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WASHINGTON — Supreme Court Justice Anthony Kennedy told a congressional subcommittee Wednesday that mandatory minimum sentences can produce “harsh and unjust” prison terms. “In many cases, our sentences are too long,” Kennedy said in a rare statement on policy that came as Congress is considering legislation that would restrict the discretion of federal judges to hand out sentences lower than those required by sentencing guidelines. Kennedy spoke at the court’s annual budget hearing, at which a House Appropriations subcommittee considered the court’s request for a $56.6 million appropriation for the next fiscal year. Kennedy and Justice Clarence Thomas answered a wide range of questions about the high court’s policies and practices, including its increased hiring of minority law clerks. The hearing before the Subcommittee on the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies featured some discussion between lawmakers and the justices about federal drug cases and the crowding of court dockets. Just as the hearing was about to adjourn, Kennedy launched into the criticism of mandatory minimums unprompted. Kennedy offered an example — it was unclear whether it was hypothetical or real — in which an 18-year-old is arrested for growing marijuana in a field and is caught with a hunting rifle in his truck. Such a defendant would be automatically categorized as a distributor, and his punishment would be increased because of the firearm, resulting in a 15-year sentence, Kennedy said. An 18-year-old, Kennedy said, is not even able to comprehend what a 15-year sentence means. The root of the problem, said Kennedy, is that “the legal profession has always been focused on the guilt-determination phase” of the justice system, ignoring the fairness of the process that follows. “This has to change,” he said. Rep. Frank Wolf, R-Va., appeared surprised by Kennedy’s remarks, but endorsed his sentiment, noting that more than 2 million people are currently behind bars nationwide. Legislation making its way through Congress this week may make it harder for federal judges to deviate from sentencing guidelines in child abuse cases. Earlier versions of the bill, which was attached to the so-called Amber Alert legislation, would have limited judicial discretion in a broad range of cases, but House and Senate negotiators narrowed the limitation. On the law clerk issue, Rep. Jose Serrano, D-N.Y., asked Kennedy — as he has for several years — to report on whether the Supreme Court has succeeded in hiring more minorities as law clerks. Kennedy noted that a record high total of nine of the current term’s 35 clerks are minority members. But he expressed continuing concern about the lack of diversity in the applicant pool, which he and Thomas agreed results in part from the heavy student loan debt that many law school graduates carry. Because top students can quickly earn far more than the $50,000 paid to law clerks, they said, many minority law school graduates cannot afford to become clerks. Thomas told of one potential law clerk he talked to who in “no way” could have worked for him because of $160,000 in outstanding student loan debt. “When you look at the pool of kids we are looking at, they are enormously employable and in demand,” said Thomas. Wolf replied by urging the court to adopt a loan-forgiveness program similar to those in place in other government agencies that reward top graduates for going into public service jobs. “This is a revelation,” Kennedy said in response. “You are teaching me.” Kennedy indicated he was unaware that other government entities have such programs. He pledged to look into the idea, and Wolf pledged to investigate whether legislation from Congress was needed to make it possible for the Supreme Court to adopt a debt-forgiveness program for law clerks. In fact, very few such programs are in place in federal agencies, even though Congress in 1990 authorized federal agencies to offer loan repayment of up to $6,000 a year, according to a recent report issued by Equal Justice Works, the Partnership for Public Service, the National Association for Law Placement, and the National Legal Aid and Defender Association. Last year, according to the report, only eight federal employees received repayments under programs in place in four federal agencies. The report urged “aggressive implementation” of such programs throughout the federal government as well as enactment of legislation to expand opportunities. The justices touched on other subjects at the hearing as well: � On security: The court is seeking authorization for 13 new police officers and is planning increased security measures during the upcoming renovation of the building’s infrastructure. But Kennedy said his colleagues do not want the building to “look like a fortress.” � On modernization: The justices mentioned in passing that the court is experimenting with allowing parties in cases that have been granted review to file merits briefs electronically as well as in paper form. Kennedy and Thomas agreed they do not want electronic filing to replace paper briefs completely. “I suppose you could condemn me to a life in front of a screen,” Kennedy said, but he wants to continue reading hard copy. � On caseload: Asked to comment on the dramatic drop in the number of cases the court is hearing each term — currently under 80, compared with 174 in 1986 — Kennedy said the number now is “frankly too low.” He added, “We are sometimes frankly puzzled that we don’t have more cases,” but said the justices won’t fill their docket with unworthy cases just to bring the number up. � On releasing audiotapes: The justices were asked if they expect to step up the practice of quickly releasing the audiotapes of high-profile oral arguments, as the court did in the University of Michigan affirmative action cases April 1. “I don’t think it’s going to be a common practice,” Kennedy said, expressing concern that doing it too often would run counter to the court’s view that “we ultimately will be judged by our opinions” rather than by questions asked at argument. Tony Mauro is Supreme Court correspondent for American Lawyer Media and The Recorder’s Washington, D.C., affiliate Legal Times. His e-mail address is [email protected].

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