Supreme Court Justice Sounds Off on Mandatory Minimum Sentences

This is a partial transcript of The Big Story With John Gibson, August 11, 2003, that has been edited for clarity. Click here to order the complete transcript.

JOHN GIBSON, HOST: It is not often that a Supreme Court justice will criticize or even discuss what goes on behind closed doors. But Justice Anthony Kennedy (search) is sounding off about something called mandatory minimum sentences.

As you might guess, FOX News senior judicial analyst Judge Andrew Napolitano is here to tell us what that's all about and weigh in on Kennedy's complaint. First of all, mandatory minimum sentences (search) — why does anybody care about that?

JUDGE ANDREW NAPOLITANO, FNC SENIOR JUDICIAL ANALYST: Well, judges care about it because it takes away what they believe they're paid to do, which is make decisions as to how long people should go to jail. It takes away that discretion. Congress appointed the Federal Sentencing Commission (search). That commission gave judges a chart, which basically tells them how they should sentence someone.

GIBSON: And Kennedy says this is bad?

NAPOLITANO: Kennedy says it's bad, that judges should have more discretion, either to sentence for more time or for less time, which is what it is in many of the states and which is what it was before the Federal Sentencing Commission came in.

GIBSON: Meanwhile, John Ashcroft (search) is issuing orders among U.S. attorneys to tattle on judges that want to sentence less.

NAPOLITANO: I think he started this little brouhaha by saying last week, “You will report on judges who sentence below the minimum, and you will tell the judge in court at the time of sentencing, 'Your honor, we're going to report this sentence to the justice to the attorney general.'”

Most judges would say, “Go ahead and report it. I have a lifetime job. I don't care what you say. Unless you're trying to intimidate me.” That's what Justice Kennedy, I think, is responding to. He's saying, “Don't try to intimidate judges.”

Now the attorney general is just reporting a public fact. But if he selectively chooses what to report, so as to embarrass judges or cause them to have to explain what they did, some might consider it intimidation.

GIBSON: Yes. Okay. On that point, these are lifetime tenure guys and women.


GIBSON: They don't have to worry about what John Ashcroft thinks about them for a moment.

NAPOLITANO: Absolutely. Nor do they have to respond to what he says about them publicly, because judges are not allowed to get involved in public disputes outside their courtroom unless they're on the Supreme Court and unless they're Justice Anthony Kennedy, who says, “Before the case even comes [me] when minimum sentencing guidelines come, I am going to vote against them because I think these trial judges should have discretion. And I'm not afraid of the attorney general.”

GIBSON: Judge Andrew Napolitano. Thank you.

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