The following post on Justice Kennedy’s contributions to sentencing and corrections reform appeared earlier this week on Douglas Berman’s Sentencing Law and Policy blog.  While it does not involve collateral consequences directly, it seems fitting that CCRC recognize the significant contributions the Justice made to criminal law, notably in his statements off the bench about the injustice and inhumanity of excessive punishment.  One of the most vivid memories I have of the 2008 ABA Roundtable conference whose proceedings were published in the FSR symposium issue discussed below, is of Justice Kennedy’s enthusiastic description of the federal reentry court that had recently been established in Oregon, one of the first of its kind.  He made sure we all appreciated, as we discussed sentencing issues, that the consequences of a criminal case have adverse effects on individuals long after they have served their court-imposed sentence.  In the decade since that conference, the idea that collateral consequences are an integral part of punishment that must at some point end, is one that that has taken root in new laws and practices in almost every state.

The University of California Press Blog has this new posting titled “Justice Kennedy’s Contributions to Sentencing and Corrections Reform: An Appreciation.”  The piece is authored by Margaret Colgate Love, and here are extended excerpts:

In 2003, Justice Anthony Kennedy made a dramatic and surprising presentation to the American Bar Association’s Annual Meeting in San Francisco in which he raised fundamental questions about the fairness and efficacy of criminal punishment in the United States.  He recognized that arrests and highly publicized trials often command public attention, but that interest drops off sharply even among lawyers after a person has been convicted and sentenced.  He challenged the legal profession to consider what happens after “the door is locked against the prisoner,” remarking that “[e]ven those of us who have specific professional responsibilities for the criminal justice system can be neglectful when it comes to the subject of corrections.”

Justice Kennedy lamented the sheer number of people in prison, the severity of mandatory punishments, and their disproportionate impact on racial minorities. He urged greater judicial discretion in sentencing, and he also called for reinvigoration of the pardon power.  Perhaps most significantly, he spoke in compelling terms about the dehumanizing experience of prison and the importance of rehabilitation as a punishment goal.  He ended by asking the ABA to “help start a new public discussion” about the American way of punishment. Incoming ABA President Dennis Archer moved quickly to begin that discussion by establishing a commission to which Justice Kennedy subsequently agreed to lend his name….

In 2008, the ABA commission to which Justice Kennedy had originally lent his name convened a Roundtable in Washington to discuss mechanisms that permit reduction of a court-imposed sentence.  These mechanisms are sometimes collectively referred to as “second look” provisions, a term that originated in the American Law Institute’s project to revise the sentencing articles of the Model Penal Code.  It includes not only rules that authorize reduction of a specific prisoner’s term, such as executive clemency, but also provisions available on a more routine basis to all or most similarly situated prisoners, such as parole or good time.

Foreseeing the importance of a thoughtful and interactive discussion of sentence reduction mechanisms, the ABA invited an extraordinary group of judges, practitioners, and academics to give these mechanisms a serious look. The Roundtable format involved a brief presentation of papers followed by discussion by Roundtable participants moderated by Jeremy Travis, then president of John Jay College.  Justice Kennedy himself joined the Roundtable for part of its afternoon session.  The papers prepared for the occasion, as well as a record of the Roundtable proceedings and recommendations, were published in the spring of 2009 in a dedicated issue of the Federal Sentencing Reporter.

In appreciation for the role Justice Kennedy has played in inspiring public discussion of sentencing and corrections reform, FSR is proud to make available to the public the articles and proceedings from that 2009 symposium issue on the “Second Look Roundtable,” on the occasion of his retirement from the Supreme Court.

The articles and proceedings from the 2009 FSR issue on “second look” sentencing can be downloaded at this site.