It seems that U.S. Supreme Court Justices Anthony Kennedy and Stephen Breyer are not particularly fond of the way the nation’s justice system is functioning. Testifying before the House Appropriations Committee on March 24, both justices in forceful responses to committee questions said Congress should set about repairing what Justice Kennedy called a “broken” system. The Justice particularly lamented about prison overcrowding, solitary confinement and cost of “total incarceration.” He also, suggested that probation and other alternatives to prison would be wiser to prison for many offenders.


Justice Breyer added that mandatory minimums are a “terrible idea” and a “big problem for the Country.”


As criminal defense attorneys, we must point out that over the past three decades state legislatures and Congress have enacted thousands of ineffectual—some of which border on utter asininity—“get tough on crime” laws which have, almost unanimously, been upheld by the courts, including the U.S. Supreme Court; and let it be noted that Justice Kennedy on scores of occasions has been the author of decisions upholding these law-and-order pieces of legislation that criminal defense attorneys must defend against.


And what has been the result of the so-called “war on crime” first declared in the 1930s by former FBI Director J. Edgar Hoover?


According to the Prison Policy Initiative, in 2014 the nation’s criminal justice system had 1,739 state prisons, 102 federal prisons, 2,259 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails. These numbers do not include military prisons, immigration detention facilities, civil commitment centers, and prisons in U.S. Territories.


The U.S. indeed loves to incarcerate people. Although the nation represents only 5 percent of the world’s population, American prisons house 25 percent of the world’s prisoners, according to an exhaustive 2014 report by the National Research Council.


The Prison Policy Initiative said that of the total 2.4 million prisoners in this country, 1,392,028 are in state prisons, 721,654 are in local jails, 216,372 are in federal prisons, and 70,792 are in juvenile facilities with the remaining prisoners being housed in military prison, immigration detention facilities, Indian Country jails, U.S. territorial prisons, and civil commitment. The top three criminal categories for state prisoners are: drugs (237,000), robbery (185,800), and murder (166,700). The top three criminal categories for federal prisoners are: drugs (94,600), weapons (29,800), and immigration (29,110).


In a May 2014 “policy brief,” the Hamilton Project informed us that America’s incarceration rate is roughly three times what it was in the 1980s and six times higher than the rate of a “typical developed country.” In the process of telling the story about one inmate in California who “lost his mind” after spending 25 years in solitary confinement, Justice Kennedy enlightened the Appropriations Committee with this observation:


“I think, Mr. Chairman, that the corrections system is one of the most overlooked, misunderstood institutions in our entire government. In law school, I never heard about corrections. Lawyers are fascinated with the guilt/innocence adjudication process. Once the adjudication process is over, we have no interest in corrections. Doctors [and psychiatrists) know more about the corrections system … than we do. Nobody looks at it. California, my home state, ha[s] 187,000 people in jail at the cost of over $30,000 a prisoner. Compare [that] amount they gave to school children, it was about $3,500 a year. Now, this is 24-hour care and so this apples and oranges in a way. And this idea of total incarceration just isn’t working, and it’s not humane.”


Supreme Court justices, and all criminal law judges, do not live in a social vacuum. They understand the impact their decisions upholding draconian criminal laws have on the corrections system. Justice Kennedy, and his fellow justices, have let the mentally ill, the psychologically deranged, juveniles, and more than likely innocent men, like Cameron Todd Willingham, be put to death in state execution chambers because the “system” demanded it. And they have upheld laws that make it virtually impossible for an inmate wrongfully convicted in the “guilt/innocence adjudication process” to secure habeas corpus relief. There are thousands, even as much as 5 percent of the total inmate population, who are innocent—and judges, like Justice Kennedy, will let them rot or die in prison because some minor “procedural obstacle” forecloses their entry through the habeas door.


The victims’ rights movement, which gained both prominence and notoriety in Justice Kennedy’s home state in the mid-to-late 1970s, continually demands more incarceration and pushes legislative propositions making it easier for prosecutors to obtains convictions.


And, of course, the nation’s media, with its “if it bleeds, it leads” mindset, gave voice and legitimacy to those who demanded mass incarceration through the 1980s and 1990s as a legitimate social response to the “crime problem.”


Of course, It didn’t take corporate America long to realize that there were a “few bucks” to be made off prisons; in fact, so much so that they made an industry out prison building. Every prison space they constructed demanded that the state or federal government put a warm body in it—and those legislators and congressmen who benefitted immensely from the campaign donations of those charged with building prisons passed the laws that not only ensured more people would enter the prison gates but would stay behind them longer.


Today, the American corrections system is a multi-billion dollar industry with corporate shareholders reaping the rewards of the money their companies make servicing the needs of the hundreds of thousands of souls locked up—their security, healthcare, their goodies purchased from the canteen, their telephone privileges, etc.


And any attack on this corrupt industry will be met with catcalls and opposition from the likes of Appropriations Committee Chuck Grassley (R-IA) who rebuffed Justice Kennedy and Breyer’s calls for reform by labeling them as part of the “leniency industrial complex,” calling it the newest version of “soft on crime.”


There it is—spoken and defined. Any effort to cage the beast will be met with labels of being “soft on crime.” Any attempt to reform, much less dismantle, those parts of the criminal justice system, like the elimination of mandatory minimum sentencing and long-term solitary confinement, will be met by the law-and-order proponents and the victims’ rights movements as being part of the “leniency industrial complex.”


Mass incarceration does not prevent, much less reduce the nation’s crime—a rate that has been dramatically reduced over the past three decades for reasons unrelated to incarceration while the public’s fear of crime (and today terrorism) has continued unabated. The industry responsible for building and maintaining prisons has made sure of that—and, yes, judges like Justice Kennedy have played their role in letting the prison beast run amok. The prison industry is now as much a part of the American society as the Dallas Cowboys.