Winds of Change - NYTimes.com Back in 1991, the Supreme Court upheld a Michigan man's prison sentence of life without the possibility of parole for possessing more than 1.5 pounds of cocaine. The sentence did not represent the third strike of a three-strikes law: the prisoner, Ronald A. Harmelin, 45, had no previous criminal record. The police found the drugs when they stopped him for running a red light. Since simple possession was enough to trigger Michigan's mandatory life-without-parole sentence, the prosecution didn't even have to bother trying to prove that Mr. Harmelin intended to sell the cocaine. In upholding the sentence, the court rejected the argument that it was so disproportionate to the crime as to violate the Eighth Amendment's prohibition on cruel and unusual punishment. The three justices who then occupied the middle of the court (yes, there was a multi-justice middle back then) - Anthony M. Kennedy, Sandra Day O'Connor and David H. Souter - voted with the 5-to-4 majority. In "Five Chiefs," the very interesting (and underappreciated) Supreme Court memoir he published in retirement, Justice John Paul Stevens reflected on the Harmelin decision, from which he dissented. Those three justices were all relatively new to the court at the time, he wrote. The justices they had replaced - Lewis F. Powell Jr., Potter Stewart and William J. Brennan Jr. - were all long-serving veterans who Justice Stevens speculated would have voted to invalidate the sentence. It may be, he added, that "the views of individual justices become more civilized after 20 years of service on the court." That was an intriguing thought, and when I had a chance last year to interview Justice Stevens, I asked him to say more. He said he still thought about the case "a lot." He was "quite sure" that Justice Kennedy would come to the opposite conclusion today, and that the other two probably would as well if they were still on the court. Nonetheless, he added, "the precedent is still there, and it's really a very unfortunate case." I've been thinking a lot myself about the Harmelin decision in light of recent events. First there was the announcement last month by Attorney General Eric H. Holder Jr. that the Justice Department was revising its prosecution strategy in order to avoid the impact of mandatory minimum sentences for low-level drug offenses. That was followed by the announcement that the federal government wouldn't sue to block state laws that have legalized marijuana for medical or recreational use. Either policy shift would have been greeted with amazement not too many years ago, but neither provoked anything approaching a fuss. The Harmelin decision in 1991 and the sentencing scheme it upheld, enacted by the Michigan Legislature in 1978, bracketed the peak years of the "war on drugs," a public-policy obsession that created the massive incarceration problem that is overwhelming state budgets today. As the wave of public hysteria slowly receded, common sense began to return, beginning in the states and moving fitfully toward Washington. After some 200 people had been sent away for life, the Michigan Legislature repealed the mandatory sentencing law in 1998. The law by then had become the object of widespread public revulsion. Prosecutors joined the campaign for repeal, and former Governor William G. Milliken, a Republican, declared that signing the law had been "the worst mistake of my career." A decade ago, the Supreme Court issued two decisions rejecting Eighth Amendment challenges to California's three-strikes law, which had resulted in thousands of 25-years-to-life sentences for repeat offenders convicted of such crimes as - in the cases the court decided - shoplifting videotapes and golf clubs. Last November, California voters overwhelmingly repudiated the 1994 law's excesses. Proposition 36, which made major modifications to the law, including abolishing life sentences for nonviolent offenders, has led to the release of more than 1,000 inmates in the past nine months. Because of changes in prosecution and incarceration policies around the country, the prison population in the United States dropped last year for the third straight year, representing the biggest decline in the nation's history. Something is clearly in the wind. I've also been thinking about the New York City mayoral primary. It's impossible to read the election outcome as other than, at least in part, a public repudiation of the Bloomberg administration's law-enforcement policies, particularly the administration's embrace of stop-and-frisk. Mayor Michael R. Bloomberg not only denounced Federal District Judge Shira A. Scheindlin's ruling last month that stop-and-frisk as the police were using it was unconstitutional, but he also attacked the judge herself as an "ideologically driven" judicial activist. Unlike the days when politicians could score easy points by attacking courts as soft on crime, however, the mayor got no traction. Bill de Blasio, the Democratic primary winner, ran as the non-Bloomberg, making opposition to stop-and-frisk a centerpiece of his campaign. An exit poll indicated that black New Yorkers and white New Yorkers were equally supportive of Mr. de Blasio, who also received nearly identical support across the income spectrum - a fascinating development. People so often separated by race and class, seemed to unite around the conclusion that enough was enough. The question is what this shift in public attitudes might mean for the courts, the Supreme Court in particular. The Supreme Court operates inside the mainstream culture - which is, after all, where the justices live - influenced not by the "weather of the day" but by the "climate of the age," as Justice Ruth Bader Ginsburg likes to say, quoting the great constitutional scholar Paul Freund. So does it matter, for example, that recent polls have found a decided movement in public opinion toward protecting privacy and civil liberties and away from the government's anti-terrorism priorities? In cases concerning GPS searches and drug-sniffing police dogs, the justices have been expressing increasing skepticism about law enforcement tactics that evade the traditional warrant requirement. During the new term, the court is likely to take up a case on warrantless searches of cellphones, a case that could gauge the justices" readiness to recalibrate the balance between privacy and security. At the American Bar Association's annual meeting in San Francisco last month, Justice Kennedy spoke about sentencing policy. He has been critical in the past of long prison sentences, once describing as "sick" the leading role played by the California prison guards" union in the passage of the state's three-strikes law. So his critique this time of mandatory minimum sentences, which he called "unwise and unjust" in "too many cases," wasn't really new, and didn't make much news. But his remarks seemed to me to have a special bite. I wondered whether he might have had his 22-year-old vote in the Harmelin case in mind when he said: "The legislative branch has the obligation to determine whether a policy is wise. It is a grave mistake to retain a policy just because a court finds it constitutional. Courts may conclude the legislature is permitted to choose long sentences, but that does not mean long sentences are wise or just. And he added: "A court decision does not excuse the political branches or the public from the responsibility for unjust laws." There is more than one way to read these words, of course. Perhaps Justice Kennedy meant to declare a kind of moral immunity for the courts: don't blame us for problems the political branches created and the political branches should fix. But that would seem an odd message from a justice whose opinion barely six weeks earlier had declared the Defense of Marriage Act unconstitutional, in part because of the "injury and indignity" the federal law imposed on same-sex couples whose marriages their state chose to recognize. So I'd like to think Justice Kennedy's message wasn't shedding judicial responsibility but rather: don't count on us to lead you, because courts aren't set up to be leaders. But don't think we aren't watching, and we'll step in if we have to. In his reflection on the Harmelin decision, Justice Stevens offered the tantalizing idea that longevity on the bench makes justices "more civilized." Can that prediction apply not only to individual members of the court, but also to the court as a whole? As the Roberts court begins year nine, that may be a distant hope, but one worth clinging to.