Justice and mercy

Posted: Aug 18, 2003 12:00 AM

"Consider this case: 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."

Those words are lifted from the text of U.S. Supreme Court Justice Anthony Kennedy's speech to the recent American Bar Association convention in San Francisco. It's news when a Supreme Court justice announces that federal mandatory-minimum sentences "should be revised downward" and calls for greater use of the executive pardon power.

It's big news when the critic is a conservative Reagan appointee.

Mary Price, a lawyer for Families Against Mandatory Minimums, hopes this strong salvo from the right will help reform a draconian system. We discussed Clarence Aaron, who at age 23 was sentenced to life without parole for a low-level first-time nonviolent drug offense. Chrissy Taylor, then 19, received a 19-year sentence for buying legal drugs for her boyfriend's illegal drug operation. Kennedy spoke of such cases when he told the ABA, "Ladies and gentlemen, I submit to you that a 20-year-old does not know how long 10 or 15 years is."

Clarence Aaron, I submit, would welcome a 15-year sentence.

It makes no sense: Please, send away 20-year-olds for long, hard time for violent crimes and repeat offenses -- but not for first-time, gofer-level offenses.

I called the Criminal Justice Legal Foundation, which supports California's "three-strikes" law, for a contrary view. I didn't get it: Legal director Kent Scheidegger said Kennedy is "right, there are some things that should be re-examined," such as the disparity that mandates a five-year minimum sentence for 500 grams of cocaine, but also for 5 grams (100 times less) of crack.

In 1998, 85 percent of crack arrests involved African Americans, while 31 percent of powder cocaine arrests involved black defendants.

Scheidegger was open to some sentence reductions, with the savvy caveat: "That doesn't mean we should go back to the mistakes of the '60s when we got real soft on crime and the crime rates went through the roof." Amen.

The answer is not simply shorter sentences, but smarter, saner sentences that fit the crime.

Oddly, as the bench is voicing increasing anger toward federal sentences, U.S. Attorney General John Ashcroft is pushing for harsher terms. His department plans to challenge more "downward departures" from sentencing guidelines. He supported a measure signed by President Bush to allow appellate courts to lengthen sentences issued by federal judges. In response, Chief Justice William Rehnquist -- no leftie -- said the Feeney amendment will "seriously impair the ability of courts to impose just and responsible sentences," The Wall Street Journal reported.

What next? Life, plus?

Kennedy is the perfect critic because he has kept his politics out of his rulings. For example, he voted with the majority to uphold California's "three strikes" law. But then he warned the ABA: "It is a grave mistake to retain a policy just because a court finds it constitutional. Courts may conclude the legislature is permitted to choose long sentences, but that does not mean long sentences are wise and just."

"It is the duty of the American people," Kennedy said, "to begin the discussion at once." He urged lawyers to push for presidential and gubernatorial pardons.

In the case of Clarence Aaron, Kennedy's plea is most eloquent, and one I hope President Bush heard and takes to heart: "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."