Justice Anthony Kennedy won an outburst of applause at a recent meeting of the American Bar Association in San Francisco when he criticized mandatory sentencing laws.
"Every day in prison is much longer than any day you've ever spent," Justice Kennedy said. "A country which is secure in its institutions and confident in its laws should not be ashamed of the concept of mercy."
Two centuries ago, Adam Smith had something to say about mercy as well: "Mercy to the guilty is cruelty to the innocent."
Innocent victims of crime seem to disappear from the lofty vision and ringing rhetoric of those who worry that the punishment of criminals is "too severe," as Justice Kennedy put it. If a day in prison can be pretty long, so can every day living in a high-crime neighborhood, where you have to wonder what is going to happen to your son or daughter on the way to or from school.
The nights can get pretty long too, when you are afraid to go out on the streets and have to worry about how safe you are, even inside your apartment behind doors with multiple locks. Locks can't stop stray bullets from warring drug gangs.
Justice Kennedy may feel "secure" where he lives and works. But the "equal protection of the laws" under the 14th Amendment applies also to those who live in less elite circumstances.
Even in high-crime neighborhoods, most people are not criminals. But the minority of thugs and hoodlums in their midst can make life a living hell for the majority of decent people.
Even those people in such neighborhoods who do not become direct victims of crime nevertheless suffer economically. Prices are higher in stores that have to have costly security devices and pay higher insurance rates because of crime and vandalism.
There is also a large hidden price in the absence of as many stores, banks, and other institutions in high-crime neighborhoods.
Low-income people often have to go outside their neighborhoods for shopping. For those who don't have cars, that means paying more bus fares or taxi fares out of their low incomes.
How about a little "mercy" for these people? The sentences of innocent people in high-crime neighborhoods can last a lifetime.
You wouldn't have to lock up 5 percent of the people in high-crime neighborhoods to bring the crime rate down dramatically. Some years ago, when little East Palo Alto, California, had the highest murder rate in the nation, a law enforcement crackdown drove that murder rate way down in just one year by taking a relative handful of career criminals off the streets.
Justice Kennedy pointed out that a higher percentage of our population is imprisoned than the percentage of the population in some other countries. But it has been precisely since we started locking up more criminals in the 1980s that our crime rates finally began to turn downward.
"Our sentences are too long," Justice Kennedy also told the American Bar Association. Compared to what? Compared to sentences in Europe? Justice Kennedy has apparently become a citizen of the world, even citing foreign legal precedents in a recent Supreme Court opinion.
Our laws were not made to deal with conditions in Europe. Our judges are sworn to uphold the Constitution of the United States -- not the European Union. If Justice Kennedy finds all this too parochial and confining, he is free to resign from the Supreme Court of the United States and go join the International Court of Justice at The Hague.
Justice Anthony Kennedy is a classic example of someone appointed to the Supreme Court by a conservative Republican, who arrives bearing the "conservative" label, but who then goes native in Washington -- or, as the liberals say, "grows."
Backbone is infinitely more important than ideological labels because all the influences and incentives are to move leftward. That is how you get the applause of the American Bar Association, good ink in the liberal press, acclaim in the elite law schools and invitations to tony Georgetown parties.
We can only hope that the Bush administration does not succumb to the Senate Democrats' filibuster threat by appointing more Anthony Kennedys to the federal courts. These appointments last a lifetime -- which is too long a sentence for crime victims.