Is the Clock Running Out on Kerry?

Slowly but surely, John Kerry is eating into George W. Bush’s post-RNC lead. Yesterday, in fact, brought the first poll since August with Kerry in the lead, albeit by a statistically insignificant one percent.

Poll results vary widely, depending on the method used to normalize demographic groups and identify “likely” voters. The same polling consortium (Investors Business Daily/Christian Science Monitor) showed just a 3-point Bush lead after the convention, which is a lot less than the 12-point lead that Gallup and some other polls showed. It will take a lot more than just one poll to persuade anybody that Kerry actually has lead.

In the meantime, Kerry is fighting a perception of inevitability. Recent New York Times and Washington Post polls show that around 60% of voters — regardless of whom they personally favor — expect Bush to win a second term. The perception of being a loser infects a campaign like cancer. As Howard Kurtz puts it in today’s Washington Post online:

It’s not just who’s ahead—most of all the in Key Battleground States—but who people think is going to win.

By that measure, the election is a runaway…

Why does this matter? For one thing, it means Kerry hasn’t really gotten over the threshold. If people don’t think he’s got a real shot at winning, it depresses interest in the election and means they spend less time, if any at all, trying to envision him as commander-in-chief. That, in turn, makes it harder for him to reduce the stature gap that any challenger faces against an incumbent.

Also affected is the conventional wisdom in the press. Every story about Kerry is framed in some way by him being behind in the polls. By October, you might start seeing pieces about which of Bush’s Cabinet members would stick around in 2005, or whether the president will get serious about tax simplification. That sends a subtle message as well: Kerry is looking like a long shot.

So Kerry not only has to catch up (to the degree these volatile polls show him behind), but has to be perceived as catching up. Which is why the media zeitgeist after the first debate will be so important, because it will affect the other debates as well.

Kurtz goes on to remind us what happened after Kerry’s surprise victory in the Iowa caucuses. He became the instant favorite in all of the other state races (and eventually won nearly all of them), simply because swing voters like to go with a winner.

So while Kerry gradually gnaws away at Bush’s lead, an aura of inevitability still surrounds Bush’s re-election, which in turn depresses the turnout the Democrats so desperately need if they are to capture the White House.

A Final Trip to Bedrock for 9/11 Families

On Saturday, relatives of 9/11 victims had the chance to descend to the bedrock at Ground Zero, as they’ve done very year for the last three, knowing — as the Daily News put it — that “the descent to the hallowed ground may be their last.”

The reason is that, by this time next year, construction of the Freedom Tower, the new PATH terminal, and the memorial are expected to be well underway, meaning that “unfettered access to bedrock is unlikely to exist again.”

Not all of the 9/11 families are happy about this:

Michelle Stabile, 43, said the thought of construction equipment covering up the bedrock is painful.

“It’s discouraging to see the construction going on around the site. It’s disturbing,” said Stabile, who lost fiancé Frank Koestner. “And personally I would have rather they left the [site open].”

Far be it from me to dictate how somebody else should process their grief, but this is not a realistic point of view. Anybody who’s visited the site can see that a 14-acre hole in the ground can’t simply be left as a permanent gash in the streetscape. There needs to be an appropriate balance between recognizing their loss, and rebuilding what we lost. Those 9/11 families who fail to understand this balance do not offer much help in this ongoing debate.

Not-So-Clear Politics

RealClearPolitics posted a commentary piece yesterday called “John Edwards and the Shrinking Battleground.” For those not familiar with it, RealClearPolitics is about as real and clear as FoxNews is fair and balanced. In other words, it’s a Republican site.

When John Kerry chose John Edwards as his running mate, RCP wrote:

While this pick may play well in the next three weeks I don’t know how well it is going to work after Labor Day when the real contest begins…The Edwards pick is a poll-driven mistake…This is a very serious election, and the Bush-Cheney campaign will make that abundantly clear. Kerry would have been better off with the safe, solid choice of Dick Gephardt who at least would have helped potentially win Missouri.

Two months later, RCP thinks it has a we-told-you-so moment:

Senator Edwards did give Kerry a little bounce… A week before Kerry’s VP announcement Bush was up about two points and a week after Edwards was chosen the Kerry/Edwards ticket had moved to roughly a three point lead. So Edwards delivered about a five point bounce that subsequently faded during the rest of July as Kerry headed into his convention in Boston.

But now we are in the middle of September, and you have to wonder just what John Edwards is bringing to the table. The contrast with Dick Cheney that all the pundits were atwitter about in early July suddenly doesn’t look so great from the Kerry perspective…

Because of the unwise choice of Edwards as a running mate, even if Kerry pulls back to even in the national polls his route to 270 electoral votes is a big problem — and almost impossible if he can’t win either Florida or Ohio. Had he chosen Gephardt and put Missouri into play, the Kerry campaign’s electoral math would look considerably kinder. Flipping Missouri alone would get Kerry over 270 EV’s, and flipping Missouri and New Hampshire would allow for the loss of New Mexico. Wining Missouri, New Hampshire and Nevada would have allowed Kerry to lose Wisconsin and still win the election.

Of course, it is not a sure thing that Gephardt would have been able to deliver Missouri. Given Gallup’s latest poll showing Bush ahead by fourteen, maybe even Dick Gephardt wouldn’t have been able to deliver his home state. But unlike North Carolina, Missouri is a much more competitive state for Democrats, and in a close election where Kerry had a chance to win, one would think Missouri with Dick Gephardt on the ticket would have been very much in play.

Instead, Kerry is stuck with a running mate who brings nothing except a pretty smile. The Kerry campaign had run a pretty darn good campaign through June, but starting with the Edwards choice, a wasted convention, an insane comment at the Grand Canyon and no answer to his Vietnam and antiwar past, Kerry has dug himself what may be an insurmountable hole.

Now, I have to admit that it’s unclear precisely what Edwards brings to the Democratic ticket, but you have to be suspicious of advice coming from a source that wants Kerry to lose. Most commentators — Democrat or Republican — thought Edwards was a superior choice to Gephardt. As RCP notes, it is far from certain that Gephardt would have delivered Missouri. He is popular only in his hometown of St. Louis; he is actually a mild liability elsewhere in the state. Gephardt also reminds people of the Humphrey-Mondale-Scoop Jackson style ultra-liberal Democrat that most of the country has long since resoundingly rejected.

RCP isn’t done second-guessing the strategy of the candidate it opposes. They chastise Kerry’s decision during the summer to put more states in play, saying:

Arizona, Colorado Louisiana and Virginia? It’s not complicated to figure out that if these states are close Bush is finished. So what was their strategy in spending time and money in states that they were only going to carry if they didn’t need them to win the election? Maybe they bought in to the conventional wisdom over the summer that Bush was in big, big trouble. Whatever the strategic rationale, it was a major mistake and a misallocation of resources.

With the wasted money and time in states they don’t have a prayer of carrying and a VP nominee that can’t make a difference in any state that will matter, the Kerry folks have boxed themselves into an electoral corner. So now they are not only staring at how they get this race back to even in the national polls but also how they are going to piece together the necessary 270 Electoral Votes.

But RCP ignores one critical fact. Because John Kerry was such a prodigious fundraiser during primary season, the campaign had money to burn during the summer. And given the “use-it-or-lose-it” rules that govern modern elections, Kerry had to spend the money, because after the convention he was limited to the $75 million cap that constrains all candidates that accept federal funding, as both Kerry and Bush are doing. Naturally, Kerry invested heavily in the main battleground states where RCP believes he should be focusing, but at some point those investments reach saturation, and a candidate needs to expand his appeal. (If you see a Bush add in the safe Kerry state of California — and you will — it’s the opposite coin of the same strategy.)

It is far from clear that Kerry’s “route to 270 electoral votes is a big problem.” The non-partisan daily political blog from ABC News, The Note, refers in today’s entry to “the semi-friendly contours of the Electoral College.” There are actually quite a few ways to get Kerry to 270.

In any event, although both candidates still have a lot of work to do, Kerry’s prospects aren’t as bleak as RCP would like us to believe. The latest national poll (jointly sponsored by the Christian Science Monitor and Investor’s Business Daily) has the race at a 46%–46% tie. Rasmussen Reports has also been showing the race essentially tied.

It will take a while to find out if the Bush convention bounce has truly faded, but it certainly looks like it has. That’s why they call them “bounces.”

Blue Hill at Stone Barns

Note: Click here for a more recent visit to Blue Hill at Stone Barns.

In the late 19th and early 20th centuries, John D. Rockefeller amassed some 4,600 acres in the area that’s now Tarrytown. There he built his family mansion, Kykuit (pronounced KY-kit). His grandson, Nelson D. Rockefeller, bequeathed Kykuit to the National Historic Trust, which maintains it as a museum, along with hundreds of acres of parkland and nature trails. Even in its reduced state, the old Rockefeller estate is still massive, and some of the family still live there, including Happy Rockefeller, the late Governor’s widow.

The Stone Barns estate is another gem in the Rockefeller crown. It’s a former cattle farm that David Rockefeller (JDR’s last surviving grandson) has renovated and opened to the public. As the website explains:

Stone Barns Center for Food and Agriculture is a beautiful non-profit farm, educational center and restaurant in the heart of Westchester County. Our mission is to demonstrate, teach and promote sustainable, community-based food production. Open to visitors of all ages, we offer a unique experience: a chance to learn about farming firsthand on a real working farm, the only farm open to the public so close to New York City.

Central to the mission is a working farm:

By contemporary measures, our farm is small, but it is well diversified and extremely productive. We manage our livestock and crops in a symbiotic relationship, attempting to mimic nature’s own methods. By working in partnership with our environment, instead of resisting its natural tendencies, we produce food without the use of chemical fertilizers, pesticides or herbicides. Our only amendments to the soil are compost made from humus-rich manure, minerals and organic material. We use an intensively managed rotation method in our garden and greenhouse beds, preserving the soil and locking in important nutrients.

And lastly, there is a restaurant: Blue Hill Stone Barns. It’s a cousin to Blue Hill NYC in the Village, but the Stone Barns version emphasizes locally raised ingredients. The menu changes regularly, with many of the vegetables coming directly from the Stone Barns farm itself. They also slaughter their own chickens and pigs. To avoid complete monotony, they do obtain ingredients (such as fish, beef, and lamb) elsewhere.

The menu is simple to explain: you choose two, three, or four courses; and you pay $46, $56, or $66. Portion sizes are adjusted, so you’re getting a full meal whichever option you choose. It’s more a matter of whether you want four “tasting-menu-sized” portions, or two traditionally-sized portions, or something in between. On a recent visit, a friend and I each chose three courses.

The menu is divided into four sections, with three or four options per section. On our visit, these were labeled “Tomatoes,” “More Tomatoes,” “From the Pastures,” and “Hudson Valley Pastures.” The restaurant encourages you to ignore the traditional appetizer/entrée distinction, but the items in the first category (“Tomatoes”) were undeniably appetizers. The “More Tomatoes” category consisted of seafood dishes that included tomatoes somehow. (Can you guess which vegetable was in season?) The last two categories offered chicken and meat dishes respectively.

I started with a mixed tomato medley, which even included a tomato sorbet. My friend’s salad included lettuce, tomatoes, and an astonishing confection of egg yolks with hazelnuts, sesame seeds, and homemade pancetta. This must be one of the restaurant’s signature dishes, as practically every reviewer has mentioned it with approval — as well they should.

For the second course, we both chose crabmeat pressed between squares of yellow squash. I guess tomato must have been in there somehow. We got four of these little crabmeat sandwiches, resembling ravioli. This too was a hit.

For the third course, we diverged again. My friend got the crescent duck, with asian greens and baby carrots, which she said was the best duck she’d ever tasted. I chose the braised bacon and roasted pig. The pig actually seemed to be prepared three different ways, and it’s beyond my food vocabulary to describe them, but it was a superb dish. Incidentally, I noticed another diner who had ordered this dish as part of a two-course meal, and what the server said was true: if you order two courses, each one is a bit larger than what we had. But our three courses were more than enough for a full meal. We skipped dessert and went home very happy.

Although Blue Hill Stone Barns is in a rustic setting, it is upscale dining. One of the food blogs told about a guy who turned up in shorts (designer shorts!) and was turned away. Well, it turns out his lady friend knows the chef, and they were able to wangle something, but don’t turn up in shorts. The restaurant has been decorated elegantly and thoughtfully. You watch the patrons as they walk in, and you realize that most have come for a fancy evening out — farm or no farm. (Informal dress is fine, though; just no shorts.)

Reservations at Blue Hill Stone Barns aren’t easy to come by. For prime times, you’ll need to call a full two months in advance. Luckily, like many a new restaurant, Blue Hill Stone Barns offers dining at the bar, where no reservation is required. The bar here has a wide surface that easily accommodates placemats and stemwear. The bar stools have backs, so they are comfortable to sit in for a long meal.

Indeed, if you sit at the bar nowadays for just drinks, the bartender may just vaguely hint that the seats are needed for more lucrative customers. We didn’t observe that here, but it has been known to happen at other upscale restaurants that offer bar dining, such as Babbo. This is not likely to be an issue at Blue Hill Stone Barns, as there is an adjoining lounge with plush sofas and chairs, which seems to be preferred by those with reservations who want a pre-dinner cocktail. A bar, it seems, is no longer a bar.

For a party of two or three, there is really no disadvantage to dining at the bar, and it means you can make the trip on the spur of the moment — as we did. Give it a try! Tarrytown is about a 45-minute ride from Grand Central, and there are at least two trains per hour, even into the late evening. You’ll find taxis waiting at Tarrytown station, and it’s about a $10 ride to the Stone Barns Center.

Perhaps we’ll be back in the winter, when no doubt the fireplace will be roaring, and tomatoes will be replaced by whatever is then in season.

Blue Hill at Stone Barns (630 Bedford Road, Pocantico Hills, New York)

Food: ***
Service: ***
Ambiance: ***
Overall: ***

Bridge Cafe

Bridge Cafe is located in a 1794 building at the foot of the Brooklyn Bridge, on the corner of Water and Dover streets. One of the oldest buildings still standing in Manhattan, it has been consistently the “site of a food and/or drinking establishment” for the entire time, although the precise purpose for which it was used has changed frequently. For a while during the 18th century, it was a bordello. The current owners bought the building in 1979 and chose the current name, retaining an interior that is unchanged since the 1920s.

Bridge Cafe is one of the few serious restaurants below Chambers Street, by which I mean a restaurant not serving tourist or “formula” food. The New York Times awarded it one star several years ago. Ed Koch, the former mayor, once said it was his “favorite restaurant.” The menu, which changes seasonally, is an eclectic mix of New American specialties. Appetizers are $7-11, entrées $16-27, making Bridge Cafe fairly expensive for the neighborhood, but mid-priced by Manhattan standards.

Unfortunately, Bridge Cafe misfired on most of what my friend and I tried on Friday night. We both started with a cold cucumber and avocado soup, which was dominated by tabasco sauce. I happen to like spicy food, but when an ingredient takes over the soup, it ought to be mentioned in the description on the menu. My friend couldn’t finish it.

For the entrée, I chose “Our Famous Buffalo Steak,” which comes with a lingonberry sauce and homemade potato gnocchi. The buffalo was tough and tasted gamey. The lingonberry sauce was dreary, and seemed to be there only to mask a piece of meat that never could have stood as an acceptable meal on its own. It was also the most expensive item on the menu. My friend ordered a vegetarian dish that was dominated by a white bean ragout, with the other promised vegetables getting literally lost in the sauce.

Bridge Cafe has garnered mostly favorable reviews, so I have to think we caught it on a bad night, or that we just happened to order the worst items on the menu. Many of the other dishes certainly looked tempting, at least on paper. I’ll give them another chance one of these days. The wine list offers mostly U.S. vintages, and there’s a 30% discount on Tuesdays and Wednesdays.

Bridge Cafe (279 Water Street at Dover Street, South Street Seaport)

Food: *
Service: *½
Ambiance: *
Overall: *

The Bush Bounce, Part Deux

I wrote my earlier post first thing this morning. In the meantime, today’s Rasmussen tracking poll shows an absolute dead-heat: 47.3% apiece for George W. Bush and John Kerry. (It is only in the last four days that Rasmussen started reporting his results in tenths of a percent. I personally think this imparts greater precision to the numbers than they deserve.)

As I mentioned in my earlier post, Scott Rasmussen said that the results he published yesterday (a 1.1% lead for Bush) included an extremely pro-favorable Kerry sample on Saturday, partly offsetting pro-Bush results on Friday and Sunday. As Rasmussen is now showing a tied race, it means that two of the last three days have been pro-Kerry. Perhaps the Bush bounce is now retreating — as “bounces” invariably do.

This is the first presidential race in my adult lifetime in which a candidate has support that I simply cannot comprehend. That candidate is George W. Bush. Oh, I’m not talking about Bush’s core support among the Republican stalwarts, who clearly would vote for any member of their party — just as the Democratic base does for their candidate. But the party faithful get a candidate to no more than a 30–35% standing. The rest of a candidate’s support are the so-called “persuadable voters.” And how any significant percentage of persuadable voters could be supporting Bush just baffles me.

I mean, what has George W. Bush done that worked? He invaded Afghanistan, but failed to find Osama bin Laden or Mullah Omar. He invaded Iraq, but failed to find the WMD that were the reason for the invasion in the first place. Not one of his domestic programs has produced the result that was advertised. Not one. His second-term domestic agenda, which the conservative columnist George Will described as “pedestrian,” included nothing but a bunch of old Republican chestnuts that have been on the table for years, but have never come close to becoming law.

In short, the Bush platform comes down to, “Give me four more years, and perhaps I’ll get it right this time.” Or perhaps it comes down to, “Whatever you may think of me, at least I’m not John Kerry.” It’s a sign of how feeble a candidate Kerry is, that he has managed so far to squander such an obvious opportunity.

The Bush Bounce

If you’re hoping for a Bush victory in November, you couldn’t have been happier when first Time magazine, and then Newsweek, uncorked polls this week showing the President with an 11-point lead over challenger John Kerry. In the history of polling, no Presidential candidate with a double-digit lead on Labor Day has gone on to lose in November. Elections typically get tighter near the end, but they don’t tighten that much.

The plot thickens, however. Rasmussen Reports publishes a tracking poll every day. Since Kerry clinched the nomination in the spring, neither candidate been more than four points away from the other. Yesterday, Rasmussen showed Bush with just a 1.1% lead, 47.6% to 46.5% over Kerry. Rounding out the post-convention polls to date, Gallup shows Bush ahead by 7 points, 52% to 45%, among likely voters.

What is going on here? Rasmussen was assailed with complaints after he failed to find the Bush bounce that Time/Newsweek did. All year long, his poll has been within the margin-of-error of all the other major national polls, and a 10-point difference surely indicates that something is wrong — the polls shouldn’t be that far apart.

In a revealing article that should be required reading for anybody who interprets polls, Scott Rasmussen cleared it up. The short answer is that Gallup has it about right: a Bush lead of 5-7 points. You can follow the link, but here is a brief explanation:

In both the Time and Newsweek polls, a plurality of voters surveyed identified themselves as Republicans. In the polling era, there has never been a presidential election in which Republican voters outnumbered Democrats. Republicans win only by getting a sufficient number of Democrats to cross over, which (luckily for Republicans) is a pretty easy thing to convince them to do. Nevertheless, party affiliation has remained pro-Democrat from one election cycle to the next.

Now, however enthused you were about the Republican convention, do you believe these four days were enough to turn a plurality of the country into self-identifying Republicans, when it has been the opposite for generations? Or is it just possible that Newsweek and Time conducted their polls during the convention itself, when a high proportion of Republicans were likely to be home with their TV sets tuned in? Rasmussen concludes the latter.

On the other hand, Rasmussen concedes that his three-day tracking sample included an extraordinarily good day for Kerry on Saturday, which explains why he shows just a 1.1% lead for the President. Excluding Saturday, Rasmussen shows a 4-point spread, which is in the zip code of Gallup’s 7-point margin. The strong likelihood is that Bush’s actual lead is somewhere in the 4 to 8-point range — not fatal to Kerry, but clearly not where he’d hoped to be. Gallup, incidentally, gives Bush a 2-point “bounce” out of his convention, which is right where the pundits predicted it would be, and comparable to the bounce that most pollsters gave Kerry after his convention.

Reading all of the polling analysis on the web reminded me that modern poll numbers are “cooked” a lot more than people realize. Most pollsters, for instance, report the views of “likely voters.” This means that the poll is not reporting the “raw” results, but the results after eliminating those judged unlikely to vote. This is a reasonable methodology, for polls show that many more people state an intention to vote than actually do. The no-shows tend to be predominantly Democratic, and a poll that failed to exclude them would consistently predict Democrat victories that fail to materialize on election day. But predicting “likely voters” is not an exact science. If turnout is higher than historical norms, it will favor Kerry.

Although Bush does not have an 11-point lead, by any measure he does have a very real lead that is right at, or perhaps slightly outside of, the margin of polling error. That lead will most likely subside a bit — that’s why they call the post-convention surge a “bounce” — but Kerry still has some ground to make-up. In addition, although the Time and Newsweek polls were clearly erroneous, Bush gets the benefit of the perception, however inaccurate, that he enjoys a potentially insurmountable lead. Kerry, on the other hand, has suffered through a 2 or 3-week period in which he has largely been responding to news (most of it unfavorable to him), rather than shaping it himself. Comparisons to the lead Michael Dukakis squandered in August 1988 are apposite.

If this election is going to be a real race, Kerry is going to need to make it so. And soon.

Justice Kennedy Condemns Harsh Federal Sentences

An unlikely advocate has urged the federal government to take a long look at revising America’s approach to criminal sentencing — and especially incarceration. In a blistering speech to the American Bar Association in August 2003, conservative Supreme Court Justice Anthony Kennedy lashed out at America’s obsession with locking up non-violent offenders and tossing away the key:

Were we to enter the hidden world of punishment, we should be startled by what we see. Consider its remarkable scale. The nationwide inmate population today is about 2.1 million people. In California, even as we meet, this State alone keeps over 160,000 persons behind bars. In countries such as England, Italy, France and Germany, the incarceration rate is about 1 in 1,000 persons. In the United States it is about 1 in 143.

We must confront another reality. Nationwide, more than 40% of the prison population consists of African-American inmates. About 10% of African-American men in their mid-to-late 20s are behind bars. In some cities more than 50% of young African-American men are under the supervision of the criminal justice system.

While economic costs, defined in simple dollar terms, are secondary to human costs, they do illustrate the scale of the criminal justice system. The cost of housing, feeding and caring for the inmate population in the United States is over 40 billion dollars per year. In the State of California alone, the cost of maintaining each inmate in the correctional system is about $26,000 per year. And despite the high expenditures in prison, there remain urgent, unmet needs in the prison system.

It is no secret why this has happened. Since about the mid-1970s, Congress and the state legislatures have routinely stiffened the criminal codes, mandating generally longer sentences and reduced opportunities for parole. (The federal system abolished parole entirely, meaning that an unreasonably harsh sentence can almost never be corrected afterwards.) The trend is less pronounced at the state level, because states usually need to raise taxes to build new prisons. Indeed, as states face decreasing tax revenues in light of sluggish or negative job growth, many are enacting shorter sentences as a way of reducing correctional budgets.

The federal government faces no such constraints. Its capacity to rack up deficits is essentially limitless, and the Justice Department budget — staggering though it is — pales to other budget-busters like defense and entitlements. It’s therefore not surprising that, where the same crime can be prosecuted at either federal or state level, the federal sentence is nearly always higher. It is usually a lot higher. Justice Kennedy again:

Consider this case: A young man with no previous serious offense is stopped on the George Washington Memorial Parkway near Washington D. C. by United States Park Police. He is stopped for not wearing a seatbelt. A search of the car follows and leads to the discovery of just over 5 grams of crack cocaine in the trunk. The young man is indicted in federal court. He faces a mandatory minimum sentence of five years. If he had taken an exit and left the federal road, his sentence likely would have been measured in terms of months, not years.

It is difficult to fathom the public policy benefit of locking up a kid for five years, with no possibility of parole, when his offense is one he has inflicted upon himself. Mind you, I’m not suggesting that the kid deserves any awards for screwing up his life with drugs, but screwing up his life with prison is not any improvement. Justice Kennedy continues:

United States Marshals can recount the experience of leading a young man away from his family to begin serving his term. His mother says, “How long will my boy be gone?” They say “Ten years” or “15 years.” Ladies and gentlemen, I submit to you that a 20-year-old does not know how long ten or fifteen years is. One day in prison is longer than almost any day you and I have had to endure. Alexander Solzhenitsyn describes just one day in prison in the literary classic “One Day in the Life of Ivan Denisovich.” Ivan Denisovich had a ten-year sentence. At one point he multiplies the long days in these long years by ten. Here is his final reflection: “The end of an unclouded day. Almost a happy one. Just one of the three thousand six hundred and fifty-three days of his sentence, from bell to bell. The extra three were for leap years.”

Under the federal mandatory minimum statutes a sentence can be mitigated by a prosecutorial decision not to charge certain counts. There is debate about this, but in my view a transfer of sentencing discretion from a judge to an Assistant U. S. Attorney, often not much older than the defendant, is misguided. Often these attorneys try in good faith to be fair in the exercise of discretion. The policy, nonetheless, gives the decision to an assistant prosecutor not trained in the exercise of discretion and takes discretion from the trial judge. The trial judge is the one actor in the system most experienced with exercising discretion in a transparent, open, and reasoned way. Most of the sentencing discretion should be with the judge, not the prosecutors.

Professor James Whitman considers some of these matters in his recent book Harsh Justice. He argues that one explanation for severe sentences is the coalescence of two views coming from different parts of the political spectrum. One view warns against being soft on crime; the other urges a rigid, egalitarian approach to sentence uniformity. Both views agree on severe sentences, and both agree on mandatory minimum sentences. Whatever the explanation, it is my hope that after those with experience and expertise in the criminal justice system study the matter, this Association will say to the Congress of the United States: “Please do not say in cases like these the offender must serve five or ten years. Please do not use our courts but then say the judge is incapable of judging. Please, Senators and Representatives, repeal federal mandatory minimums.”

Justice Kennedy’s point is that, while drugs may indeed ruin lives, ten or fifteen-year sentences imposed upon twenty-year-olds accomplish much the same thing—at government expense. Somebody locked up for that long has virtually no chance of ever becoming a productive member of society, once the most productive years of his early adulthood are taken away.

One could write all day about the inequities in the federal system. The ABA report that Justice Kennedy’s speech spawned elaborates:

Aside from the fact that mandatory minimums are inconsistent with the notion that sentences should consider all of the relevant circumstances of an offense and offender, they tend to shift sentencing discretion away from courts to prosecutors. Prosecutors do not charge all defendants who are eligible for mandatory minimum sentences with crimes triggering those sentences. If the prosecutor charges a crime carrying a mandatory minimum sentence, the judge has no discretion in most jurisdictions to impose a lower sentence. If the prosecutor chooses not to charge a crime carrying a mandatory minimum sentence, the normal sentencing rules apply. Although prosecutors have discretion throughout the criminal justice system not to charge offenses that could be charged and thereby to affect sentences, their discretion is pronounced in the case of mandatory minimums because of the inability of judges to depart downward.

The report continues:

Federal drug sentences also illustrate some of the possible effects of mandatory minimums on racial disparity. When compared either to state sentences or to other federal sentences, federal drug sentences are emphatically longer. For example, in 2000, the average imposed felony drug trafficking sentence in state courts was 35 months, while the average imposed federal drug trafficking sentence was 75 months. In 2001, the average federal drug trafficking sentence was 72.7 months, the average federal manslaughter sentence was 34.3 months, the average assault sentence as 37.7 months, and the average sexual abuse sentence was 65.2 months.

These lengthy sentences largely result from the impact of the Anti-Drug Abuse Act of 1986 (ADAA). The ADAA created a system of quantity-based mandatory minimum sentences for federal drug offenses that increased sentences for drug offenses beyond the prevailing norms for all offenders. Its differential treatment of crack and powder cocaine has resulted in greatly increased sentences for African-American drug offenders.

The Act set forth different quantity-based mandatory minimum sentences for crack and powder cocaine, with crack cocaine disfavored by a 100-to-1 ratio when compared to powder cocaine. Thus, it takes 100 times the amount of powder cocaine to trigger the same five-year and ten-year mandatory minimum sentences as for crack cocaine. The Act does three other things: (1) It triggers the mandatory minimums for very small quantities of crack — five grams for a mandatory five-year sentence and 500 generates a ten-year term. (2) It makes crack one of only two drugs for which possession is a felony. (3) It prescribes crack as the only drug that triggers a mandatory minimum sentence for mere possession.

The overwhelming majority of crack defendants are African-American, while the overwhelming majority of powder cocaine defendants are white or Hispanic. In 1992, 91.4% of crack offenders were African-American, and in 2000 84.7% were African-American.

There aren’t many ways to escape a mandatory minimum, but one of them is to provide “substantial assistance in the investigation or prosecution of another person who has committed an offense.” There are many problems in the administration of this superficially wise provision of the law. Only the government can petition the sentencing judge for a “substantial assistance” departure, and jurisdictions vary widely in the kind of assistance they’ll accept as “substantial.” Moreover, as many have noted, this provision is biased in favor of an offender who’s part of a conspiracy, and who’s sufficiently entangled in that conspiracy to implicate many others. Individual offenders and low-level conspirators — those who would seem to have offended least — typically have no substantial assistance to provide, and therefore cannot escape mandatory minimums.

When a conservative like Justice Kennedy says it’s time to reform federal sentencing laws, he deserves to be taken seriously. There’s as yet no evidence that a majority of congress is prepared to agree with him.