Irons v. Carey Oral Argument

Justice Kennedy Answers Sentencing Questions

This interesting article recounts Justice Kennedy's answers to some sentencing-related questions.

He said he and his judicial colleagues are working with Congress to rehire some of the 1,300 probation and sentencing officers who were laid off last year due to budget cuts.

He said these officers are needed in the wake of the Supreme Court's ruling in January that struck down the use of mandatory federal sentencing guidelines. "The only thing worse than sentencing under the guidelines is sentencing without the guidelines," he said, calling sentencing "the hardest thing judges do."

In a comment that won't endear him to DeLay and other conservatives, Kennedy suggested that criminal sentences in the United States are too long, noting that U.S. sentences are eight times longer than those in Western Europe. "We have to rethink the sentencing system," he said. "We have 180,000 prisoners in the California state system alone."

Asked about a bill just passed by the House to impose tough mandatory minimum sentences for gang-related offenses, Kennedy said he "strongly opposes" mandatory minimums, saying they lead to overly harsh sentences.

Justice Kennedy's sentencing views have always been contemplative and circumspect, so his comments don't surprise me.  And more broadly, I don't view his answers as an indication that he's turning left.  Still, if DeLay and other wing nuts keep treating him as an unwelcomed guest, I won't be surprised to see him further shift left.

UPDATE: Orin Kerr, who clerked for Justice Kennedy, offers commentary here.