“The idea of total incarceration just isn’t working” – Supreme Court Justice Anthony Kennedy
“A Terrible Idea” – Supreme Court Justice Stephen Breyer, when asked about mandatory minimums.
On March 23, United States Supreme Court Justices Anthony Kennedy and Stephen Breyer marched across the street from the Supreme Court Building to Capitol Hill, ostensibly to discuss the Court’s annual budget request with the relevant House sub-committee. As the Wall Street Journal reports, the topic of conversation soon expanded to the general efficacy of the nation’s criminal justice regime–and the judgment of the two Justices was more like an indictment.
Justice Kennedy advocated assigning probation and other supervised release programs for offenders in place of incarceration, citing cost-effectiveness and research suggesting a low recidivism rate for those on release. He also referenced a “a human factor” involved in decisions regarding putting a person behind bars. In particular, Justice Kennedy stated that he was troubled by the use of solitary confinement. Justice Breyer, seconding many of his colleague’s concerns, called on Congress to make improving the system one of its top priorities.
As Justice Kennedy is one of the Court’s leading conservatives, it will be interesting to see if any of his stated concerns make it into future opinions of the Court. For the time being, let’s hope that members of Congress were listening.