August 25, 2003
Well it’s about time! I was beginning to believe that it did not exist.
After writing that it was at best a campaign slogan, at worst an oxymoron, I must
confess that compassionate conservatism does indeed exist.
Strangely, it was not President Bush who provided the example. Instead it was U.S. Supreme Court Justice Anthony Kennedy, a Reagan appointee, who several weeks ago at the American Bar Association convention called attention to the injustices surrounding the federal mandatory sentencing laws.
"Consider this case,” said Kennedy. “A young man with no previous serious offense is stopped on the George Washington Memorial Parkway near Washington, D.C., by U.S. Park Police. He is stopped for not wearing a seat belt. A search of the car follows and leads to the discovery of just over 5 grams of crack cocaine in the trunk. The young man is indicted in federal court. He faces a mandatory minimum sentence of five years. If he had taken an exit and left the federal road, his sentence likely would have been measured in terms of months, not years."
The argument for revisiting federal mandatory sentencing laws would hardly make news, if advocated by the ACLU, any of the inmate rights organizations, or Hollywood actor Martin Sheen well known for his left leaning causes. But it is news when a Republican appointed Supreme Court justice announces that federal mandatory-minimum sentences "should be revised downward" and calls for greater use of executive pardons. Could it be that Justice Kennedy is soft on crime or does he recognize the flaws within mandatory sentencing?
Intensifying the need to examine mandatory sentencing is our obsession with incarceration. Over the last decade the number of incarcerations in the United States increased by 840,000, enhancing the prison population to over 2 million.
Mandatory minimum sentences for drug offenses led to the jailing of large numbers of black youth. African Americans make up approximately 13 percent of the US population, but represent half of the state and federal prisoners. The minimum sentencing for 500 grams of cocaine and 5 grams of crack are identical. In 1998, African Americans comprised 85 percent of crack arrests, while only 31 percent of powder cocaine arrests.
I agree with Justice Kennedy we should send away those individuals for long sentences who have committed harsh, violent, and often times, repeat offenses; but the first time, gofer-level crimes?
The major flaw with mandatory sentencing is that it makes no distinction. Mandatory sentencing demands that everyone who commits a crime receive an equal opportunity to be transformed into a meaner, stronger, less caring version of the individual who originally entered prison. It suggests that our courts follow a mantra taken from Dante’s Inferno, “Leave aside all hope those who enter here.”
Justice Kennedy urged lawyers at the convention to push for executive pardons, "This young man has not served his full sentence, but he has served long enough. Give him what only you can give him. Give him another chance." If only the originator of compassionate conservatism heard Justice Kennedy’s benevolent plea.
Alas, the Bush Administration, led by Attorney General John Ashcroft, is pushing for harsher sentences, challenging any downward revisions in the sentencing guidelines. Mr. Ashcroft supported a measure signed by President Bush to allow appellate courts to lengthen sentences issued by federal judges. Even Chief Justice William Rehnquist, hardly a crusader for liberal causes, opined that the Justice Department’s actions will, “seriously impair the ability of courts to impose just and responsible sentences.”
Justice Kennedy’s statements to the American Bar Association belie the box that we as society have preordained. Questioning the federal mandatory sentences as unjust is the speech of so-called liberals, the stuff that gives fodder to the uncontrollable rages of a Rush Limbaugh, Ann Coulter or Sean Hannity. My conservative brothers and sisters, however, cannot dismiss Justice Kennedy, so easily.
History’s unique sense of humor appears in those rare moments when those least likely do the unlikely: The staunch anti-communist Richard Nixon going to China, the segregationist Lyndon Johnson signing historic Civil Rights legislation are but two examples. It seems Justice Kennedy has followed in this unique tradition. He has fired the first salvo designed to unearth the minimum sentencing laws from the hard barren unyielding terrain of liberal/conservative political debate. It is now up to the rest of us to continue what Justice Kennedy started, not based on uncompromising political beliefs, but what is best for our society.