While pondering a few DA decisions to prosecute more harshly than circumstances seemed to warrant , I noticed that Justice Anthony Kennedy criticized the U.S. Sentencing Guidelines as unnecessarily harsh and counterproductive, essentially, in an address to the ABA in San Francisco the other day.
That made me wonder whether unduly harsh sentencing could be attacked not only on 'cruel and unusual' 8th Amendment grounds, which usually fail, but on the more fundamental 'rational basis test' (RBT) by which all statutes are supposed to pass muster.
If Justice Kennedy is of the view that the Guidelines are too harsh, isn't that the same as saying that to this extent they are arbitrary, capricious, and not of legitimate service to a valid governmental purpose, compelling reason or no?
As I understand it, ordinary economic and social legislation is presumed constitutional under Lee v. Williamson Optical, and I assume criminal statutes are considered 'ordinary' social legislation. However, such legislation must still be 'rational.'
Have criminal defendants as a class ever been held to be among the groups of Footnote Four requiring special protection? I doubt it, but can't think of a more 'discrete and insular minority' not enjoying any effective participation in the political process.
Could Justice Kennedy be laying down the groundwork for an RBT attack on the much criticized Guidelines (which were drafted in part by Justice Breyer)?
Robert Sheridan
SFLS
