NY Times notes Justice Kennedy's criminal justice perspective

Today's New York Times has this extended editorial effectively contextualizing recent comments by SCOTUS Justice Anthony Kennedy headlined "Justice Kennedy’s Plea to Congress." Here are excerpts:

Members of the Supreme Court rarely speak publicly about their views on the sorts of issues that are likely to come before them. So it was notable when Justices Anthony Kennedy and Stephen Breyer sat before a House appropriations subcommittee recently and talked about the plight of the American criminal justice system.

Justice Kennedy did not mince his words. “In many respects, I think it’s broken,” he said. It was a good reminder of the urgency of the problem, and a stark challenge to a Congress that remains unable to pass any meaningful sentencing reform, despite the introduction of multiple bipartisan bills over the past two years....

“The corrections system is one of the most overlooked, misunderstood institutions we have in our entire government,” he said. He chastised the legal profession for being focused only on questions of guilt and innocence, and not what comes after. “We have no interest in corrections,” he said. “Nobody looks at it.”

That is not entirely fair; many lawyers and legal scholars have devoted their careers to studying the phenomenon of mass incarceration in America and to improving intolerable prison conditions. But Justice Kennedy was right that all too often decisions about sentencing and corrections are made without meaningful consideration of their long­-term costs and benefits, or of their effect on the millions of people who spend decades behind bars. “This idea of total incarceration just isn’t working,” he said. “And it’s not humane.”...

Justice Kennedy — whose regular role as the swing vote on a closely divided court gives him tremendous power — has a mixed record on [the Eighth] amendment.  Several times he has voted to uphold breathtakingly long sentences for nonviolent crimes.  For example, in two 2003 cases, he joined the five­-member majority that let stand sentences of 25 years to life and 50 years to life for men convicted in California of thefts totaling a few hundred dollars.

Justice Kennedy’s response to such manifestly unjust results is that fixing prison sentences is the job of lawmakers, not the courts. But that too easily absolves the justices of their constitutional responsibility.  The four justices dissenting in the California cases argued that those grossly disproportionate sentences violated the Eighth Amendment.

In more recent years, Justice Kennedy has increasingly invoked the amendment in sentencing cases, as he did in writing the 2008 decision prohibiting the death penalty as a punishment for child rape, and in 2010 and 2012 when he voted to bar sentences of life without parole for juveniles in most circumstances. He also relied on it in a 2011 decision ordering California to reduce overcrowding in its prisons, a condition that threatened inmates’ physical and mental health.

Justice Breyer, who before joining the court helped design the modern federal sentencing guidelines in the 1980s, told the committee of his own concerns about the justice system, and in particular was sharply critical of mandatory minimum sentences. Such sentences, he told the representatives, are “a terrible idea.”

The justices were right to lay these issues directly at Congress’s door. They can accomplish only so much on their own. Meanwhile, states from Texas to California to New York to Mississippi have been reforming their prisons and their sentencing laws for several years now, with overwhelmingly positive results. Now it is Congress’s turn to reform the unjustly harsh and ineffective sentencing laws it passed in the first place.

Prior related post:

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