Is the U.S. criminal justice system broken?

The apparent increase in crimes, especially violent crimes, that took place in the last few decades of the 20th Century led governments at both the state and federal levels to adopt “get-tough” strategies when it comes to sentencing measures. These have included things like “three-strike” laws (such as in Tennessee) and mandatory minimum prison sentences which are meant to take convicted criminals off the streets, sometimes permanently.

The efficacy of these strategies has been a subject of debate, and recently in testimony before Congress two U.S. Supreme Court Justices have weighed in on the subject.

The Justices, Justice Anthony Kennedy and Justice Stephen Breyer, agreed that one of the consequences of incarcerating more and more people is prison overcrowding, a problem which has reached a degree of severity that it raises Constitutional questions of cruel and unusual punishment. Justice Kennedy suggested that instead of putting more people behind bars, a better approach would be to provide for more supervised release programs or for more probation; he also came out against the use of solitary confinement. Justice Breyer opined against mandatory minimum sentences.

Testimony before Congress does not carry the weight of a U.S. Supreme Court case decision, but the fact that two of the Justices, including one, Justice Kennedy, who is known to generally side with law enforcement on matters involving criminal procedure, are willing not only to negatively assess current incarceration methods and to recommend consideration of alternative approaches, some of which are used in other countries, suggests that there may be momentum gathering behind the side of the incarceration debate that favors less automatic and less severe forms of punishment compared to what the norm is presently.

State legislatures, law enforcement personnel and criminal defense attorneys alike will all likely be looking to see whether the inclinations that these two Justices have expressed will translate themselves into Supreme Court decisions in the near future.

Source: The Wall Street Journal, “Two Supreme Court Justices Say Criminal-Justice System Isn’t Working,” Jess Bravin, March 24, 2015