New comments from Justice Breyer on punishment, sentencing, prisons, the death penalty and more

The Marshall Project has just released this notable and lengthy Q&A with retired SCOTUS Justice Stephen Breyer, which covers a number of topic that should be of interest to sentencing fans.  For full context and coverage, everyone should check out the full piece.  Here are just a few snippets that especially caught my eye:

Once, years ago, I asked Norm Carlson, who was a very distinguished and really well-respected head of the Bureau of Prisons.  We worked on the original [Sentencing Commission] guidelines.  We were talking about recidivism.  And I said, “Well, Norman, you’ve had years of experience.  You’re very, very respected. If it were up to you, what would you do to reduce recidivism rates?”  And he said, as I recall, “To be honest, I don’t know.”

And so people have all kinds of ideas, and it’s worth trying different ones.  But it’s hard to do.  It’s hard — very, very hard — to do. The [federal sentencing] guidelines were an effort — and still are an effort — to have fairer sentences, to allow the judges to understand the sentence they give will be the sentence that’s served, and moreover, [to] try to prevent wide discrepancies for the same crime, same kind of criminal across the country in different places.  So how well has that succeeded?  Like most things in the criminal law, up to a point. And I think with experience over time, perhaps it will be better….

[The death penalty] is so unfairly administered.  There’s neither rhyme nor reason.  The whole point of this criminal justice system is fairness. Is justice.  That’s why it’s called “criminal justice.”  And that is not an oxymoron, at least in theory.  So when I see that time after time, after time — I’m not saying “You’re all innocent.”  But there are a couple of cases where I really wonder.

I thought, “What can I do?” It’s not a big deal for the world that I would go out and announce I’m against the death penalty.  I want to do something, if I’m going to do this, that really explains what I’ve seen.  And that’s what I tried to do in Glossip.  And it tries to explain to other people, who can explain it to state legislatures.  And all it is, is what I’ve seen over a couple of decades.  And by the way, it’s going to get awful expensive.  Why reconsider it?  Because you can’t have both: a system that is basically fair, a system that works honestly, a system that tries to treat people equally, and also have a death penalty, as I’ve seen it over 20 years.