Antecedents of Brown v. Plata: Justice Kennedy on prisons and prisoners

Justice Anthony Kennedy wrote the stunning majority opinion in Brown, Governor v. Plata last month.  There the U.S. Supreme Court ordered California to alleviate the overcrowding in its prisons.  His rhetoric reminded Linda Greenhouse of the great days of the Warren Court.  Kennedy's role should not have been a complete surprise as this 2003 address to the American Bar Association shows.  An excerpt follows:

The subject of prisons and corrections may tempt some of you to tune out. You may think, “Well, I am not a criminal lawyer. The prison system is not my problem. I might tune in again when he gets to a different subject.” In my submission you have the duty to stay tuned in. The subject is the concern and responsibility of every member of our profession and of every citizen. This is your justice system; these are your prisons. The Gospels’ promise of mitigation at judgment if one of your fellow citizens can say, “I was in prison, and ye came unto me,” does not contain an exemption for civil practitioners, or transactional lawyers, or for any other citizen. And, as I will suggest, the energies and diverse talents of the entire Bar are needed to address this matter.
Even those of us who have specific professional responsibilities for the criminal justice system can be neglectful when it comes to the subject of corrections. The focus of the legal profession, perhaps even the obsessive focus, has been on the process for determining guilt or innocence. When someone has been judged guilty and the appellate and collateral review process has ended, the legal profession seems to lose all interest. When the prisoner is taken way, our attention turns to the next case. When the door is locked against the prisoner, we do not think about what is behind it.
We have a greater responsibility. As a profession, and as a people, we should know what happens after the prisoner is taken away. To be sure the prisoner has violated the social contract; to be sure he must be punished to vindicate the law, to acknowledge the suffering of the victim, and to deter future crimes. Still, the prisoner is a person; still, he or she is part of the family of humankind.

Edward M. Kennedy - the last word - letter to Pope Benedict XVI

The last words in this series of posts on the death of Edward M. Kennedy belong to him.

It has been very painful for me to see bishops denounce and refuse communion to politicians, like Joe Biden, and John Kerry who embrace Vatican II Catholicism, but have refused to embrace as a public demand the criminalization of abortion.

Fortunately Edward Kennedy never suffered that humiliation. His parish priest delivered the homily at his funeral, Cardinal Sean O'Malley presided at the funeral mass, and Archibishop Theodore McCarrick presided at the graveside at Arlington National Cemetery.

There Cardinal McCarrick read the letter from the Senator to the Pope which President Obama carried. It is a profession of faith by a man who was inspired by his murdered brothers, and by Pope John XXIII, who presided briefly over the Church, and released the spirit of renewal expressed in the Council known as Vatican II. And the Archbishop Emeritus also read Pope Benedict's gracious reply for which we are all grateful. - GWC

At the graveside service at Arlington National Cemetery for Senator Edward M. Kennedy, Theodore Cardinal McCarrick, archbishop emeritus of Washington, D.C. and a family friend, read portions of the letter that President Obama delivered on Kennedy's behalf to the pope last month and portions of the pope's reply.

Kennedy's letter:

"Most Holy Father, I asked President Obama to personally hand deliver this letter to you. As a man of deep faith himself, he understands how important my Roman Catholic faith is to me, and I am deeply grateful to him.

"I hope this letter finds you in good health. I pray that you have all of God’s blessings as you lead our Church and inspire our world during these challenging times.

"I am writing with deep humility to ask that you pray for me as my own health declines. I was diagnosed with brain cancer more than a year ago, and, although I continue treatment, the disease is taking its toll on me. I am 77 years old and preparing for the next passage of life.

"I have been blessed to be a part of a wonderful family, and both of my parents, particularly my mother, kept our Catholic faith at the center of our lives. That gift of faith has sustained, nurtured and provided solace to me in the darkest hours. I know that I have been an imperfect human being, but with the help of my faith, I have tried to right my path.

"I want you to know, Your Holiness, that in my nearly 50 years of elective office, I have done my best to champion the rights of the poor and open doors of economic opportunity. I’ve worked to welcome the immigrant, fight discrimination and expand access to health care and education. I have opposed the death penalty and fought to end war. Those are the issues that have motivated me and been the focus of my work as a United States Senator.

"I also want you to know that even though I am ill, I am committed to do everything I can to achieve access to health care for everyone in my country. This has been the political cause of my life. I believe in a conscience protection for Catholics in the health care field and will continue to advocate for it as my colleagues in the Senate and I work to develop an overall national health policy that guarantees health care for everyone.

"I have always tried to be a faithful Catholic, Your Holiness, and though I have fallen short through human failings, I have never failed to believe and respect the fundamental teachings. I continue to pray for God’s blessings on you and our Church and would be most thankful for your prayers for me."

Pope Benedict XVI's reply:

"The Holy Father has read the letter which you entrusted to President Barack Obama, who kindly presented it to him during their recent meeting. He was saddened to know of your illness, and has asked me to assure you of his concern and his spiritual closeness. He is particularly grateful for your promise of prayers for him and for the needs of the universal Church.

"His Holiness prays that in the days ahead you may be sustained in faith and hope, and granted the precious grace of joyful surrender to the will of God our merciful Father. He invokes upon you the consolation and peace promised by the Risen Savior to all who share in His sufferings and trust in His promise of eternal life.

"Commending you and the members of your family to the loving intercession of the Blessed Virgin Mary, the Holy Father cordially imparts his Apostolic Blessing as a pledge of wisdom, comfort and strength in the Lord."

John Lewis on Edward Kennedy

Congressman John Lewis, a hero of the southern lunch counter "sit-in's" as an activist in the Student Non-Violent Coordinating Committee (SNCC), pays tribute to Senator Kennedy - and his brothers.

With Edward Kennedy's death we lose an important link to our past - those who not only remember but played a key role in the defeat of de jure racial segregation. It remains the case that few, if any, of those who now insist that the constitution does not permit taking race into account played any leadership role in the overthrow of the American system of Apartheid known as Jim Crow.

Ted Kennedy on the assassination of Martin Luther King

1968 while the fires burned and troops were in the street Kennedy spoke of the Rev. Martin Luther King and the dangers to the country.

"What has become of our land? How many good men must we give before we finally face the fact that the weakness of our society is the weakness in ourselves. We have lets events master us rather than we them. We have let the haters take the lead and we are paying the price for that today. Hundreds of years of oppression must be accomodated not by the least we can do but by the most we can do."

The introductory remarks end at about the 5 minute mark.

Edward M. Kennedy

John, Robert, and Edward. We miss them all. Joseph Kennedy, Jr. we never knew.

Ted's leadership was important to me as we moved to opposition to the war. He did it by the work of his subcommittee on refugees in Vietnam.

He stood more than anything for protecting the health of the American people.

We have missed his voice in this sadly debased debate on health insurance.

Chris Matthews got it right this morning: Barack is the last brother.

Let us hope that Barack Obama can do what LBJ did to solidify John Kennedy's legacy by signing the Civil Rights Act of 1964.

Images: New York Times