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Justice Kennedy criticizes mandatory minimum sentences

From Brad Wright
CNN Washington Bureau

Justice Anthony Kennedy testifying Wednesday before the House Appropriations sub-committee on Commerce, State, and Justice.
Justice Anthony Kennedy testifying Wednesday before the House Appropriations sub-committee on Commerce, State, and Justice.

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WASHINGTON (CNN) -- Supreme Court Justice Anthony Kennedy struck the latest blow against mandatory minimum sentences, telling congressional lawmakers Wednesday that required jail terms are partly responsible for much of the prison overcrowding problem in the United States.

Mandatory minimum sentences, many of which are focused on convictions for drug crimes, were first enacted at the federal level in 1986 in the hope of putting away drug kingpins.

But street-level offenders comprise most of those jailed under these sentencing rules.

Longer sentences from such mandates have boosted prison populations, especially at the state level. To cut those populations and prison costs at a time of tight budgets, some states, including Michigan, have abolished rules requiring minimum jail time.

During testimony Wednesday before the House Appropriations Committee, Kennedy was asked to comment on statistics indicating for the first time that some 2 million Americans are behind bars.

"When the guilt determination phase and the sentencing is over," Kennedy said, "the legal system loses all interest in the prisoner. And this must change. Winston Churchill said a society is measured by how it treats the least deserving of its people. And two million people in prison in this country is just unacceptable."

Kennedy went on to explain the downside of mandatory minimum sentences in some circumstances, telling lawmakers, "You'll have a young man, and he shouldn't be doing this, but he's raising marijuana in the woods. That makes him a distributor. And he's got his dad's hunting rifle in the car, he forgot about it and he wants to do target practice, that makes him armed. He's looking at 15 years.

"An 18-year-old doesn't know how long 15 years is. And it's not so much the sentencing guidelines, it's the mandatory minimums. That's the problem," Kennedy said.

Kennedy said it is up to Congress and the judiciary to address the problem. Asked outside the hearing room whether he really believed Congress would re-examine mandatory minimums, Kennedy acknowledged the political difficulty for some congressmen in doing so, telling CNN, "It's the soft-on-crime issue."

Marv Johnson, legislative counsel with the American Civil Liberties Union, noted that new mandatory minimum sentences were part of the recent Amber Alert child protection act, and said, "Congress hasn't lost its appetite for mandatory minimums."

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