Elections for Mississippi Supreme Court justice seats only come up every eight years, so when they do, the money pours in, PACs line up and partisan lines are drawn in the supposedly non-partisan sands. District 1, which contains Hinds, Madison and Rankin counties, as well as a swath of counties in the central part of the state, will elect a justice in November, and their choices are sitting Justice Jim Kitchens and Court of Appeals Judge Kenny Griffis, who is looking to make the jump to the state's highest court. Both candidates agreed to one-on-one interviews to offer insight into their lives, careers and philosophies. (Read Judge Griffis' interview here.)
Mississippi Supreme Court Justice Jim Kitchens will complete his first full eight-year term on the state's highest court this year. Before joining the court in 2008, Kitchens worked primarily as a civil and criminal trial lawyer in Copiah County, where he lives. Kitchens graduated from the University of Mississippi law school in 1967 and moved home to Crystal Springs to practice law. Kitchens ran for district attorney of Copiah, Lincoln, Walthall and Pike counties in 1971 and served in that role for a decade. Afterward, he went back into private practice, working on both sides of criminal and civil cases. He lives in Crystal Springs with his wife Mary.
What did you learn as a district attorney that influences your work now?
I learned probably that the two most important things in prosecution were, one, selectivity and, two, preparation. I learned not to be overly influenced by first impressions and (to) always look more thoroughly at a problem than what first meets the eye because so many things, especially in the criminal-justice field, are not as they appear to be at first glance. That's something I have taken with me all these years, and I try to see all sides of every problem.
I try to see what may explain what seems to be inexplicable, what seems to be something that happened that there seems to be no reason for, usually there is some reason for, so I try to delve deeply into legal questions and figure out the whys and what-fors of every problem. I'm very patient, and I've learned not to get in too much of a hurry when looking at legal problems.
What area of law did you practice when you went back into private practice?
At first I was doing general practice. I was down in Copiah County, and I did whatever came in the door, but as time went on, my practice developed more into a trial practice, and I've tried just about every kind of case there is.
One of the skills that I really honed in the district attorney's office was trial skills because a district attorney's office bore very little resemblance then to what it does now. I had no help. I finally got one assistant, but for a long time I had no assistant district attorney at all, no secretary, no investigator—it was just me. And I had four counties, and if I hadn't been young and energetic, I couldn't have done it.
So I say that to tell you that I've tried almost every case that was ever tried during that nine years. I learned how to try cases better than I had known before, and so people started coming to me and hiring me to try cases, and that's what I did most of the time I was in private practice. Eventually, I stopped doing some kinds of work (domestic, land rights cases). I just narrowed down to mostly civil and criminal trial practice.
I never stopped doing criminal work. A lot of my contemporaries wanted to get away from criminal work because (they) couldn't make much money out of it, but I enjoyed it. Criminal law has always been my favorite thing to do on either side. I was talking to a young district attorney the other day, and I said, "Look, if I lose this election, I might ask you for a job, I'd like to be an assistant DA again."
What made you want to run for the Supreme Court in 2008?
Well, I was persuaded to do it by a lot of lawyer friends and non-lawyer friends. There was a feeling that the Supreme Court was not well-balanced, that you got the same kind of result all the time. If you were on one side, you were always going to lose, and if you were on the other side, you were always going to win, so there was some truth to that. I didn't think Chief Justice James Smith was going to run again. I defeated the chief justice, and he had told me in 2000 that he was not going to run again in 2008.
What is role of the Mississippi Supreme Court, and the role a justice on that court?
The role of the Supreme Court is established in our Constitution, and it is an independent branch of government, the judiciary of which the Supreme Court is the ultimate court, and it's sort of the nerve center of the state judiciary. So our role is that of a court of last resort. That's what we do; we are the last place you can go in the judicial system of Mississippi. What we do has the potential and usually the reality of affecting every person in this state. The Legislature passes laws, and then we interpret those laws, and our interpretation of the law is binding upon everybody in the state, including the Legislature.
The individual justice's role is to make all that happen in an orderly and lawful manner. We are responsible for seeing that the rule of law prevails in Mississippi—not that we enforce laws. We don't do that, that's the executive branch's job. (We are responsible for) interpreting the laws in a consistent and usually in a predictable way, so that people can operate their businesses (and) can conduct their lives in a reasonable way, relying upon the courts of the state to keep things in due bounds, to keep things within the expected parameters that the public has a right to anticipate.
Could you discuss the role of the justice when you're writing opinions, partially concurring opinions, or dissents?
Many times what's a dissent today, next year or next decade, some justice may go back and harken back to some dissent that someone wrote years ago. The issues don't usually go away; legal issues keep recurring.
I write a fair number of dissents, and a lot of them are in criminal cases and civil cases as well, and I'm not just dissenting in order to be different or to be argumentative. I try to express myself in legally sound manners so I'm not just expressing my opinion. I find the precedent for what I'm saying in every instance, but dissents have a very significant place in our jurisprudence, and we have quite a few decisions that are closely divided: a lot of 5-4 decisions, 6-3 decisions, and we also have some that are more one-sided than that.
I guess really, I haven't done any kind of statistical analysis, but I think that you would find that most of our (Mississippi Supreme Court) decisions are unanimous. Sometimes you see 8-0s and 7-0s when somebody had to recuse for some reason.
Could you talk a little bit about being "tough on crime," a phrase you brought up at Neshoba, and discuss how you adjudicate crime fairly?
I think the term "tough on crime," that phrase as I think back over my recollection of it arose in a political context. And I'm being very historical here. The first person I ever remember having that as a campaign slogan was Ed Peters, in 1971. Ed Peters ran (for district attorney in Hinds County), and his slogan was "Let's Get Tough on Crime." Well, he got elected on that slogan, and I don't think anybody really stopped much to think about what that meant. It was a catchy slogan, and I've seen many campaigns built upon that premise. What I said at the Neshoba County Fair was almost a rebuttal of that theme, I think, because I don't like that theme.
I don't dislike being tough on people who have really committed heinous crimes and that kind of thing. It's the concept that especially a judge is going to be pre-disposed to be a certain way toward any kind of case. It's one thing for a prosecutor to say that, but it's another for a judge to say, "I'm going to be 'tough on crime.'"
In fact, I think it violates some of our judicial canons that we're supposed to adhere to. We're not supposed to say as judicial candidates how we would handle any kind of a case because you can't do that without pre-judging cases that you haven't even heard of, or cases that haven't occurred yet.
Being "tough on crime" is one thing to talk about, and it's another thing to have actually done it. I've tried death penalty cases, a lot of them on both sides. I've had to sign two death warrants, and these people were executed. It was my turn to do it. and I did it. I didn't back up from that when my turn to do it came. I have examined these death penalty cases so, so carefully because ... (of) all of the people who have been wrongfully convicted and served time, and some have been executed that shouldn't have been, and I have a horror of that happening to somebody (even) serving 15 minutes that they're not supposed to serve, let alone a long prison term or being executed.
I personally have met people who were wrongfully convicted and sentenced to death, and then were exonerated, and I just wonder how many have been executed that should have been exonerated and weren't, so I'm not very tough when it comes to that. I'm pretty soft. I am ever so afraid of casting a vote or not trying to dissuade the others on the court from casting a vote in questionable cases where somebody has been convicted and sentenced, especially to death, but any kind of sentence at all, even if you get probation, you're stigmatized for life. You have trouble getting a job; you can't vote for many crimes that you might be convicted of; there are so many consequences.
What about drug courts—do you support them?
I think that we have to be smart about the way we deal with crime, and we haven't been very smart. The war on drugs is the most dismal failure, the greatest war ever lost. I thought as a young prosecutor that we could prosecute the drug problem away, but in the early '70s, when I became a district attorney, the drug problem was in its infancy. It really hadn't progressed anywhere near where it is now, so we young prosecutors back then thought, "We can stop this, we can knock it in the head, we can incarcerate it away," and that was the dumbest thing in the world.
Of all the things that I have seen in response to the drug problem from the judicial system, the only one that's been worth anything is the drug court program. Some people have to be prosecuted and incarcerated, principally those in the commercial end of the drug business have to be put out of business and punished, and I'm all for that, but so often, even in drug-sales cases, it's one addict selling to another or, in many instances, just giving to another. You know the penalty can be just as harsh if I give you some crack than if I sell you some crack?
There's a range, and the judges can have some flexibility, but to barter, trade for something else, transfer, give it to you, deliver ... or to sell a controlled substance to another person, any of those things can generate the same penalty as any of the rest of them. Our controlled substances act, which was adopted pretty close to the time I became district attorney is patterned after the federal controlled substances act. Most of the language in it is federal language.
Do you think that they've progressed at all in terms of understanding what kids need to be in youth detention centers or not—and if you have ideas for alternatives?
I think progress has been made since when I was district attorney, when we had two training schools. We had Columbia training School and Oakley Training School, and Columbia has closed now. I think that judges are more savvy (about this) and better trained. We have a lot of good training of judges, and I think that training can only improve. There's more attention given to youth court than in the past, but it's still just dismally behind the times, and the options that we have for dealing with wayward children are not good.
We have very little in the way of mental-health treatment that's available publicly. Poverty is an underlying cause of so much juvenile misconduct and crime, and we are not dealing very well with that problem in our state. There are so many children that get caught up in the criminal-justice system, even the youth-court system, that are from severely disadvantaged homes and families, so you know, on balance, I guess we have made considerable progress, but as with almost everything in our state, we still have so far to go.
What's your take on campaign finance reform?
In both campaigns, I got people as treasurer of my campaign whom I trusted impeccably, and I told them, "Don't ever tell me where any of this money came from," and I told my sister-in-law (who ran his 2008 campaign), "You fill out the report, and I'm going to trust you to do it accurately, and I will sign it." I blindly reported my campaign finances in 2008. I have never to this day looked at my campaign finance reports or those of (other justices in that race).
Similarly in 2016, I've got my son, John, to be my campaign treasurer, and he has been told the same thing, and I've signed those reports, and I have not looked at them. I don't think about it much, but I have close friends and family members that are able to give money, and I suspect strongly that some of them have given, so those are typically people that I would in many of those instances, I would recuse myself if I had a case before me (with them involved) in the court, anyway.
So I don't look at Judge Griffis' campaign-finance reports. I don't know who gave him money. I know some entities that have endorsed him that I assume have given him money. I don't want to see it. Why? Because if I'm re-elected, a year from now, I don't want to be sitting up there on the bench in an oral argument or get a brief in my hand with some lawyer's name on it and say, "Oh, that lawyer gave to my campaign. I like that lawyer better than I do on the other side, consciously or subconsciously, so I just don't know." So what would be a better way of doing it than that? I think I know a better way to do it than that, and I have been advocating this for around 20 years, and nobody listens.
We should really have a blind system. I think we should have some legislation enabling this, or perhaps it could be done by court rules, but (it would) probably be better by legislation. To set up a system whereby, if I am running for judicial office in this state, I designate a campaign committee just as I do now, and then we have a system where, if you want to give to my campaign, you write a check to a judicial campaign-finance fund, and you designate it on your check to the Kitchens campaign—you don't mail that to my committee, and you certainly don't mail it to me.
We could set up a little office, and I think the most logical place to do this would be the state bar. They would have an account at a bank that is similar to a lawyer's trust account and so when they receive that check over there at the little office, they put that in that account, and then they immediately write a check out of that account to the Kitchens Campaign Committee, and they mail it down to Crystal Springs to my treasurer, and say, "Somebody has contributed $500 to Justice Kitchens's campaign," and our check in that amount is enclosed. And he doesn't know who it is, and the donor is prohibited by law, in my scheme of things, from ever telling me or hinting or implying in any way that he or she contributed to my campaign, and I'm prohibited by law from trying to find out who contributed to my campaign, and we ought to put some teeth in that law.
Interviews have been edited for clarity and length. Both judicial candidates will be on the ballot for the Nov. 8 election, if you live in Supreme Court District 1. For more political coverage visit jfp.ms/2016elections. Email state reporter Arielle Dreher at [email protected].