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Vol. 79/No. 14      April 20, 2015

Supreme Court justices:
‘Prison system is broken’

Two Supreme Court justices have joined a growing number of public figures declaring the U.S. criminal justice system dysfunctional. In a congressional hearing March 23, Justices Anthony Kennedy and Stephen Breyer said they thought too many people are behind bars in the U.S. today and joined in opposing long-term solitary confinement and mandatory minimum sentences.

At a hearing of the House Appropriations Committee, ostensibly called to discuss the Supreme Court’s budget, Arkansas Republican Rep. Steve Womack asked the two justices for their views on prison and local jail overcrowding.

“In many respects I think it’s broken,” Kennedy said of the corrections system. Kennedy is often the swing vote in a divided Supreme Court and is well known for siding with law enforcement in criminal procedure cases.

The U.S. is home to 5 percent of the world’s population, but incarcerates 25 percent of the world’s prisoners. Currently 2.2 million people serve in the country’s prisons and jails, an increase of 500 percent in the last 40 years. An additional 4.8 million are on parole and probation. One-third of U.S. residents have a criminal record, often barring them from employment, housing and voting rights.

Kennedy said there are 187,000 people in jail in his home state of California.

Some 30,000 people in more than 40 states are held in solitary confinement, locked up 23 hours a day.

“This idea of total incarceration just isn’t working,” Kennedy said. “It’s not humane. Solitary confinement literally drives men mad.”

The explosion of the prison population is a product of the bipartisan “war on drugs” launched in the 1980s. In 1984, Democratic Sen. Edward Kennedy and Republican Sen. Strom Thurmond were the driving force behind the Sentencing Reform Act, which set mandatory minimum sentences for low-level drug offenses at five and 10 years.

“I’ve said many times that I think that’s a terrible idea,” Justice Breyer said of mandatory minimums.

At the federal level more than half of inmates are serving time for drug convictions, disproportionately African-Americans. At the state level the number has increased 11 times since 1980.

Clarence Aaron got three life sentences for introducing two dealers to each other for a fee of $1,500. When the other defendants pled guilty in a deal for a lesser sentence, fingering Aaron, he got life. Aaron has twice applied to have his sentence shortened through a presidential pardon. But he and countless others have had their petitions denied by the Barack Obama administration, which has used its federal clemency power less often than any other president in modern history.

Increasing numbers of political figures, judges and others connected to the so-called criminal justice system have spoken out on the need to cut the U.S. prison population. Many cite the explosion in costs to the government as a reason.

In August 2013, Attorney General Eric Holder ordered all federal prosecutors to stop filing charges that carry mandatory sentences against nonviolent drug offenders. Democratic Sen. Cory Booker of New Jersey and Republican Sen. Rand Paul of Kentucky have introduced bipartisan legislation aimed at reducing prison time and sealing juveniles’ criminal records. Other bipartisan initiatives are also pending in Congress.

Hillary Clinton, a likely Democratic presidential candidate, said in December that “we have allowed our criminal justice system to get out of balance.” Former Florida Gov. Jeb Bush, expected to seek the Republican nomination, is among some 70 leading conservatives who have signed the Right on Crime initiative, calling for reform.

In recent years 17 states have started programs aimed at bringing down the number of prisoners, and figures have begun to decline.  
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