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Justices Breyer, Kennedy, Speak out on Criminal Justice Reform

— April 7, 2015

Supreme Court Justices Stephen Breyer and Anthony Kennedy spoke candidly about reforms needed in the criminal justice system before a House Financial Services and General Government Subcommittee meeting in Washington D.C. on March 23rd. In a rare off-topic discussion, Justice Kennedy spoke bluntly about the criminal justice system to the committee stating that, “In many respects, I think it’s broken.” Both Justices urged Congress to make reform a top priority during the legislative session. Breyer called some mandatory minimum sentencing requirements “a terrible idea,” with improvements needing to be prioritized, and Kennedy questioned whether or not prison overcrowding violates the 8th Amendment regarding cruel and unusual punishment.

The urging comes at a time in Congress where there is some, but not enough, will to reform a system that many beyond the Supreme Court believe to be much more focused on punishment than rehabilitation. Despite bipartisan support, three separate bills regarding sentencing reform were stalled due to committee politics in the past year. Justice Kennedy went on to chastise what he calls “total incarceration,” using prison sentences as a catch-all punishment and not allowing alternative options that might lower the odds of recidivism. He cited research providing evidence that alternative sentencing tends to produce better results while remaining more cost-effective as well. Raising concerns about the preservation of human dignity, Kennedy also lambasted the deteriorating and brutal conditions within many prisons. He was especially critical of the concept of solitary confinement saying, “Solitary confinement literally drives men mad.”

While Justice Breyer has long been thought of as one of the more liberal members of the Court, Kennedy’s remarks are especially significant, given that he has been the swing vote on many issues under the current court makeup. This is also true in the area of criminal justice. Generally siding with law enforcement as well as upholding some controversially-long prison sentences, Kennedy has deferred to lawmakers in regards to sentencing guidelines. This is a viewpoint with which he differs with Breyer in some cases, drawing some criticism that Kennedy is abdicating part of his judicial responsibility. Kennedy’s focus on prison reform and the 8th Amendment issues with overcrowding, however, demonstrate a potentially alternative method of addressing the issue, and/or it reflects a change of heart from his previous opinions. One thing has become increasingly clear; there is some degree of restlessness within the Supreme Court about Congress’s prioritization of the issue. The question is whether or not these rarely-spoken private opinions will be heeded, or if it will be enough motivation to bring new legislation to vote.


New York Times – Editorial Board

Wall Street Journal – Jess Bravin

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