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Criminal Justice Magazine
Winter 2005
Volume 19 Number 4

THE AMERICAN WAY OF PUNISHMENT:
ABA Justice Kennedy Commission Recommends Sweeping Changes

By Margaret Colgate Love

Margaret Colgate Love, practices law in Washington, D.C., specializing in postconviction remedies, including executive clemency, and sentencing and corrections policy. She was one of two reporters for the ABA Justice Kennedy Commission. She also chairs the Criminal Justice Standards Task Force on the Legal Status of Prisoners.

This article is about a truly remarkable event in 2003 that seemed to many to be a harbinger of spring after the deep winter of the “war on crime” decades of the 1980s and 1990s. The event, a speech by Supreme Court Justice Anthony Kennedy at the American Bar Association’s Annual Meeting, gave mainstream legitimacy to criticisms of the criminal justice system that had for years been voiced almost exclusively by the defense bar and those advocating for prisoners’ rights. It is also about how the ABA and its leadership responded to Justice Kennedy’s speech by launching a top-to-bottom review of criminal sentencing and corrections in the United States. Finally, it is about the broad agenda for reform that resulted from this review, which was adopted by the ABA House of Delegates exactly one year to the day after Justice Kennedy’s legendary speech.


Justice Kennedy’s challenge
The speech that now seems a watershed took everyone by surprise. A few days before the 2003 Annual Meeting, word got out that Supreme Court Justice Anthony Kennedy would address the ABA House of Delegates at its opening session on the subject of criminal sentencing and prisons. This was pretty interesting news. Indeed, several people who ordinarily would not have come to an Annual Meeting made last-minute plane reservations for San Francisco. Still, no one expected the speech to be so strong and sweeping in its condemnation of American punishment practices.
On the morning of August 9, just hours before Justice Kennedy was to speak, I got a call from a very excited Kevin Driscoll of the ABA Governmental Affairs Office, who had obtained a preview copy of the Justice’s speech from his chambers in Washington. “You have to see this,” he said. At that very moment, perhaps coincidentally, the Criminal Justice Section Council was holding a “town meeting” with federal trial judges John S. Martin and Norma Shapiro to discuss the recently enacted Feeney Amendment and other legislative restrictions on judicial discretion in sentencing. “It even mentions pardons,” Kevin teased, knowing what this would mean to me as a long-time advocate of pardon reforms.
Later in the afternoon, speaking without notes in the grand setting of the San Francisco Opera House, Justice Kennedy delivered his now-famous verdict on the American criminal justice system: “Our resources are misspent, our punishments too severe, our sentences too long.” In his characteristically low-key style, he challenged every lawyer there, and implicitly the entire legal profession, to take responsibility for a regime of punishments that he plainly believed had become morally indefensible.
Noting the legal profession’s “obsessive focus” on the process for determining guilt or innocence, Justice Kennedy asked us to consider what happens “when the door is locked against the prisoner”:

We have a greater responsibility. As a profession, and as a people, we should know what happens after the prisoner is taken away. To be sure the prisoner has violated the social contract; to be sure he must be punished to vindicate the law; to acknowledge the suffering of the victim, and to deter future crimes. Still, the prisoner is a person; still, he or she is part of the family of humankind.

Justice Kennedy remarked on the sheer number of people incarcerated in this country, the disproportionate impact of incarceration on minority communities, and the dehumanizing impact of the prison experience. He asked the ABA “to help start a new public discussion about the prison system.” He asked us to remember that the “two million inmates in the United States are human beings whose minds and spirits we must try to reach.”
This was the same Justice Kennedy who, in the Term just completed, had provided the crucial fifth vote in the Court’s rejection of a constitutional attack on California’s three strikes law, Lockyer v. Andrade, 123 S. Ct. 1166 (2003); Ewing v. California, 123 S. Ct. 1179 (2003), and had written the opinion upholding the constitutionality of Michigan’s restrictions on noncontact prison visits. (Overton v. Bazetta, 539 U.S. 126 (2003).) He seemed to be saying that American sentencing and corrections policies and practices have a moral dimension that cannot be reached through legal process, and he called upon “the energies and diverse talents of the entire Bar to address this matter.”


The ABA accepts the challenge
ABA President-elect Dennis Archer seized the moment, and two days later announced that he would make Justice Kennedy’s challenge the centerpiece of his presidential year. The commission he appointed was extraordinary in that it was composed not of experts in the field of sentencing and corrections, but of representatives of various sections of the ABA, some of whom had never had a criminal practice, but who brought to their work the discerning eye that good lawyers bring to new problems. President Archer evidently intended to signal his agreement with Justice Kennedy that prison policies and practices are not solely the concern of criminal practitioners, but of the entire legal profession.

The commission was unusual in another sense: it bore the name of a sitting Supreme Court Justice. The unprecedented willingness of the otherwise reserved Justice to lend his name to such an enterprise signaled the depth of his concern. It made all of us who were privileged to be part of it want to make the most of the opportunity he had given us.
Over the course of the next eight months, under the energetic leadership of its chair, Stephen Saltzburg, the commission held a series of nationwide hearings to learn more about the state of criminal sentencing and corrections policy. In a marathon, three-day hearing in Washington, D.C., in November 2003, the commission heard testimony from judges, academics, researchers, and former prisoners on many aspects of the criminal justice system, from prosecutorial discretion and mandatory minimum sentencing, to prison medical care and pardon.
In February 2004, in San Antonio, virtually the entire top level of the Texas Department of Criminal Justice explained why the state had reversed course after a decade of aggressive imprisonment, and was now attempting to develop alternatives to prison for minor offenders. In Sacramento in April the commission heard from Governor Arnold Schwartzenegger’s newly appointed secretary of corrections, who spoke about the change-resistant “culture” of corrections, of which he himself had long been a part. A few weeks later, in Baltimore, the state secretary of criminal justice spoke to us about Governor Robert Ehrlich’s commitment to prison reentry programming, and described his proactive approach to his pardoning responsibilities.
The U.S. Justice Department declined to participate in the Kennedy Commission’s work, even canceling at the last minute the expected appearance of a statistical expert at the commission’s November hearing. This was disappointing because so many of the issues Justice Kennedy raised seemed particularly relevant to the federal context. The Justice Department ultimately responded to the commission on the floor of the House of Delegates in August 2004 with an unqualified statement in support of mandatory minimum sentences and an aggressive policy of imprisonment as the surest guarantor of public safety. In light of what the commission had learned from the experience of state authorities, this response seemed simplistic (even from a law enforcement perspective) and uninformed by considerations of cost in either human or budgetary terms.


The commission’s recommendations
The commission delivered its report to the ABA House of Delegates exactly a year to the day from Justice Kennedy’s original tasking. It explained that its goal had been “to begin the process of getting the organized bar focused on corrections and punishment, to make initial recommendations for improving public knowledge of and confidence in the sentencing and correctional process, and to seek to make punishment more effective in preventing crime and enabling offenders to reenter society once they have paid the price for criminal activity.”
The specific policy resolutions presented by the commission paint with a broad brush and address issues across the spectrum of the criminal justice system, from racial profiling and prosecutorial discretion to prisoner reentry and pardon. Taken as a whole, they call into question the most fundamental tenet of the war on crime: that locking people up is the linchpin of an effective crime control strategy.
A first group of resolutions affirms the twin principles of sentencing that 1) lengthy periods of incarceration should be reserved for offenders who pose the greatest danger to the community and who commit the most serious offenses, and 2) judges should be permitted to take into account, consistent with the Supreme Court’s decision in Blakely v. Washington, the unique characteristics of offenses and offenders within a guidelines system. The resolutions, among other things, call for the repeal of mandatory minimum sentences; a requirement that judges give reasons for increasing or reducing a sentence, subject to appellate review; increased treatment and diversion options; and graduated sanctions for parole and probation violations. They also call for specific reforms in the federal sentencing guidelines system, including repeal of the so-called “25 percent rule,” a statutory requirement that limits the sentencing range at each guideline level, thereby guaranteeing rigidity and complexity in the guidelines structure. The commission also urged repeal of limitations on the number of judges who can be appointed to the U.S. Sentencing Commission, and reinstatement of a more deferential standard of appellate review of sentences.
A second group of resolutions proposes a comprehensive strategy for dealing with racial and ethnic disparity at every stage of the criminal process. One recommendation is that each jurisdiction establish a criminal justice racial and ethnic task force to study and make recommendations concerning such disparities in the various stages of the criminal justice process. Another is that law enforcement agencies develop and implement policies to combat racial and ethnic profiling, and that legislatures evaluate the disparate racial and ethnic impact of existing and proposed legislation.
A third group of resolutions urges increased use of mechanisms for shortening prison sentences in extraordinary circumstances, and for restoring rights after completion of sentence, including the pardon power. One recommendation urges the U.S. Department of Justice to make expanded use of the procedure for sentence reduction for “extraordinary and compelling reasons” under 18 U.S.C.
§ 3582(c)(1)(A)(i), and the U.S. Sentencing Commission to promulgate guidance for courts relating to motions under this statute that will incorporate a broad range of medical and nonmedical circumstances. Another urges expanded use of executive clemency and other mechanisms by which convicted persons may request restoration of legal rights and relief from collateral disabilities.
A fourth group of resolutions speaks to prison conditions and prisoner reentry. It stresses the importance of monitoring prison conditions, of ensuring that correctional facilities are safe and secure, and of providing a process whereby allegations of prisoner mistreatment may be promptly investigated and dealt with appropriately. It also addresses the need to prepare prisoners for reentry, to provide supportive programs when prisoners come home, and to identify and remove unwarranted legal barriers to reentry.
Several of the resolutions are directed specifically at bar associations and law school clinics, defining a role for lawyers in assisting prisoners to reenter the community and regain lost rights and status.
The reports accompanying these resolutions provide historical background and describe some of the testimony on which the commission based its policy recommendations (available at http://www.abanet.org/crimjust/kennedy/
JusticeKennedyCommissionReportsFinal.pdf).
The reports document a growing official skepticism about the efficacy of imprisonment as a crime control strategy in light of mushrooming prison populations and sky-rocketing prison budgets, and a developing consensus among state lawmakers and corrections officials that mandatory minimum sentences are not necessary to provide appropriately stiff prison sentences for serious and violent offenders. Increasingly in the states, considerations of efficiency and humanity combine to support less reliance on prison and more reliance on alternative rehabilitative strategies such as drug courts, intensive probation, and prison education and job training programs. Only the federal government, unconstrained by budgetary pressures, seems unwilling to question the old orthodoxy.
One notable passage in the report accompanying the first set of resolutions examines the argument that increased incarceration during the 1980s and 1990s was responsible for a reduction in crime, the very argument advanced by the Justice Department’s representative before the House of Delegates in defense of mandatory minimum sentences. Although studies have shown that increased incarceration initially decreases crime, after a certain point the marginal impact on the crime rate of putting more people in prison becomes low to nonexistent. Moreover, research findings broken down by jurisdiction show that some states that experienced the greatest reduction in crime also had the lowest growth rate in imprisonment. In sum, the correlation between high rates of incarceration and lower crime rates is at best uncertain.


Blakely v. Washington
The day after the commission released its report in June 2004, the Supreme Court handed down its landmark decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). Because of the centrality of Blakely’s holding to many of its recommendations, the commission decided to include in its report to the ABA House of Delegates an additional discussion and analysis of some of the approaches suggested for revising guidelines systems post-Blakely. The commission found almost all of the “fixes” that had been suggested in the weeks immediately following Blakely deficient in some important respect—because they were either too rigid or too inefficient, or because they imposed too little restraint on judicial discretion.
In particular, the commission criticized a proposal whereby the guidelines maximum would exactly coincide with the statutory maximum, noting that such a system would result in “the very sort of unbridled discretion that guidelines sentencing was intended to eliminate.” The commission also found problematic alternatives relying on an enhanced role for the jury in deciding facts that would justify an increase in an otherwise binding guidelines sentence. The approach that seemed most promising to the commission was a presumptive sentencing scheme that specifically permitted a court to increase or decrease a sentence within a specified range, subject to appellate review. The report cautioned that any sentencing system that relies upon the government’s ability to force defendants to waive their constitutional rights “must be regarded as extremely problematic in a just society.”


What comes next
In retrospect, no one could have imagined what a galvanizing effect Justice Kennedy’s speech would have, perhaps least of all Justice Kennedy himself. It seems that the public was finally ready to hear that incarceration as a crime control strategy may do more harm than good. Because its release fortuitously coincided with the Supreme Court’s historic decision in Blakely, the commission’s report figured prominently in discussions about sentencing reform that took place in the press, in state legislatures, and in Congress throughout the summer of 2004, just as Justice Kennedy had hoped. Even critics of the commission’s broad-brush approach had to admit that its enthusiastic reception “proves the power of good timing.”
Although the commission’s work is now concluded, its report mapped out a continuing role for the American Bar Association in ensuring that the “national discussion about the prison system” sought by Justice Kennedy will continue. In November 2004 the ABA Board of Governors authorized the establishment of a new Commission on Sentencing, Corrections, and Reentry to take responsibility for leading the next stage of the ABA’s work on sentencing and corrections reform. This commission will promote and expand upon the policy work of the Justice Kennedy Commission at a national level, facilitate law reform efforts in the states through selected field demonstration projects, and encourage individual lawyers to take a more active interest in the prisoners who will inevitably return to their communities.
Surely, in time, the spirit of reform that is evidently abroad in the land will reach the federal government. For now, it seems hopeful that so many states have reached beyond the “tough on crime” vocabulary that framed the conversation during the 1980s and 1990s, and are experimenting with innovative approaches to crime control that recognize both the complexity of the causes of crime, and the limited usefulness of incarceration in discouraging it. Like Justice Kennedy, many states have evidently come to understand that the goal of the criminal justice system must be to reunite offenders with the community that has been injured, not to create a class of social outcasts whose reduced legal status forever sets them apart from the family of humankind.

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