Yesterday I asked people who support jury nullification what they would do if they perceived a conflict between the rule of law and the dictates of their own conscience. I asked: if the evidence showed beyond a reasonable doubt that the defendant was guilty of a breaking a valid law, but convicting the defendant appeared to be an unjust result, would you:
a) follow the law and convict;
b) follow your conscience and acquit; or
c) ask to get off the jury?
I believe the correct answer is either a or c. Jurors should follow the law, and if the situation is so extreme that following the law would keep them up at night, they should get off the jury (absent circumstances so unusual that the entire fabric of society has broken down).
But several of you picked choice b. You said you’d stay on the jury and acquit, despite your oath to follow the judge’s instructions. You said you would always follow your conscience over the law.
Here’s my question for you:
Do you think that’s how federal judges should behave?
Because some of them do — and if you believe that conscience always trumps the rule of law, you have no standing to complain about it.
Let me give you a concrete example. Let’s say California passes an initiative to eliminate affirmative action. A federal judge gets the case, and he believes the law is clear: he must uphold the law. But he is a tremendous supporter of affirmative action, and believes firmly, deep down in his soul, that the law is terribly unjust. If he upholds the law, it will weigh on his conscience for the rest of his life.
a) follow the law and uphold the initiative;
b) follow his conscience and strike it down; or
c) get off the case, either by recusing or quitting?
Clearly, as with the juror question, the correct answer is a or c. Judges have no business ignoring the law in favor of their own personal views, however sincerely held. Really, the judge should simply apply the law — but if it were a rare case where it would destroy his conscience to do so, he should recuse himself, or simply quit.
But if you said that, as a juror, you would always follow your conscience over the law, then you presumably would insist that a judge do the same — even if it meant overturning the will of the people as expressed in the initiative.
If that’s how you feel, let me introduce you to your new judicial hero: liberal federal appeals court judge Harry Pregerson.
Harry Pregerson is the kind of judge who votes his conscience, rather than following the law. He was forthright about this in his confirmation hearings. He told Senators: “If I had to follow my conscience or the law, I would follow my conscience.” (From a law.com article that I will refer to again.)
His conscience has led him to take actions in utter contravention of direct Supreme Court precedent. For example, it came to light in 2003 that Pregerson was refusing to follow Supreme Court precedent on the application of the Three Strikes law to petty thieves, because his conscience forbade it. Here is language from a typical opinion, courtesy of the Curmudgeonly Clerk:
REINHARDT, Circuit Judge, specially concurring.
REINHARDT, Circuit Judge.
I concur only under compulsion of the Supreme Court decision in Andrade. I believe the sentence is both unconscionable and unconstitutional.
PREGERSON, Circuit Judge, writing separately, dissenting in part.
PREGERSON, Circuit Judge.
In good conscience, I can’t vote to go along with the sentence imposed in this case.
When Stephen Reinhardt can’t find a legally defensible way around directly controlling Supreme Court precedent, it doesn’t exist. Yet Pregerson simply refused to follow the precedent, because it conflicted with his conscience.
This is not an isolated example. Pregerson has repeatedly flouted Supreme Court precedent in favor of his personal views. He did so in a death penalty case in 1992. From the law.com article:
In 1992, he was the key figure in the 9th Circuit’s repeated refusals to allow the execution of Robert Alton Harris to proceed. Eventually, the Supreme Court told the 9th Circuit to stop issuing orders in the case.
That was an unprecedented order, caused by Judge Pregerson’s unprecedented defiance of the rule of law.
Judge Pregerson was also in the majority in the ridiculous decision to delay the 2003 California recall election — a decision unanimously overturned by the Ninth Circuit sitting en banc.
Judge Pregerson has repeatedly shown utter disdain for the will of the people as expressed through laws passed by their duly elected representatives — or, as in the case of the Three Strikes law, by the people themselves through initiative.
Addressing Judge Pregerson’s dissents in the Three Strikes cases, legal ethics expert Stephen Gillers says (from the law.com article):
It’s not good for the justice system for a judge to disobey the Supreme Court. Even though people may agree with him, we risk legal anarchy if judges refuse to follow Supreme Court precedent.
In his own post, the Curmudgeonly Clerk also explains why judges must follow the law:
I do not believe that there is any ambiguity about what is required of judges when their conscience counsels other than adherence to obviously binding precedent: they must disregard their personal preferences or contrary interpretations and hew to precedent. If we are a nation of laws and not of men, then inferior tribunals must obey superior ones. Contrary practices are foreign to the rule of law. This is not to say that judges must do so with a glad heart. Judge Reinhardt’s special concurrences are hardly unique. Many judges have enforced precedent all the while noting that they might decide otherwise if writing on a blank slate. Indeed, there are opinions by lower courts that openly call upon superior ones to overrule precedent but abiding by the precedent in question nonetheless. In such ways, inferior courts may call upon higher ones to abrogate unjust and ill-conceived decisions.
But Judge Pregerson’s dissents are beyond the bounds of acceptable judicial conduct. A judge’s conscience does not enjoy constitutional status. Instead, judges take an oath to uphold the Constitution of the United States. This oath entails adherence to the decisions of our Supreme Court. A judiciary in which individual judges are free to do otherwise is not an organized, multi-tiered institution so much as a conglomerate of co-equal jurists who may do as they please whenever they are of a mind to do so. Taken to its logical end, horizontal precedent would cease to have meaning.
Similarly, jurors take an oath to follow the law as set forth in the judge’s instructions. They should abide by that oath. If they simply can’t do so, they should get off the case.
If you place your conscience above the rule of law as a juror, you have no grounds for complaint when a federal judge like Harry Pregerson does so as a judge. Sure, maybe the people of California chose to vote out corrupt governor Gray Davis on their own timetable. They want their Three Strikes law enforced as they passed it — and if they don’t, they can change it themselves. They want to see duly convicted murderers like Robert Alton Harris receive justice.
But Harry Pregerson thinks he knows better than the People of the State of California. And if you believe in Rule by the Decisionmaker’s Conscience, you have no business complaining about it. Indeed, he should be your hero.
Harry Pregerson is not my hero. He should not be yours.
There is a place for the rule of law in society. There is a reason we have it. Judge Pregerson should not disregard it. And neither should jurors.