation rejected these biases because of the massive criminality they caused in the 1970's and 1980's.

Posted by: Supremacy Claus | Mar 24, 2015 11:07:28 AM

The previous comment is so idiotic and probably bordering on being a slightly retarded one at that.

Posted by: 76ers | Mar 24, 2015 6:05:35 PM

76ers. Can you specify the mistakes. I have specified the errors of the Justices. Also, please disclose the fraction of your income that comes from government. We may then discount the credibility of your remarks by the same fraction. You are merely defending your criminal dependent big government income I am guessing. Certainly the two Justices are. In their case, the conflict of interest is 100%, and everything they say is economically self serving.

Posted by: Supremacy Claus | Mar 24, 2015 9:43:50 PM

So 2 justices of the USSC indicate that mandatory minimums are a bad idea. But 81 yr old chuck grassley from Iowa, says they Re needed to catch terrists with drugs.

Mr Grassley has no education in law, yet is chairing the senate judiciary committee and has the power to squash agenda items before they hit the table for discussion.

Why is Grassley at 81 still in the federal govt. It shows that the pace and scope of one doesnt really matter. The old saying, close enough for govt work, covers this well.

Chuck, go home, look out the window. Have your morning cup if coffee and snooze on your own time. Let someone fill your spot that can stand on there own and contribute.

Posted by: MidWestGuy | Mar 25, 2015 2:38:09 AM

The same may be said about vile feminist lawyer Ruth Ginsburg. Usually fatal pancreatic cancer did not slow her down. Despite her chemo brain and perpetual daytime sleeping, she just won't quit. It tells you about the power of hatred she feels of men and of this nation, keeps her going.

Posted by: Supremacy Claus | Mar 25, 2015 7:07:10 AM

I agree with you. Gensburg had a glass of wine and slept in front of the president and America.

My, she canr refrain from drinking in an important event like that. Its not a wedding reception.

My rule is 70 yrs old for any govt mainline job. They wouldnt cut out here in the jungle.

Posted by: MidWestGuy | Mar 25, 2015 5:34:07 PM

"Can you specify the mistakes." - all your statements are based on biased assumptions "please disclose the fraction of your income that comes from government." - zero, I'm not a public employee, nor do I depend on tax dollars to support myself but I do pay more than my fair share and I'm not on the dole for anything.

Posted by: 76ers | Mar 25, 2015 6:44:06 PM

Can you specify more, because your analysis is mere bilious ipse dixit?

Posted by: Supremacy Claus | Mar 26, 2015 3:50:49 AM

Your original argument by authority is weak. Always, especially difficult to take when it comes from people who believe that they're intelligent.

Posted by: 76ers | Mar 26, 2015 2:19:12 PM

Common law has since the 1600s allowed a judge to reduce sentences. It is only recently that legislatures who think they know better have usurp the public judges power. The idea that anyone can say that if you do an act, that it automatically deserves a minimum sentence of so many years was struck down in the 1600s. Before dictators defined that type of justice, and the common people said "no more", and gave the power to local judges to try each case individually, allowing flexibility of punishment to fit the crime.

Posted by: VAGuy | Mar 26, 2015 4:17:45 PM

How is New York's crime rate lower despite lower incarceration rates that other states. Of course new york still has a high poverty rate in many areas.

SC's logic is flawed, weren't crime rates lower when sentencing rates and lengths were lower in the 1950s and 1960s, even in the 1920s LWOP were not common even murder could get you off in 20 years unless it was an important figure or 1st degree brutal one.

Posted by: Alex | Mar 30, 2015 1:21:04 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB