Justice Anthony Kennedy spoke out against excessive prison sentences this month in California, criticizing the state’s deeply misguided three-strikes law. It was a welcome message, delivered with unusual force. Much of the blame for the law, however, lies with the Supreme Court, which upheld it in a decision on which Justice Kennedy cast the deciding vote.
The overall tone of Justice Kennedy’s address to the Pepperdine University School of Law was “courtly and humorous,” according to The Los Angeles Times. He turned more serious, however, on the subject of incarceration. Sentences in the United States are eight times longer than those handed out in Europe, Justice Kennedy said. California has 185,000 people in prison at a cost of $32,500 each per year, he said. He urged voters and elected officials to compare taxpayer spending on prisons with spending on elementary education.
Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one. The law’s sponsor, he said, is the correctional officers’ union, “and that is sick.”
The criticism was on the mark. The state’s prison population has soared as a result of harsh sentencing laws and parole rules. California has been ordered by the courts to bring down the population of its prison system, which is badly overcrowded and unable to provide inmates with adequate medical care.
Under the three-strikes law, a man named Gary Ewing was sentenced to 25 years to life for shoplifting three golf clubs from a golf pro shop.
Mr. Ewing challenged his sentence before the Supreme Court as a violation of the Eighth Amendment prohibition on cruel and unusual punishment. By a 5-to-4 vote, with Justice Kennedy in the majority, the court rejected the challenge. The dissenters were right that Mr. Ewing’s sentence was so disproportionate to his crime that it should have been declared unconstitutional.
It’s not that the court is insensitive to excessive punishments. It has repeatedly thrown them out — when they are against corporations. In 2003, the year the court rejected Mr. Ewing’s case, it overturned a $145 million punitive damage award against the State Farm Mutual Automobile Insurance Company as so excessive that it violated the 14th Amendment due process clause.
Justice Kennedy is right that elected officials and voters should pay more attention to overincarceration. But courts also need to do their part by enforcing constitutional prohibitions on excessive punishment in cases involving people, as well as corporations.