U.S. Supreme Court Justice Anthony Kennedy last week decried the strengthening of federal mandatory-minimum sentencing schemes when speaking at the American Bar Association annual convention in San Francisco. “I can accept neither the wisdom, the justice, nor the necessity of mandatory minimums,” Kennedy said. “In all too many cases, they are unjust.” Mandatory minimums — sentencing guidelines legislated by Congress — curtail a judge’s ability to use discretion when sentencing a criminal defendant and have been widely criticized by attorneys, federal judges, and drug reformers, who say the guidelines have filled our prisons with low-level, nonviolent drug offenders. (In 2002, the nation’s prison population topped 2 million, an all-time high.)

With last week’s comments, Kennedy (a Reagan appointee) joined Chief Justice William Rehnquist and Justice Stephen Breyer in publicly criticizing the stifling measures. The 1986 Anti-Drug Abuse Act established the basis for federal mandatory minimums, but recent legislation — passed earlier this year as an amendment to the wildly popular Amber Alert legislation — has upped the ante for mandatory minimums and has led one federal judge to tender his resignation.

As it turns out, the Illicit Drug Anti-Proliferation Act — formerly called the RAVE Act — wasn’t the only dastardly provision snuck into the feel-good measure to create a national system for locating missing children. The so-called Feeney Amendment, authored by freshman Rep. Tom Feeney, R-Fla., effectively eliminates the ability of federal judges to use any discretion in sentencing defendants — by authorizing U.S. Attorney General John Ashcroft to report to Congress any judges that continue to exercise judicial discretion. This congressionally mandated tattling prompted Manhattan federal District Judge John Martin Jr. — an appointee of the elder Bush — to tender his resignation in June. “The Justice Department is telling us that every defendant should be treated in the same way, that there should be no flexibility to deal with individuals,” Martin told The Wall Street Journal.

This article appears in August 22 • 2003.

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