Civil Disobedience - the Role of Judges - Ninth Circuit Affirms Mandatory Sentence

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CIVIL DISOBEDIENCE--THE ROLE OF JUDGES--NINTH CIRCUIT AFFIRMS MANDATORY SENTENCE.--United States v. Hungerford, 465 F.3d 1113 (9th Cir. 2006).

Justice and freedom are not words and slogans, but ways of life. It is their essence to exist only where we toil and sweat and live and die each day to practice them. So often we cannot find America's commitment to these values: we cannot find it in our streets and in our schools or in our projects and in our prisons. It is this final locus, the homes we construct for our criminals--these enclaves of despair and social clubs for our poorest--that awaits those subjected to our draconian and irrational sentencing policies. These policies, in all of their ugly inevitability, were yet again faithfully followed by the Ninth Circuit in United States v. Hungerford. (1) By dutifully affirming a lengthy and inappropriate prison sentence, 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. The court, like hundreds of others each year, missed an opportunity to play a role in ensuring America's substantive commitment to its formal values in an area likely to be ignored by popular government and unlikely to engender a spontaneous, organic, and effective social movement.

Marion Hungerford suffers from severe Borderline Personality Disorder. (2) She has a "very low capacity to assess reality" and a "low level of intellectual functioning." (3) The examining psychiatrist called interviewing Hungerford "one of the most arduous, painful experiences in my life" and determined that Hungerford had "one of the most severe psychological disorders." (4) Her deteriorating mental condition led her husband, with whom she had four children, to leave her. Alone and poor and unwanted by any employer, she moved in with Dana Canfield, upon whom she became dependent. Vulnerable, "easily victimized," (5) and desperate for rent money, she engaged in a string of small-scale robberies with her new companion. (6) Marion Hungerford lived the first fifty years of her life without a criminal incident. She will spend the next 159 years in federal prison.

Between May and July 2002, Canfield carried a gun into seven Montana businesses, stealing a total of less than $10,000. (7) Hungerford was involved in the planning of the robberies and shared in the spoils, but she remained either at home, in the car, or elsewhere while Canfield carried them out. Hungerford never touched a gun. They were both prosecuted for the robberies, and Canfield pled guilty, agreeing to spend 32 years in prison. (8) Hungerford pled not guilty, believing that she had not done anything wrong. (9) After a jury trial, she was convicted of conspiracy, seven counts of robbery, and seven counts of using a firearm in relation to a crime of violence. (10) The district court sentenced Hungerford to 4.75 years for conspiracy and robbery, 5 years for the first firearm charge, and 25 years for each of the next six firearm charges (to run consecutively, as required by statute), for a total of 159.75 years. (11) The district court understood itself to be bound by 18 U.S.C. [section] 924(c), which calls for judges to impose mandatory minimum sentences for certain firearm offenses. (12)

Hungerford could never understand why she was found guilty. After conviction, at sentencing, she still could not believe what was happening to her: "I have not done anything illegal. I did not go about with any gun.... I didn't take any money.... So please don't do whatever you're going to do to me for what you think I did, because I didn't do it." (13) Hungerford could not understand the charges against her since she had neither touched a gun nor joined Canfield in the actual perpetration of the robberies. She insisted again: "[M]y crime isn't hurting anybody, because I don't do that. …

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