When decisions in the Supreme Court are very close, Justice Anthony Kennedy’s is usually the swing vote. He is neither automatically liberal nor conservative, but he does consider himself a constitutionalist.
In October, during a conversation with a group of students at the University of California Washington Center moderated by reporter Jess Bravin of The Wall Street Journal, what Justice Kennedy said should have been widely reported across this republic. However, I’ve seen it covered only by Robyn E. Blumner of the Tampa Bay Times:
“Kennedy,” she wrote, “told the students that the country is on a mistaken and self-destructive path. The United States has an incarceration rate that is five to eight times that of Europe -- making us the top jailer in the world, with staggering consequences” (”The price of punishment,” Blumner, Tampa Bay Times, Oct. 24).
Did you know that? Let’s see if Kennedy makes you care about it.
An example, Blumner reported, is California, which “spends an average $47,000 annually to keep someone in prison and about $8,500 to educate a public school student.”
Blumner continued: “Kennedy’s views are informed by decades of watching the federal courts overrun by drug cases. At an astronomical cost, nearly half the 200,000 federal inmates are there for drug-related crimes — largely low-level people with addictions, not kingpins. ...
“Harsh sentences are exacerbated by the lack of quality of legal representation for poor defendants. Kennedy thinks, in too many cases, counsel might not be adequate to reach a just result, with the potential of convicting the innocent. And politicians are too afraid to show mercy through clemency and executive pardons, closing off the system’s vital escape valve, he said.”
I hope you will keep this in mind whenever you see a reference to the Eighth Amendment in our Bill of Rights guaranteeing that “cruel and unusual punishments” not be “inflicted.”