Members of the Supreme Court rarely speak out publicly about their views on the sorts of issues that are likely to come before them. So it was notable when Justices Kennedy and Breyer sat before the House appropriations committee recently and talked about the plight of the American criminal justice system.

Basically, they said that they believed it to be broken. It was a good reminder of the urgency of the problem as well as highlighting Congress’s inability to pass any meaningful reform over the last several years.

The main topic of the hearing was to discuss the Supreme Court’s budget, but a question on prison overcrowding gave Justice Kennedy the platform, which he used to chastise the legal profession for being only interested in guilt or innocence, and not corrections.

Kennedy opined that the idea of total incarceration is not working and came down harshly on the practice of solitary confinement, which he said “literally drives men mad.” In the past, the Court has upheld challenges to the prison system as well as incredibly long sentences for nonviolent crimes by saying that those areas are the job of lawmakers, not the courts.

However, an obvious way to end the practice of solitary confinement would be for the Court to ban it under the 8th Amendment, which prohibits “cruel and unusual punishment.” In more recent cases, Justice Kennedy has evoked the Amendment, and his comments may give hints at what is to come. The justices are right to lay these issues at Congress’s door. The Court can only accomplish so much on their own. In some states, such as New York, prison and sentence reform has been happening for several years, with overwhelmingly positive results. Now it is Congress’s turn to take a look at some of the unjustly harsh and ineffective sentencing laws that is passed in the first place.

Source: New York Times

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