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In a speech to the American Bar Association (ABA) Annual Meeting in San Francisco last summer, U.S. Supreme Court Justice Anthony M. Kennedy raised fundamental questions about the wisdom of sentencing and correctional practices at both the federal and state level, including the excessive use of minimum mandatory sentencing.
Forty years after Gideon v. Wainwright, the landmark Supreme Court case establishing the right of counsel for indigent defendants in criminal trials, the public occasionally glimpses the gap between Gideon's mandate and reality. There are still places in this country, for example, where indigent defendants sit in jail for months without seeing a lawyer.
Drug court programs have the potential to effectuate remarkable changes and long-lasting results. John P. Walters, the director of the Office of National Drug Control Policy, describes them as courts "where miracles happen, where people who suffer and cause other people to suffer, are brought together with the help they need."
Sentencing must reflect the values expressed in our sentencing standards: guided judicial discretion, tailored sentencing, proportionate sanctions, individualized punishment, consideration of aggravating and mitigating factors, and sentences that are "no more severe than necessary." By its very nature, mandatory minimum sentencing violates the core values expressed by these standards.
According to statistics from the California Department of Corrections, thousands of individuals are serving life sentences under California's three strikes law for nonviolent third strikes—in fact, 360 individuals in California are serving life sentences for shoplifting small amounts of merchandise. California is one of twenty-six states nationally with a three strikes law, but California's is the harshest in that the third strike need not be a serious or violent felony-any felony, even shoplifting, can be the basis for a life sentence.
Lawyers, policymakers, and advocates are admitting that the capital punishment system is indeed broken and that the best way to avoid the execution of the innocent is to impose a moratorium and remove the pressure created by impending executions.
For more than a century, all persons convicted of a felony in Alabama lost their voting rights for life, with only a relative handful able to gain pardons. But as a result of legislation signed into law in 2003 by Governor Bob Riley, most individuals who have completed their sentence are now eligible to apply to have their voting rights restored. By enacting this legislation, Alabama joined eight other states that since 1996 have adopted reforms of their disenfranchisement laws. The reforms have enfranchised an estimated half-million potential voters and in many respects represent one of the emerging frontiers of the modern-day civil rights movement.
Judge Hughes's order vacating a two-decade-old wrongful conviction in United States v. Wilson demonstrates the dangers of overzealous prosecution under the guise of fighting terrorism. In spite of having representation of counsel and complete access to the panoply of constitutional rights afforded criminal defendants, including judicial review, Wilson was otherwise unable to prevent the DOJ's use of deceitful tactics to gain a questionable (but at the time highly popular) conviction.
Universal criminal jurisdiction is the principle of international law that permits any nation to prosecute certain serious international crimes, regardless of where they are committed, by whom or against whom, or any other unique tie to the prosecuting nation. Universal criminal jurisdiction is an important tool in the worldwide struggle to end impunity for serious international crimes.
To honor David Cole is not only to recognize the work of an enormously talented and creative lawyer but also to honor the best traditions of American lawyering. At critical junctures in our history, when threats to our national security-real or perceived-have led the government to take repressive measures, some few but highly effective lawyers have stepped forward to protect dissent, individual rights, and the basic principles of equality and due process of law.