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american lawyer media news service harry pregerson: At 79, the judge is the oldest active member of the 9th Circuit. San francisco-Judge Harry Pregerson, the oldest active member of the 9th U.S. Circuit Court of Appeals and a stalwart of its liberal wing, is ignoring U.S. Supreme Court precedent in some California “three strikes” cases. In several recent appeals of sentences for nonviolent third offenses, Pregerson has dissented from unpublished affirmances. Because judges are not normally free to ignore Supreme Court rulings, Pregerson’s stare-down with stare decisis is remarkable. “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 recently. “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 9th Circuit. They had been held up until the Supreme Court decided two cases that tested the constitutionality of California’s law. Lockyer v. Andrade, No. 03 C.D.O.S. 1970, and Ewing v. California, No. 03 C.D.O.S. 1959. After three-strikes was upheld on March 5, the cases were sent to a three-judge screening panel, which disposes of appeals that seem to be controlled by precedent. The cases are presented to the panel by staff attorneys. If one judge requests it, a case is sent to a regular panel. Pregerson sat recently on a screening panel with judges Stephen Reinhardt and Susan Graber. “Why doesn’t he recuse himself?” asked Stephen Gillers, a professor at New York University School of Law, an expert in legal ethics. “That’s the American system. It’s very hierarchical, and the superior court has to be followed.” One appeal involved a 25-years-to-life sentence for stealing a $130 television from a Wal-Mart. Another involved a third-strike conviction for passing bad checks. In 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 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. “Judge Pregerson was openly defiant of the Supreme Court, so he’s got a vision of precedent that is slightly different” from most, said Vikram Amar, a professor at Hastings College of the Law. 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.

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