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Ninth Circuit U.S. Court of Appeals Judge Harry Pregerson, the oldest active member of the court and a stalwart of the court’s liberal wing, is defying recent Supreme Court precedent in some of California’s Three Strikes cases. In several recent appeals of Three Strikes sentences for non-violent third offenses, Pregerson has dissented from unpublished affirmances. Since judges are not normally free to ignore Supreme Court rulings, Pregerson’s stare-down with stare decisis is remarkable. “In good conscience, I cannot vote to go along with the sentence imposed in this case,” Pregerson wrote in one typical dissent. “I think the Three Strikes law should only be applied to a defendant whose criminal history, including his last offense, demonstrates that he needs to be taken off the streets because he poses a realistic threat to the health and safety of the community,” Pregerson explained Tuesday. “There are cases where a long term in prison is justified and cases where it is not.” Numerous Three Strikes appeals are now being disposed of by the Ninth Circuit. They had been held up while the Supreme Court decided Lockyer v. Andrade, 03 C.D.O.S. 1970, and Ewing v. California, 03 C.D.O.S. 1959, which tested the constitutionality of California’s Three Strikes law. After Three Strikes was upheld, the cases were sent to a three-judge screening panel, which disposes of appeals that seem to be clearly controlled by precedent. The cases are presented to the panel by staff attorneys, but if one judge requests it, a case will be sent to a regular panel. Pregerson sat this month on a screening panel with Judges Stephen Reinhardt and Susan Graber. Reinhardt is also making his distaste for the sentences known, though he is voting to uphold them. Pregerson isn’t. “Why doesn’t he recuse himself?” asked New York University Law School professor Stephen Gillers, an expert in legal ethics. “That’s the American system. It’s very hierarchical, and the superior court has to be followed. “He should recuse himself and write his angry dissent in the recusal so he gets his voice heard. And it’s an important voice,” Gillers said. One appeal involved a 25-years-to-life sentence for stealing a $130 television from a Lake Elsinore Wal-Mart. Another involved a third-strike conviction for passing bad checks. In yet another, the defendant was convicted of receiving a stolen .22-caliber handgun. It is not the first time the 79-year-old judge’s views on precedent have come under scrutiny. In 1992, he was the key figure in the Ninth Circuit’s repeated refusals to allow the execution of Robert Alton Harris to proceed. Eventually, the Supreme Court told the Ninth Circuit to stop issuing orders in the case. “Judge Pregerson was openly defiant of the Supreme Court, so he’s got a vision of precedent that is slightly different” from most, said Hastings College of the Law professor Vikram Amar. And during his 1979 confirmation hearing after being nominated by President Jimmy Carter, Pregerson said, “If I had to follow my conscience or the law, I would follow my conscience,” according to the Los Angeles Times. Amar said some may view Pregerson’s stance as intended to create friction in the system to make sure the issue isn’t forgotten. But, Amar said, “Most people would say that’s outweighed by the need for stability in the system.” Gillers agreed with the latter. “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,” he said. In 1999, Justice J. Anthony Kline of California’s First District Court of Appeal got in trouble for a similar dissent. The Committee on Judicial Performance cleared Kline after an investigation, but his case was slightly different — Kline acknowledged what he was doing and made an argument for why he was doing so. The attorney general’s office, which represents the state in all Three Strikes appeals, did not comment extensively on Pregerson’s dissents. “We have seen some cases where those sentiments have been expressed,” said AG spokeswoman Hallye Jordan. “We think the Supreme Court ruling on the California Three Strikes law did address his concerns.” Reinhardt is similarly concerned. His concurrences make clear he agrees with the results “only under compulsion,” and that the sentences are “unconscionable and unconstitutional.” The Los Angeles Times reported Tuesday that prosecutors across the state are seeking fewer Three Strikes prosecutions. Los Angeles District Attorney Stephen Cooley has eliminated the prosecution of non-violent Three Strikes prosecutions, and San Francisco DA Terence Hallinan is similarly selective. Pregerson is described by many as a compassionate liberal. He has been honored for his extensive work with veterans and the homeless. Pregerson said former Supreme Court Chief Justice Earl Warren would always ask one question. “Very simple — ‘Is it fair?’” Pregerson said. “That’s it. Our system has to be grounded in fairness.”

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