Civil Rights Courts Crime and Punishment

I’ve Got a Robe and I’m Not Afraid To Use It! – UPDATED


This month’s Harvard Law Review
has an article that calls for judges to engage in civil disobedience when the circumstances are sufficiently right for it—meaning when the demands of the law are sufficiently wrong.

Framing it in those terms is an interesting concept. It calls for judges to overturn the furniture, so to speak, if the cause is righteous. The HLR is specifically aiming at the draconian federal sentencing minimums that a weak-kneed Congress has been too cowardly to revise.

As their case in point, the Harvard folks’ refer to a 2006 ruling by the 9th Circuit Court of Appeals called United States v. Hungerford.
In this case, the court was asked to review a mandatory sentence imposed on a deeply screwed-up and pathetic Montana woman named Marion Hungerford who passively participated in a string of low-level robberies with her creep boyfriend. (She was never actually present at the robberies. But she knew about them, engaged to some degree in discussing and/or planning them, and benefited from the stolen money.) The creep boyfriend made a deal with prosecutors and got 32 years. Hungerford, who had no previous criminal record, took the case to trial, lost and got……159 years.

The 9th circuit was asked to decide whether Hungerford’s obviously disproportionate sentence should remain in place.
Since there is nothing in the law indicating that it shouldn’t (and plenty of precedent indicating that it should), the court went ahead and upheld the sentence—although most everyone involved agreed that, while legally sound, morally the decision sucked.

The sentence was “immensely cruel, if not barbaric”
wrote 9th Circuit Judge Stephen Reinhardt, and again urged Congress to revise the mandatory minimums.

The HLR says the court has a moral obligation to do more-
–that if lawmakers won’t get a grip and do the right thing, judges can and should take the lead.

“By dutifully affirming a lengthy and inappropriate prison sentence
,” writes the SLR, “the Hungerford judges passed up a chance to engage in a powerful, symbolic act of civil disobedience —the kind of direct public repudiation of unwise and unjust laws that has been central to social change throughout our history.”

In California, the idea is particularly attractive since we have a pack of grossly overblown mandatory minimums that have crammed our prisons to double their capacity. Yet our spineless legislature and governor were so afraid being called soft on crime that, instead of the sentencing reform and prisoner rehabilitation programs promised, they passed AB900—a bill that will spend $6.1 billion building more prisons.

(In fact, if existing trends continue, says the San Francisco Chronicle,
California will soon become the first big state in America to spend more on prisons than on colleges. Wooo-hooo! How cool are we?!!!!)

So bring on the “radical” judges. Hey, whatever works.

UPDATE & NOTE: Hat tip to Doug Berman’s wonderful blog, Sentencing, Law and Policy, for pointing to the HLR piece to begin with, and also to commenter Richard L. Cicero, who reminds me I should tell you that this is a “casenote,” which means it’s an article on the significance of a single case written by a law student.

The whole article/casenote
is worth reading, but here’s a bit more of the heart of the HLR argument:

Federal judges should realize that they all have the power to craft a more just, humane, and cost-effective approach to criminal punishment. In fact, federal judges are uniquely well-suited to spark a movement against draconian sentencing by telling a credible, knowledgeable, and powerful story. To ignite and participate in this transformation, judges must step out from their traditionally prescribed roles.

Civil disobedience by federal judges is both justified and required when two conditions are met: first, when an essential contradiction exists between stated ideals and ostensible justifications on the one hand and how people are actually living and actually being treated on the other; and second, when such a contradiction is not likely to be exposed and remedied as effectively by social movements or other means absent judicial intervention. The ways in which America treats its criminal defendants and its prisoners satisfy both of these conditions, and the Ninth Circuit should have refused to apply the statute. It should have reversed Marion Hungerford’s sentence.


So there you have it.

Your Honors….Time to take it to the streets.


  • If a judge will not uphold our laws, then he has no business being a judge and should resign. I’m sick of activist judges making up laws, which is the duty of the legislatures, and I would be double sick of them engaging in civil disobedience. Look at this for what it really is–anarchy. Next time, the activist judges may do things that you don’t like.

  • I was goin g to say something like Woody but if he’s for it I’ll change my mind.

    Serious though, I looked over the article and two things should be understood:

    1. It’s not an article its a “Case Note”

    2. Case Notes are discussions of recent decisions thought to be of interest to the legal community. They are written by students (usually 2Ls – second year). At Harvard there are two ways to get to write such notes. a) get high grades in 1L and be appointed to the LAW REVIEW board. b) “Write” your way on by submitting a piece and seeing it accepted. This can happen for 3Ls as well.

    In either case you are getting student opinion.

  • rlc, thanks for that explanation on case notes. If you agree with me, then I might possibly change my mind. I just realized that this ruling came from the wackiest court in the land, the Ninth Circuit Court of Appeals in San Francisco. If they weren’t activist in this case, no court would be.

    MNE, I don’t remember a lot about the Nuremburg film. Was your point that the judges did what it took to get the “right” judgement?

  • Richard, yeah, yeah, yeah, I know it’s a casenote. And you’re absolutely right; I should have stated it as such. My bad.

    At the last minute, I changed the word from “casenote” to “article” because the hour was late, and I thought the term would confuse people. (And I was too tired to explain the thing.)

    Thanks for laying it out clearly. I just added it to the post in an update.

  • Celeste, your integrity is intact with me. It’s nice to have the update, and RLoC’s comment was very helpful in getting a grip on it before your update got posted. But, I have yet to find an instance where any ‘gaps’ here have led me astray. When your site begins to include footnotes and endnotes I’m going to think I’m in a law book rather than your blog.

  • Michael, thanks for the comment. I admit I haven’t see the film in a long time so can only guess at your point—likely in accurately. Would love it if you’d explain what you meant.

  • Listener, thanks for defending my integrity (even though reading your post while slurping the day’s second cup of coffee caused laughing/spitting problems).

  • Judgement at Nuremburg
    The film depicts the trial of certain judges who executed Nazi law.

    A key thread in the film’s plot involves a “race defilement” trial based on the real life Katzenberger Trial, an elderly Jewish man was cited for an improper relationship with an “Aryan” woman, and put to death in 1942.

    Oswald Rothaug, a judge known for his severity and a rabid Nazi, arranged for the case to be brought to him. He recognized the publicity such a trial would generate and saw it as a way to display his Nazi credentials and further his career.

    The law at the time did not call for the death sentence for breaking the Rassenschutzgesetz(Racial Protection Law). The normal sentence would have been a term of imprisonment of several years. However, the Volkschädlingsgesetz, a wartime law, allowed capital punishment if one made use of wartime regulations such as the black-out to commit a crime. Rothaug applied this law to pass the death sentence on Katzenberger

  • To be fair casenotes are often cited in judicial opinions and, to the best of my knowledge, law journals are the only professional journals edited by students.

    And I’ll forgive you if you don’t follow “A Uniform System of citation” from Harvard Law and published by HLR.

  • The rest of the story

    Defendant(Hungerford) went into the casino ahead of Canfield(boy-friend) and called to tell him how many people were inside and how many tills were operating. The jury found Defendant guilty of the Jackpot Casino robbery, a conviction that she does not challenge on appeal.

    Canfield described similar involvement by Defendant in both the Alpine Casino and Cenex AmPride robberies. The two drove together to the Alpine Casino; Defendant entered, counted the number of employees who were working there, and returned to the car to report the information to Canfield. He then went inside, robbed the casino at gunpoint, returned to the car where Defendant was waiting, and gave her the money. Similarly, at the Cenex AmPride convenience store, Defendant went into the store first and signaled to Canfield that it was safe to proceed with the robbery. The jury convicted Defendant of both of those robberies, and she does not challenge those convictions here.

    After the Cenex AmPride robbery, Detective Ewalt telephoned Defendant to ask questions about the Jackpot Casino robbery. Defendant and Canfield discussed the false statement that Defendant planned to give to the detective to impede his investigation. Further, they agreed that Defendant should establish an alibi during the next robbery. At the Jackpot Casino and Cenex AmPride robberies, she had been seen by employees when she entered the establishments just before the robber came in. Consequently, Defendant planned to remain at the home of the couple’s landlord while Canfield committed the next robbery.

    According to Canfield, Defendant did not help him “case out” the next location; she left “most . . . everything” up to him about where to go and what to do. Canfield robbed Magoo’s at gunpoint on June 13, 2002. When he returned home afterward, Defendant was there and he gave her the money that he had stolen.

    After they had a chance meeting with Detective Ewalt, Defendant and Canfield decided that they ought to end the string of armed robberies. They mapped out a strategy to “leave a trail out of town” and then stop. The plan was to rob an establishment in Butte, Montana, then go to Missoula and rob another place there “using the same mask and MO” as had been used in the earlier robberies. They traveled to Butte, rented a hotel room, and together they scouted possible targets. They selected an establishment called Gramma’s. When Canfield went there on July 27, 2002, he decided against robbing it and instead chose to rob Joker’s Wild. Defendant remained in the hotel during this armed robbery. Afterward, Canfield gave Defendant the proceeds, and both of them together destroyed the checks, which they had obtained along with the cash. The police arrested Canfield that night at the hotel; Defendant was arrested later. Before being arrested, Defendant contacted an acquaintance and coaxed her to make a false statement to the Butte police concerning the identity of the Joker’s Wild robber, to throw them off track.

  • Pokey, nobody’s pretending Hungerford’s innocent. But do we really want laws that leave jurists no choice but to give the smalltime robber’s emotionally disturbed girlfriend/semi-accomplice what amounts to a double-life sentence—on our dime? (A sentence that, just to remind everybody, is five times what the robber himself got.)

  • In this case it appeared that she was more culpable than her boy friend. She acted as the crime boss; planning the crime and collecting the money. This is usually deemed a far worse crime that than committing the act — i.e. Manson never killed anyone.

    However, your overall point about mandatory sentencing is well taken; the sentence handed out was way overkill.

    The main claims made by advocates of mandatory sentencing are that it prevents crime, it provides consistency in sentencing, and is a democratic response to widespread public concern about crime.

    When judges have a discretion as to the sentence they impose there is the possibility of unequal of offenders who have done equal wrong. Rather than eliminating discretion it moves it to prosecutors and police.

    So, perhaps justice is better served by judges who are publicly accountable for their decisions are in a better position to ensure that justice is served through a greater understanding of the context of the offence.

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