By Nat Hentoff
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."
I suspect that our Founders did not conceive, as this unprecedented self-governing nation was being born, that eventually the cost of punishment in our prisons would ever be usually cruel.
Thankfully, this reporter and sometime editorial writer for the Tampa Bay Times added her own chorus to Justice Kennedy's exposure of our criminal justice system.
I've known Robyn Blumner for years, starting when she was the executive director of the American Civil Liberties Union chapter in Utah in the late '80s and then at the same challenging position in Florida in the mid-'90s. Recently, while still writing for the Tampa Bay Times (formerly the St. Petersburg Times), her column lost syndication because she was told it was "too liberal."
They got it wrong. She's not a liberal. She's a libertarian, as am I.
As such, in reporting on Justice Kennedy's conversations with University of California students, Blumner went beyond the cost of punishment in federal prisons, citing the "more than 2 million people being locked up in America's prisons and jails, a figure that has quadrupled since 1980.
"Beyond the $80 billion a year the system costs taxpayers, add the lost human capital and the destruction of families and communities when so many young men and women are put away ...
"The harshness element, with so many years behind bars for minor drug offenses, means people won't have a second chance at a productive life. Children lose their parents during their formative years, creating a cycle of social ills."
Then Blumner characteristically starts probing the justice himself: "You have to wonder if Kennedy would still vote alongside his conservative colleagues to uphold California's 'three-strikes' law as he did in 2003 in a pair of cases, one of which resulted in a man receiving two consecutive terms of 25 years to life for stealing $150 worth of videotapes. Those cases were narrowly decided by a 5-4 vote."
So why does this destructive cost of punishment go on in these United States, born of the Declaration of Independence and the Constitution with its Bill of Rights?
Blumner raises a provocative, troubling quotation from Anthony Kennedy on how far we are from where this nation came into reverberating being: "The nature of injustice is you can't see it in your own times."
She then confronts Justice Kennedy:
"The nature of reforming society for the better is that people who see injustice for what it is, stand for what is right.
"Kennedy has a powerful place from which to stand. We'll see if he does."
I, too, will be watching this swing voter very carefully. There have indeed been times when he doesn't swing.
Startlingly, Blumner provides Kennedy with a model for seeing injustice for what it is. She praises, of all people, Attorney General Eric Holder!
That's not a typo. She reports that Holder "recently told federal prosecutors to stop subjecting low-level, nonviolent drug offenders to harsh mandatory minimum sentences, calling this current system 'broken.'"
Will Justice Kennedy see to it that Attorney General Holder sticks to his demand?
Even if Kennedy can't always get a majority of his colleagues on the high court to vote with him, he can keep a public eye on Eric Holder and ask Barack Obama, the former lecturer in constitutional law, to join him publicly in pursuit of real-life justice.
If all we get is silence, then you must speak up. Eric Holder, Congress and even Barack Obama work for you. Remember?