Time was when a US Supreme Court justice would rarely speak about law outside the courtroom. The feeling was that it would be imprudent for a member of the court to espouse on the law and reveal his inner leanings. But Justices Scalia and Thomas and more recently Justice Ginsburg have changed that by regularly giving speeches about the law. So I guess Justice Anthony Kennedy cannot be blamed for his recent address to Pepperdine Law School in California on the US Prison system, which I read about yesterday in the NY Times Editorial section. Here’s a link to the piece
What is troubling is that he appeared a bit hypocritical in his statements that found the prison system flawed and California’s three-strikes law overly harsh. Now don’t get me wrong, I agree with his opinion 100%. What I don’t understand is why he voted that the law was constitutional even when faced with extreme examples of its implications.
Understand that Justice Kennedy is probably the second most important person in the country behind the president. That is because he has been the swing vote (the 5th vote in a 5-4 decision) too many times to count. He routinely casts the tie breaking vote between the court s four more conservative judges (Scalia, Thomas, Alito and Roberts) and its four more liberal judges (Stevens, Ginsburg, Breyer and Sotomayor -and before her, Souter). So this unelected individual is a strong shaper of US public policy and jurisprudence and no one to take lightly.
So as someone who has seen the miserable conditions of US prisons up close and personal, you would think I would rejoice that such an important figure would call attention that US sentences are 8 times longer than any other industrialized nation while we also send a higher percentage of our population to prison than any other as well. California, in particular, has some of the worst prison overcrowding in the nation. Justice Kennedy correctly blamed that on the three strikes law, which sentences someone convicted of their third felony to 25 years to life regardless of the nature of the third felony. Kennedy even added that it was “sick” (his word) that the law was sponsored by the correctional officers union.
Where was this sentiment when Gary Ewing’s case came before the court? Ewing v. California was the case that declared the three strikes law constitutional. Ewing had been convicted over a period of years to several non-violent felonies, mostly theft of property, all to support a drug habit. His last felony was the shoplifting of three golf clubs valued $400 in total from a sporting goods store. Under the law, he was sentenced to 25 years to life for this crime. His lawyers took the appeal all the way to the Supremes arguing that such a disproportionate sentence is cruel and unusual and therefore violated the 8th Amendment to the Constitution. They also argued that regardless of his criminal record, 25 years to life for a $400 crime is unconstitutional. In a 5-4 vote, with Kennedy in the majority, the law and the sentence were upheld. Scalia and Thomas even reasoned that the founding fathers did not want to cover disproportionate sentences under the 8th Amendment, so that there would be no constitutional relief for this wrong. (I could note that this same 5-4 court has regularly found that large punitive damage awards against corporations are unconstitutional because they violate the 14th Amendment Due Process Clause, but why would I expect this court to want to give human beings the same constitutional protection?).
When Justice Kennedy had the clear opportunity to declare California’ troubling law unconstitutional, he took a pass and allowed an American Jean Valjean (from Les Miserables, look up the analogy) to be sentenced to life for a minor theft. Why he didn’t speak out at that time is anybody’s guess. Let’s hope this speech evidences a change of heart. The problem is that this court take so few cases that it is unlikely that it will ever revisit this issue in the foreseeable future. Pity we didn’t hear from this Justice Kennedy when we needed to. I’m sure Gary Ewing is shaking his head and wondering where he was when he needed him.