the antigone dilemma: when the paths of law and morality diverge

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THE ANTIGONE DILEMMA: WHEN THE PATHS OF LAW AND MORALITY DIVERGE

J. C. Oleson*

Introduction.......................................................................................... 669 A. Received Wisdom: Law’s Fascination with Legal Positivism.... 670

Interlude I: Evil Laws in Nazi Germany .......................................... 672 Interlude II: Under Cover: Adjudicating the Fugitive Slave Acts .... 674 Interlude III: We Aren’t Out of the Woods Yet—Mandatory

Minimum Sentencing in the Federal Courts................. 676 A. The Psychology of Blindness...................................................... 684 B. Serving Two Masters: When Justice is Not the Law .................. 690 C. Adjudication as a Moral Action .................................................. 691 D. A Choice of Nightmares: The Available Options ....................... 695

Conclusion............................................................................................ 702

INTRODUCTION

Since the door leading into the Law stands open as usual and the door-keeper steps to one side, the man bends down to peer through the entrance. When the door-keeper sees that, he laughs and says: “If you are so strongly tempted, try to get in without my permission. But note that I am powerful. And I am only the lowest door-keeper. From hall to hall, keepers stand at every door, one more powerful than the other. . . .”1

The modern fascination with positivist jurisprudence has arguably

protected the law from the taint of populist prejudice. Following the

* Chief Counsel, Criminal Law Policy Staff, Administrative Office of the United States Courts; J.D., School of Law, University of California, Berkeley (Boalt Hall), 2001; Ph.D., University of Cambridge, 1998; M. Phil., University of Cambridge, 1995; B.A., Saint Mary’s College of California, 1994. I would like to thank Boalt’s Christopher Kutz, John Steele, and my classmate Janelle Wolf for initially helping me to explore these ideas, and to thank Emery G. Lee, III and Karen Redmond for their insightful comments on an earlier draft. The staff of the Cardozo Law Review have been exceptionally helpful, and I would like to thank Carrie Maylor, Joseph Mueller, and Carissa Alden in particular. The views contained in this Article are entirely the author’s own, and do not necessarily reflect the position of the Administrative Office or the federal judiciary. 1 FRANZ KAFKA, THE TRIAL 234 (Everyman’s Library ed. 1992).


670 CARDOZO LAW REVIEW [Vol. 29:2

principles of law instead of catering to the appetites of the crowd, judges have sometimes taken unpopular-but-visionary civil rights stands: upholding the right of communist association in the face of America’s “red scare,”2 striking down segregation in a Jim Crow South,3 and banning prayer in public schools.4 These holdings are the product of courts that followed the dictates of law, not opinion. Yet judicial adherence to law freed from the tethers of prevailing morality also lacks a powerful internal check against injustice. In extreme cases, judicial decision-makers may be confronted with an Antigone-like choice between command and conscience.5 Nazi judges, reasoning that “law is law,” enforced palpably evil rules. Well-meaning judges in South Africa legitimated the very legal system that sustained Apartheid.6 Similarly, in the United States, antebellum judges scrupulously set aside their personal abolitionist views and enforced the Fugitive Slave Acts of 1793 and 1850—laws they fervently believed to be wrong. Even now, under mandatory minimum sentencing laws, federal judges are compelled to administer laws with grossly unjust consequences. Why in the world would educated jurists do such a thing?

A. Received Wisdom: Law’s Fascination with Legal Positivism

For . . . law and the rigor of it, we are not responsible. Our vowed responsibility is in this: That however pitilessly that law may

2 Yates v. United States, 354 U.S. 298 (1957). 3 Brown v. Bd. of Educ., 347 U.S. 483 (1954). 4 School Dist. v. Schempp, 374 U.S. 203 (1963). 5 See SOPHOCLES, ANTIGONE (Mark Griffith ed. & trans., Cambridge University Press 1999) (441 BCE) (telling the tragic tale of Antigone, who was prohibited under penalty of death from burying her traitorous brother, but felt compelled to do so by morality). It should be noted, as well, that including morality in the calculus of adjudication is, itself, no absolute check against evil. See Jack B. Weinstein, Fifty Years of Reflection: Brown v. Board of Education and Its

Universal Implications: Every Day is a Good Day for a Judge to Lay Down His Professional Life

for Justice, 32 FORDHAM URB. L.J. 131, 131 (2004) (“When judges can cut themselves free of the law’s dictates, it is not a foregone conclusion that all will see fairness the same way. Some German judges were Nazis; some post-Brown judges were segregationists.”). 6 See, e.g., DAVID DYZENHAUS, JUDGING THE JUDGES, JUDGING OURSELVES: TRUTH, RECONCILIATION AND THE APARTHEID LEGAL ORDER (1998) (describing the tension between law and justice vis-à-vis South Africa’s Truth and Reconciliation Commission); Raymond Wacks, Judges and Injustice, 101 S. AFR. L.J. 266, 282 (1984) (urging good South African judges to resign because they legitimated a highly oppressive legal order); John Dugard, Should Judges

Resign? A Reply to Professor Wacks, 101 S. AFR. L.J. 286 (1984) (arguing that the presence of South African judges on the bench outweighed the social and moral value of their resignations). The question of whether or not good judges should vacate the bench anticipates Cover’s four alternatives. See infra note 172 and associated text.


2007] THE ANTIGONE DILEMMA 671

operate, we nevertheless adhere to it and administer it.7

Building upon the early foundations of Bentham and Austin,

philosopher H.L.A. Hart has written the single most influential articulation of modern legal positivism.8 One crucial aspect of Hart’s positivism is its insistence upon the separation thesis—a strict cleft that divides the spheres of legality and morality.9 The clean severance of morality from law is one of the key differences between positivism and natural law (which, in some formulations, asserts that no rule can count as a law unless it is at least morally permissible, giving rise to St. Augustine’s claim that “an unjust law is no law at all”10). Hart disagreed with St. Augustine, arguing that describing something as “unjust law” is to use the distinction, not to refute it.11 He underscored his point by quoting Austin:

The most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God . . . the court of justice will demonstrate the inconclusiveness of my reasoning by hanging me up . . . . 12

Hart’s positivism, describing a framework of laws that stands apart from morality, has a great appeal to U.S. lawyers. For the most part, American legal thinking has adhered closely to the positivism articulated by Bentham, Austin, and Hart.13 Indeed, many American lawyers are instinctive positivists who have inherited a legacy of skepticism from their realist predecessors.14 We spurn natural law as

7 HERMAN MELVILLE, BILLY BUDD AND OTHER TALES 68 (Signet Classics 1998) (1891). 8 H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1994) (1961). 9 H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593

(1957). 10 See JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN INTRODUCTION

TO JURISPRUDENCE 11 (rev. ed. 1990) (describing St. Augustine’s formulation of natural law). 11 See Hart, supra note 9, at 602. 12 JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 185 (Isaiah Berlin et al. eds., 1954) (1832), quoted in Hart, supra note 9, at 616. The example bears a striking resemblance to the circumstances described in Antigone. See, SOPHOCLES, supra note 5 (describing Sophocles’s play). 13 See Graham Hughes, Books, Positivists and Natural Lawyers, 17 STAN. L. REV. 547, 547 (1965) (reviewing Fuller’s The Morality of Law) (see infra note 203). 14 See, e.g., Oliver Wendell Holmes, Speech at the Dedication of the New Hall at the Boston University School of Law (Jan. 8, 1897), in The Path of the Law, 110 HARV. L. REV. 991 (1997). Holmes notes that:

When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to



something suspicious, redolent with the taint of conservative religion,15 an obsolete relic of our pre-legal religious codes. Troubled by the notion of judges who might apply their own moral beliefs to the controversies before them instead of applying the law, we require that our judges set aside their roles as independent moral agents and act as impartial functionaries within our legal institutions.16 We may even feel a strange admiration for a judge who enforces the law although it tugs at his conscience as wrong, and who, although torn between his personal morality and his judicial duties, does what the law compels. Such a thoughtful judge seems heroic, tragic, and inspiring.

What can the positivist jurist do when confronted with evil laws? Bentham and Austin both assumed that if the law reached a certain threshold of iniquity, there would be a self-evident moral duty to defy it. Hart has suggested that the separation thesis might actually heighten the individual’s ability to resist acquiescing to wicked laws:

Wicked men will enact wicked rules which others will enforce. What surely is most needed in order to make men clear-sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to a moral scrutiny.17

Unfortunately, Hart’s summons to vigilance appears to rely upon false optimism. Lon Fuller has argued that positivism is no safeguard against wicked men and their wicked rules.18 His discussion of German legal scholar Gustav Radbruch is a prism through which Nazi law is refracted into a spectrum of legal positivism gone horribly awry.

INTERLUDE I: EVIL LAWS IN NAZI GERMANY

imagine yourselves indifferent to other and greater things. Id. at 992. 15 See KURT VONNEGUT, God’s Law, in PALM SUNDAY: AN AUTOBIOGRAPHICAL COLLAGE

9-12 (1981) (arguing that religious crusaders have long abused the moral weight of divine and natural law to trump “mere” human law, oppressing secular human systems with the tyrannical claim of knowing divine will in the same way that an ace trumps a king or queen in cards). 16 See MODEL CODE OF JUDICIAL CONDUCT R. 2.2 (2007), available at http://www.ajs.org/ethics/pdfs/ABA2007modelcodeasapproved.pdf (“A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”). 17 HART, supra note 8, at 210. Of course, Hart does not make clear at what point, or how, the jurist should reject the wicked law. 18 Lon L. Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 HARV. L. REV. 630 (1957).



Eichmann feels guilty before God, not before the law. . . .19

Gustav Radbruch had been a chief proponent of legal positivism in

Germany until World War II.20 Until the war, he had viewed the problem of evil laws exactly as Hart has described it—as a matter for one’s personal conscience, to be thought out by the individual as a moral problem and not a legal issue. All laws which were valid under the rules of recognition created a corresponding legal obligation of obedience.21 The validity of the law could not be disproved by showing that its requirements were evil. Yet Radbruch began to question these assumptions when he witnessed the gross perversions of law that flourished under Nazi rule. This was the era of Max Israel Adler, jailed by the courts for simply looking across the street at a pure-blooded German girl;22 it was the era of Werner Hollander, executed for having an affair with a German woman;23 and it was the era of Leo Katzenberger, executed on the mere suspicion of having an affair with a German woman.24 It was an era when Nazi judges interpreted their laws so as to reach death sentences for violations as trivial as a Jew’s hoarding of eggs.25

Having witnessed such blasphemies of law, Radbruch underwent a conversion as striking as that of Saul on the road to Damascus.26 After the war, Radbruch recanted positivism, claiming that legal obligations are equally or even more compelling to people than moral obligations, and suggesting that rigid adherence to positivism explained why the German legal community had capitulated to the Nazis.

German jurists generally tended to regard the Anglo-American common law as a messy and unprincipled conglomerate of law and morals. Positivism was the only theory of law that could claim to be “scientific” in an Age of Science. Dissenters from this view were characterized by positivists with that epithet modern man fears above all others: “naïve.”27

Reliance on positivist slogans like Gesetz als Gesetz (law as law),28

19 HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL 21 (rev. and enlarged ed. 1965) (quoting Robert Servatius). 20 See David Luban, A Report on the Legality of Evil: The Case of the Nazi Judges, 61

BROOK. L. REV. 1139, 1142 (1995) (describing Radbruch’s views). 21 See Jules L. Coleman, Negative and Positive Positivism, 11 J. LEGAL STUD. 139 (1982). 22 See INGO MULLER, HITLER’S JUSTICE: THE COURTS OF THE THIRD REICH 111 (Deborah Lucas Schneider trans., 1991). 23 See id. at 112-13. 24 See id. at 113. 25 United States v. Alstoetter, in 3 TRIALS OF WAR CRIMINALS 100-26 (1951). 26 Acts 9:3-9. 27 Fuller, supra note 18, at 659 (citations omitted). 28 H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 73 (1983).



and the acceptance as law of “anything that called itself by that name, was printed at government expense, and seemed to come ‘von oben herab’ [from on high]”29 had enslaved the German judiciary. Freed of its inner morality, the law had become a death’s-head instrument in the hands of jurists who subverted justice in the name of National Socialist politics.30 Indeed, it was a positivist judge who urged, “[e]liminating the last traces of the enemy within is undoubtedly a part of the restoration of German honor. German judges can participate in this task through generous interpretation of the penal code.”31

A realist might dismiss the struggle between the abstract doctrines of positivism and natural law jurisprudence as meaningless noise, claiming that “[w]hat . . . officials do about disputes is . . . the law itself.”32 A cynic might say that judges will do what judges will do, and that models of adjudication have no practical consequences beyond the doors of the ivory tower. Yet if we are to believe Radbruch, the models that judges employ in their decision-making matter. Indeed, one legal scholar has suggested that if German judges had only taken a moral stand against evil laws, they would have stopped the Holocaust;33 another commentator has suggested that taking such a stand would have prevented the whole of World War II.34

INTERLUDE II: UNDER COVER: ADJUDICATING THE FUGITIVE SLAVE

ACTS

[T]here was a general, pervasive disparity between the individual’s image of himself as a moral human being . . . and his image of himself as a faithful judge, applying legal rules impersonally . . . .35

29 See Fuller, supra note 18, at 659. 30 The politicization of legal proceedings has a corrosive effect upon the rule of law. For this reason, speculation that Attorney General Alberto Gonzales may have terminated a number of United States Attorneys for what have been political, rather than performance-related, reasons, prompted strident calls for his removal. See, e.g., Editorial, A Feeble Performance, N.Y. TIMES, May 12, 2007, at A14 (suggesting that the Bush Administration’s efforts to politicize the rule of law is important enough to warrant Gonzales’s removal from his office). Attorney General Gonzales announced his resignation on August 27, 2007. See Philip Shenon & David Johnston, A

Defender of Bush’s Power, Gonzales Resigns, N.Y. TIMES, Aug. 28, 2007, at A1. 31 Richard A. Posner, Book Review, Courting Evil, THE NEW REPUBLIC, June 17, 1991, at 38 (reviewing Muller’s book) (see supra note 22). 32 K. N. LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STUDY 12 (1960). 33 Norman L. Greene, Nazis in the Courtroom: Lessons from the Conduct of Lawyers and

Judges Under the Laws of the Third Reich and Vichy, France, 61 BROOK. L. REV. 1121, 1155

(1995) (citing views of Judge Jack B. Weinstein). 34 Id. at 1163 (citing views of Professor Fritz Stern). 35 ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 228 (1975).



Sadly, the displeasing consequences of the law’s fascination with

positivism were not limited in time and place to Nazi Germany. In Justice Accused, Robert Cover considered the phenomenon he calls the moral-formal dilemma.36 In this work, he examined the decisions of Northern abolitionist judges who were placed between the Scylla of being faithful to their personal morality and the Charybdis of honoring their sworn commitment as judges to uphold the Constitution and the laws of the United States (including the Fugitive Slave Acts of 1793 and 1850, authorizing federal involvement in slave-catching in the Northern states).37 These acts had been passed by valid majorities in Congress and were sanctioned by the Constitution. But these same laws, while legally legitimate, were morally reprehensible in the eyes of many of the judges duty-bound to enforce them. Cover suggested that the northern judges assuaged their consciences by transforming law into a formalistic game.38 These judges upheld the façade of positivist law, but manipulated the law so as to reach just results.

For example, in Prigg v. Pennsylvania,39 the United States Supreme Court struck down as unconstitutional an anti-kidnapping law that prohibited the forcible seizure of Blacks with the intent to return them to a slave state, and that denied Pennsylvania magistrates the authority to hear claims brought before them under the 1793 Act. In writing the Court’s opinion, Justice Story struggled to reconcile his fundamental rejection of slavery with his judicial commitment to nationalism. Story noted that since the Constitution guaranteed the slave owners’ right of reclamation, there was an implied power on the part of Congress to enforce that right.40 But Story rejected the idea that the return of Southern slaves was a matter of interstate comity, arguing instead that it was a matter of exclusively federal concern.41 Thus, treating law as a formalistic game, Story concluded that since there was no obligation on the states to enforce the 1793 Act, Pennsylvania could prohibit its magistrates from hearing cases brought under the Act.42 It was a clever legal trick. But this formalistic loophole was closed with the passage of the broader 1850 Act, which, in addition to establishing federal officers to assist in slave-catching and imposing penalties for obstructing the capture of runaway slaves, also eliminated the

36 Id. at 197-98. 37 See Act of Feb. 12, 1793, 1 Stat. 305 (repealed 1864) and Act of Sept. 18, 1850, 9 Stat. 464 (repealed 1864). 38 See COVER, supra note 35, at 123-25. 39 41 U.S. (16 Pet.) 539 (1842). 40 Id. at 612. 41 Id. at 614-15. 42 Anthony J. Sebok, Judging the Fugitive Slave Acts, 100 YALE L.J. 1835, 1851-52 (1991).



possibility of reconciling the federal laws with what amounted to state recusal. The legislative fix thereby bound even the cleverest of positivists.

Ronald Dworkin rejected Cover’s suggestion that there was anything necessary about the moral-formal dilemma faced by the northern judges, arguing that it is actually the judge’s job to make a community’s legal record the best it can be from the point of view of political morality.43 And this is precisely what Justice Smith of the Wisconsin Supreme Court tried to do in In re Booth,44 a case in which the appellants had been arrested for abetting the escape of a slave. In Booth, the court held that the appellants could not be held on charges of interference since these were founded on the 1850 Act, and the 1850 Act—engrafting slave codes upon the laws of every free state and thereby violating the due process requirements of the Fifth Amendment—was unconstitutional.45 But establishing the community’s legal record from the point of view of political morality as Dworkin has suggested was insufficient in Booth. Such reasoning failed to satisfy the United States Supreme Court, and when the Wisconsin court refused to return any writ of error, the Court overturned the Wisconsin decision from a certified record.46

Cover was correct in articulating the moral-formal dilemma, and Dworkin was too optimistic about the principle-based options available to judges operating within a legal hierarchy governed by legal positivism. The Wisconsin court may not have been straitjacketed by positivist formalism, but the Supreme Court was. Because trial courts must answer to courts of appeals, judges who choose to draw upon moral principles in their decision-making must legally account for those decisions. There are keepers at every doorway.47

INTERLUDE III: WE AREN’T OUT OF THE WOODS YET—MANDATORY

MINIMUM SENTENCING IN THE FEDERAL COURTS

The judge simply surrendered to the imperative of the statutes, a course of action that absolved him of judicial murder, and that caused him to weep. . . . But he could no more change the law than a

43 Ronald Dworkin, The Law of the Slave-catchers, TIMES LITERARY SUPPLEMENT, Dec. 5, 1975, at 1437. 44 3 Wis. 157 (1854). 45 Id. at 189. 46 Ableman v. Booth, 62 U.S. (21 How.) 506, 514 (1858) (holding that the Wisconsin court did not have the power to overturn federal precedent). 47 See supra note 1 (using this phrase in epigram).



clergyman could rewrite the Bible.48

Even today, American judges are plagued by the moral-formal

dilemma. While neither as egregious nor as obvious as the abuses of law that flourished under the Nazis, the Supreme Court of the United States still wrestles with laws that, while valid, incense and outrage commentators. The Supreme Court has vindicated capital punishment in the United States,49 and, until recently, had authorized its use on teenagers50 and the mentally retarded.51 It has upheld a life sentence for frauds totaling less than $230.00,52 upheld a mandatory life sentence without the possibility of parole for possessing 672 grams of cocaine,53 and, under California’s three strikes law, has upheld twenty-five-to-life sentences for the theft of three golf clubs54 or $150.00 worth of videotapes.55

Perhaps the most glaring modern examples of the moral-formal dilemma, however, appear in the context of federal sentencing.56 Although the Sentencing Reform Act of 1984 was bipartisan legislation, the road to which was paved with golden intentions,57 it spawned sentencing guidelines that have been the object of scorn, contempt, and derision since their inception.58 In particular, the federal sentencing

48 ROBERT HUGHES, THE FATAL SHORE 30 (1988). 49 See, e.g., FRANKLIN E. ZIMRING, THE CONTRADICTIONS OF AMERICAN CAPITAL

PUNISHMENT 9, 68-71 (2003) (describing the United States’ 1972 suspension of capital punishment after Furman v. Georgia, 408 U.S. 238 (1972) and the re-introduction of the punishment in 1976 after the Court’s decision in Gregg v. Georgia, 428 U.S. 153 (1976)). 50 See Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (holding that execution of persons under 18 at the time of their crime “does not offend the Eighth Amendment’s prohibition against cruel and unusual punishment”). But see Roper v. Simmons, 543 U.S. 551 (2005) (holding that execution of persons under 18 at the time of their crime does violate the Eighth and Fourteenth Amendments). 51 See Penry v. Lynaugh, 492 U.S. 302 (1989) (holding that the Eighth Amendment did not categorically prohibit death sentences for mentally retarded defendants). But see Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the execution of mentally retarded defendants is cruel and unusual punishment in violation of the Eighth Amendment). 52 See Rummel v. Estelle, 445 U.S. 263 (1980). 53 See Harmelin v. Michigan, 501 U.S. 957 (1991). 54 See Ewing v. California, 538 U.S. 11 (2003). 55 See Lockyer v. Andrade, 538 U.S. 63 (2003). 56 See Weinstein, supra note 5, at 132-33 (“The battle against fundamental injustice is now being waged in trial courtrooms in the confrontation between Federal Sentencing Guidelines designed to punish by those afar without understanding the unnecessary cruelties that result when real human beings before the court are treated as cyphers rather than individuals.”). 57 See Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified as amended at 18 U.S.C. §§ 3551-3559, 3561-3566, 3571-3574, 3581-3586, 28 U.S.C. §§ 991-998 (1988)); Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History

of the Federal Sentencing Guidelines, 28 WAKE FOREST L. REV. 223, 223-25 (1993) (tracing the nine-year evolution of the legislation). 58 See, e.g., MICHAEL TONRY, SENTENCING MATTERS 11 (1996) (“Few outside the federal [sentencing] commission would disagree that the federal guidelines have been a disaster.”).



guidelines have been excoriated as unnecessarily complex,59 draconian,60 and dehumanizing.61

Furthermore, real-offense sentencing, under which defendants can be punished for conduct that was never charged (even conduct that was acquitted by the jury), has been condemned by academic and popular commentators alike.62

Until 2005, the federal guidelines were effectively mandatory, “guideline” only in name. With the Supreme Court’s decision in United States v. Booker,63 however, the binding nature of the guidelines was struck down as unconstitutional and federal judges were free to impose any lawful sentence, subject to review for reasonableness.64 Yet while

59 See, e.g., KATE STITH & JOSÉ A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES

IN THE FEDERAL COURTS 5 (1998) (“Judges, prosecutors, defense attorneys, and probation officers find themselves operating in a labyrinthine system of rules devised by a distant and alien administrative agency. The rules themselves, which generally ignore individual characteristics of defendants, often seem to sacrifice comprehensibility and common sense on the altar of pseudo-scientific uniformity.”). 60 See, e.g., id. at 60 (“The Commission interpreted the Sentencing Reform Act’s requirement of severe sentences for career offenders and for many convicted of violent and drug offenses to require more severe sentences than had been imposed in the past.”) (emphasis in original) (citations omitted). Under the guidelines, sentences roughly doubled. Average sentence length increased from a pre-guidelines (1977-1986) level of twenty-eight months to a guidelines (1989-1996) level of fifty months; average time served increased from a pre-guidelines level of thirteen months to a guidelines level of forty-three months. Id. at 63, tbl. 1. 61 See, e.g., Erik Luna, Gridland: An Allegorical Critique of Federal Sentencing, 96 J. CRIM. L. & CRIMINOLOGY 25, 39 (2005) (“Under the Guidelines, judges thus confront defendants as numbers rather than as human beings.”). 62 See, e.g., Kevin R. Reitz, Sentencing Facts: Travesties of Real-Offense Sentencing, 45 STAN. L. REV. 523 (1993) (criticizing real offense sentencing as producing unjust results); David Yellen, Illusion, Illogic, and Injustice: Real Offense Sentencing and the Federal Sentencing

Guidelines, 78 MINN. L. REV. 403 (1993) (same); ERIK LUNA, CATO INST. POLICY ANALYSIS

NO. 458: MISGUIDED GUIDELINES: A CRITIQUE OF FEDERAL SENTENCING 9 (2002), http://www.cato.org/pubs/pas/pa458.pdf (last visited May 24, 2007) (same). One commentator has described real-offense sentencing as the cruelest of lawyer jokes:

A man walks into a lawyer’s office and says he’s been indicted with partners on multiple counts of stock fraud. He sees the government’s case as weak and wants to go to trial. The lawyer informs the stunned client that if he’s convicted on only one count, the jury’s not-guilty verdict on the other charges means little under the Federal Sentencing Guidelines. Why? A defendant may be punished for acquitted conduct if the judge merely believes he’s guilty. The punch line: You can win at a trial only if there’s a complete acquittal. If you’re convicted of anything, you can be punished for everything.

Gerald Shargel, Run-on Sentencing: The Barely Noticed Mayhem Following the Supreme Court’s

Blakely Decision, SLATE, July 12, 2004, http://www.slate.com/id/2103754. 63 543 U.S. 220 (2005) (holding that any fact other than a prior conviction that is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt, and accordingly rendering the federal sentencing guidelines advisory). 64 Id. at 261 (holding that the advisory guidelines “imply a practical standard of review already familiar to appellate courts: review for ‘unreasonable[ness].’”). Of course, what constitutes a “reasonable” sentence remains an open question. See, e.g., Adam Lamparello, The Unreasonableness of “Reasonableness” Review: Assessing Appellate Sentencing Jurisprudence



the Booker decision affords trial judges some additional discretion in imposing sentences,65 judges’ hands remain altogether tied in cases involving mandatory minimum penalties. Today, mandatory minimum sentences force judges to confront the Antigone dilemma, choosing between what is lawful and what is right.

Mandatory minimum sentences, established by statute and clumsily engrafted upon the federal guidelines,66 often result in “cliffs,” wildly disparate punishments for similarly situated offenders.67 In addition, mandatory minimum sentences may result in the imposition of significantly harsher penalties when a defendant crosses what appears to be a somewhat arbitrary line.68 Furthermore, unless the defendant qualifies for a “safety-valve” departure,69 even the degree of participation in the transaction cannot reduce the mandatory minimum sentence.70

Many federal district judges chafe against mandatory minimum sentences, frustrated by blunderbuss laws that require them to impose

after Booker, 18 FED. SENT’G REP. 174 (2006); Nancy King, Essay, Reasonableness Review after

Booker, 43 HOUS. L. REV. 325 (2006); Jeffrey S. Hurd, Federal Sentencing and the Uncertain

Future of Reasonableness Review, 84 DENV. U. L. REV. 835 (2007). 65 After the Booker decision, there was actually very little change in sentencing practices. See U.S. SENTENCING COMM’N, FINAL REPORT ON THE IMPACT OF UNITED STATES V. BOOKER ON

FEDERAL SENTENCING vii-viii (Mar. 2006), available at http://www.ussc.gov/booker_report/Booker_Report.pdf (noting that “[t]he majority of federal cases continue to be sentenced in conformance with the sentencing guidelines”). 66 Stephen Breyer, Assoc. Justice, U.S. Supreme Court, Address at the University of Nebraska College of Law, Roman L. Hruska Institute: Federal Sentencing Guidelines Revisited (Nov. 18, 1998), reprinted in 2 FED. SENT’G REP. 180 (1999). Justice Breyer noted:

Congress, in simultaneously requiring Guideline sentencing and mandatory minimum sentencing, is riding two different horses. And those horses, in terms of coherence, fairness, and effectiveness, are traveling in opposite directions. In 1994 Congress enacted a “safety-valve” permitting relief from mandatory minimums for certain non-violent, first-time drug offenders. This, in my view, is a small, tentative step in the right direction. A more complete solution would be to abolish mandatory minimums altogether.

Id. 67 See U.S. SENTENCING COMM’N, SPECIAL REPORT TO THE CONGRESS: MANDATORY

MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 29-30 (Aug. 1991), available

at http://www.ussc.gov/r_congress/MANMIN.PDF (describing the sharp differences in penalties imposed on similarly situated offenders) (last visited May 24, 2007). 68 See id. (“For example, 21 U.S.C. § 884 mandates a minimum five-year term of imprisonment for a defendant convicted of first-offense, simple possession of 5.01 or more grams of 'crack,” a sentence that the guidelines accomodate [sic] by prescribing an imprisonment range of 63-78 months. However, a first-offender convicted of simple possession of 5.0 grams of crack is subjected to a maximum statutory penalty of one year imprisonment.”). 69 See 18 U.S.C. § 3553(f) (2000); U.S. SENTENCING GUIDELINES MANUAL § 5C1.2 (2004) (outlining requirements for safety valve eligibility). 70 Douglas O. Linder, Journeying Through the Valley of Evil, 71 N.C. L. REV. 1111, 1126

(1993) (“Driving a drug dealing acquaintance to the Burger King assures a ten-year minimum sentence no less than engaging in the kind of drug dealing that congressional supporters of the minimum sentence had in mind when they voted for the legislation.”).



sentences they believe to be unjust.71 They wrestle with federal punishment in the same way that antebellum judges wrestled with the Fugitive Slave Acts.72 For example, holding that an imposed mandatory sentence violated the defendant’s due process rights, Judge Alfredo C. Marquez refused to apply mandatory sentencing to a lowly courier hired in Mexico to drive a car containing drugs into the United States.73 Similarly, when faced with the hangman’s task of sentencing an eighty-three-year-old courier to a mandatory ten-year sentence, Judge James Lawrence King refused. Instead, he sentenced Alfonso Valdes to less than two months, reasoning that Congress never intended to imprison a man of his age for a decade.74

Perhaps trial judges impose unjust sentences under mandatory minimum provisions because they know that they will be reversed on appeal if they do not. It may be difficult for a trial judge to look an offender in the eyes and to sentence him to decades of imprisonment, but it may be equally difficult to know that a court of appeals judge will reverse you, in a published opinion, telling the entire world that you were wrong.75 One commentator understated the matter when he wrote

71 José A. Cabranes & Leonard Orland, Lessons from the Federal Courts Study Committee, 5 FED. SENT’G REP. 203, 203 (1993) (“Federal judges are almost unanimously opposed to mandatory minimums . . . .”). 72 See David M. Zlotnick, Shouting into the Wind: District Court Judges and Federal

Sentencing Policy, 9 ROGER WILLIAMS U. L. REV. 645, 646 (2004) (comparing judges required to impose mandatory sentences to judges who were required to enforce the fugitive slave acts and noting that “there is a long tradition of American judges using the bench as a bully pulpit to declare laws, enacted by Congress and upheld by the Supreme Court, morally wrong”). 73 See United States v. Redondo-Lemos, 754 F. Supp. 1401, 1406-09 (D. Ariz. 1990), rev’d, 955 F.2d 1296 (9th Cir. 1992). 74 United States v. Valdes, D. C. Docket No. 89-10017-CR-JLK (S.D. Fla. 1990), aff’d

convictions, vac’d sentence 966 F. 2d 679 (11th Cir. 1992); Miami Judge Rejects Sentencing

Guidelines, WASH. TIMES, Oct. 12, 1990, at B5. 75 Of course, the courts of appeals typically ascribe the errors of lower-court judges to “the court” and not to individual judges. See Sambhav N. Sankar, Comment, Disciplining the

Professional Judge, 88 CAL. L. REV. 1233, 1251-52 (2000), who notes that: Generally, appeal and mandamus orders do not carry personal attributions of error or assignation of fault; appellate courts try to depersonify the lower court judge and simply state that “the court below” made a mistake. As one judge states, these mechanisms correct “honest error” that, unless intentional or belligerent, does not call for punishment so much as correction, or “setting straight.” This may simply be the judicial profession’s natural response to the fact that both processes are highly public and visible. In order for the profession to maintain its respect in the eyes of the public, it must not attribute errors to the faults of its members, and thus corrections must not carry stigma or “sting.”

That said, judges who hope to be promoted to the courts of appeals, or appointed to the Supreme Court, may take pains to avoid reversal. See Daniel Klerman, Nonpromotion and Judicial

Independence, 72 S. CAL. L. REV. 455, 463 (1999) (“Is the level of promotion in the federal courts a danger to judicial independence? Anecdotal evidence suggests that the possibility of promotion does influence judicial behavior.”).



that “judges dislike reversal.”76 Perhaps federal trial judges impose mandatory minimum sentences, despite their antipathy for such penalties, because they know that refusing to impose them is futile,77 resulting in both the rebuke of a reverse-and-remand order and the ultimate imposition of the mandatory sentence.

The federal courts of appeals regularly thwart the desperate “attempts by trial judges to tailor sentences to the circumstances of individual cases while expressing regret that the law should force such a harsh result.”78 Thus, when Judge Walter Jay Skinner reduced a mandatory sentence in a pornography possession case involving a forty-one year old man with no criminal record, noting that “imprisonment will simply prevent the defendant from continuing to be a useful person,”79 the First Circuit reversed his decision, reasoning that “[a]lthough the district court’s sense of compassion and pragmatism . . . is understandable, regrettably, these considerations are insufficient to justify a downward departure.”80 Similarly, when the First Circuit reversed Judge C. Weston Houck’s decision to depart downward from the then-mandatory sentencing guidelines because of the defendant’s pregnancy, it noted that “judicial compassion . . . cannot be condoned when it results, as in this case, in individual sentencing contrary to the intent and command of the guidelines.”81

In the case of United States v. Angelos,82 a twenty-four-year-old first-time offender was sentenced to fifty-five years in federal prison. Angelos was convicted of dealing marijuana and other associated

76 William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 541 (2001). There can be other consequences for the trial judge who is often reversed. See W. Bernard Richland, Book Review, 64 COLUM. L. REV. 180, 182 (1964) (describing the New York Court of Appeals’ refusal to accept Judge Samuel Seabury as a Court of Appeals judge because he had publicly criticized a number of the court’s decisions). 77 See Weinstein, supra note 5, at 155 (“If the trial court can find no reasoned way to distinguish precedents, acquiescence in the courtroom—but not silence—is required. In the face of a specific mandate, a trial judge has no alternative but to follow the court of appeals’ instructions.”). 78 Linder, supra note 70, at 1144. 79 United States v. Studley, 907 F.2d 254, 257 (1st Cir. 1990). 80 Id. at 255-56. 81 United States v. Pozzy, 902 F.2d 133, 140 (1st Cir.), cert. denied, 498 U.S. 943 (1990). The same sentiment is nicely echoed in the words of the Inquisitor of George Bernard Shaw’s Saint Joan:

Gentlemen: I am compassionate by nature as well as by my profession; and though the work I have to do may seem cruel to those who do not know how much more cruel it would be to leave it undone, I would go to the stake myself sooner than do it if I did not know its righteousness, its necessity, its essential mercy. I ask you to address yourself to this trial in that conviction. Anger is a bad counsellor: cast out anger. Pity is sometimes worse: cast out pity. But do not cast out mercy. Remember only that justice comes first.

GEORGE BERNARD SHAW, SAINT JOAN 130 (Penguin Classics 2001) (1932). 82 345 F. Supp. 2d 1227 (D. Utah 2004).



offenses that under the sentencing guidelines would have resulted in about six-and-a-half years (78-97 months) of imprisonment.83 But because Angelos was in possession of a gun while conducting two drug deals, and because additional handguns were found in his home during the execution of a search warrant,84 he was charged with three stacking 18 U.S.C § 924(c) firearms offenses that required the imposition of fifty-five additional years (660 months) in mandatory minimum terms, resulting in a minimum proscribed punishment of just over sixty years (738 months).85

The presiding judge, Paul Cassell, a law professor and former federal prosecutor with “a reputation for being scholarly, conservative, and practical,”86 questioned the propriety of sentencing a first-time drug offender to a de facto life sentence. Judge Cassell wrote:

The court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational. Adding 55 years on top of a sentence for drug dealing is far beyond the roughly two-year sentence that the congressionally-created expert agency (the United States Sentencing Commission) believes is appropriate for possessing firearms under the same circumstances. The 55-year sentence substantially exceeds what the jury recommended to the court. It is also far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second degree murder, espionage, kidnapping, aggravated assault, and rape. It exceeds what recidivist criminals will likely serve under the federal “three strikes” provision.87

Judge Cassell appears to have agonized over the decision, aching to strike down the fifty-five year sentence on Equal Protection and Eighth Amendment grounds,88 but on November 16, 2004, he imposed a sentence of fifty-five years (for the three minimum firearms counts) and one day (for all the other charges).89 Judge Cassell believed that he was legally obligated to impose the sentence,90 a view borne out by the Tenth Circuit’s affirmation of it.91

83 Id. at 1232. 84 Id. at 1231. 85 Id. at 1244. 86 Eva S. Nilsen, Indecent Standards: The Case of U.S. versus Weldon Angelos, 11 ROGER

WILLIAMS U. L. REV. 537, 541 (citations omitted). 87 Angelos, 345 F. Supp. 2d at 1230. 88 Id. at 1256 (“[T]he court reluctantly concludes that § 924(c) survives rational basis scrutiny”); id. at 1259 (“Having analyzed the three Harmelin factors, the court believes that they lead to the conclusion that Mr. Angelos’ sentence violates the Eighth Amendment. But . . . there is one last obstacle to overcome.”). 89 Id. at 1260. 90 Id. at 1261. 91 See United States v. Angelos, 433 F.3d 738 (10th Cir. 2006) (affirming Angelos’s sentence).



Nevertheless, after imposing an unjust but unavoidable sentence, Judge Cassell also felt “ethically obligated to bring this injustice to the attention of those who are in a position to do something about it.”92 Accordingly, he wrote to the Office of the Pardon Attorney, urging commutation of Angelos’s sentence,93 recommended that Congress eliminate the stacking feature of the federal firearm charges,94 and even included a discussion of the Angelos case in his testimony before the House Subcommittee on Crime, Terrorism, and Homeland Security.95 But the Supreme Court did not grant certiorari in the case,96 and neither the Pardon Attorney nor the President has taken steps to commute Angelos’ sentence. Today, Weldon Angelos remains imprisoned in the Bureau of Prisons penitentiary in Lompoc, California.97 His projected release date is November 18, 2051.98

Interestingly, it is not only trial judges who are straitjacketed by mandatory minimum penalties. Federal judges on the courts of appeals sometimes agonize over them, too. In United States v. Hungerford,99 a case that makes the Angelos case look benign, the Ninth Circuit Court of Appeals rejected the defendant’s constitutional challenges to her sentence. Marion Hungerford never held a weapon during the robberies that her boyfriend carried out, but she was involved in the planning of the crimes and enjoyed the spoils of the offense. Accordingly, she was convicted of conspiracy and seven counts of robbery and using a firearm in relation to a crime of violence.100 Because of the seven stacked § 924(c) counts, she was sentenced to slightly more than 159 years in prison.101 Although the evidence indicated that Marion Hungerford suffered from a severe case of borderline personality disorder,102 the Ninth Circuit, following established precedent, rejected her claims and affirmed her sentence.103 In his withering concurrence, Judge Reinhardt wrote:

92 Angelos, 345 F. Supp. 2d at 1261. 93 Id. at 1261-62. 94 Id. at 1262-63. 95 Oversight Hearing on United States v. Booker: One Year Later—Chaos or Status Quo?

Before the House Subcomm. on Crime, Terrorism, and Homeland Security, 109th Cong. 63-141 (2006) (statement of Paul Cassell, Chair, Criminal Law Committee of the Judicial Conference), available at http://judiciary.house.gov/media/pdfs/printers/109th/26647.pdf (last visited Oct. 13, 2006). 96 127 S. Ct. 723 (2006) (denying certiorari). 97 See Federal Bureau of Prisons Inmate Locator, http://www.bop.gov/iloc2/LocateInmate.jsp (last visited May 23, 2007) (identifying Weldon Angelos’s place of incarceration). 98 Id. 99 465 F.3d 1113 (2006). 100 Id. at 1114. 101 Id. at 1119. 102 Id. 103 Id. at 1118.



Not only is the sentence cruel, it is absurd. It imposes a term of imprisonment of 159 years, under which Hungerford would be incarcerated until she reached the age of 208. The absurdity is best illustrated by the judge’s reading to Hungerford the terms of supervised release which she would be required to undergo when she emerged from prison toward the end of the first decade of her third century. The judge told Hungerford that “[w]ithin 72 hours of release from custody,”—in the year 2162—she must “report in person to the probation office,” and while on supervised release she must “participate in substance abuse testing to include not more than 104 urinalysis tests.” He further ordered Hungerford to “participate in a program for mental health,” and “pay part or all of the cost of this treatment, as determined by the U.S. probation officer.” What Hungerford should do if she were too old or feeble to attend the mental health program, the judge failed to advise her. Certainly, requiring a defendant and a district judge to engage in a charade of this nature cannot increase respect for our system of justice.104

Mandatory minimums are frequently a source of moral anguish for many federal judges, both in the district courts and in the courts of appeals. In cases such as Angelos or Hungerford, mandatory minimum sentences have led to excruciatingly immoral results. Yet because these provisions have been lawfully enacted by Congress, they are valid laws. Federal judges, both in the district courts and in the courts of appeals, are bound by them. Indeed, existing precedents often directly preclude judges from imposing a sentence that is moral and just.105 And when individual judges do struggle to open their eyes to moral questions, and to admit moral considerations into their adjudicative processes, the positivist hierarchy of the judiciary seeks to tape their eyes shut again.

A. The Psychology of Blindness

It appears, and this is fatal, that a career in jurisprudence renders one incapable of recognizing and opposing injustice.106

How is it that judges, society’s sworn guardians of Justice, have

effectuated laws that they knew were unjust? It is not that judges were simply immoral or thoughtless; judges are typically bright, well-

104 Id. at 1120-21. 105 See, e.g., id. at 1120 n.4 (concluding that “[w]e are foreclosed from holding the sentence to be in violation of the cruel and unusual punishment clause because of its severity by Harmelin

and Ewing v. California”) (emphasis added). 106 Arthur Kaufman, National Socialism and German Jurisprudence from 1933 to 1945, 9 CARDOZO L. REV. 1629, 1633 (1988).



educated people, committed to a life of public service.107 Judges have agonized over the moral-formal dilemma.108 They have suffered. Yet these same tortured judges have failed to defy evil laws, have failed even to wash their hands of judicial wrongdoing, and have affirmatively—complicitly—enforced wicked rules enacted by wicked men.109 In trying to understand this phenomenon, we must first appreciate that judicial evil is rarely the product of individual viciousness. Rather, the mere unwillingness or inability of a judge to stand against evil law is sufficient to unleash unspeakable horrors.

[Adolf] Eichmann’s opportunities for feeling like Pontius Pilate were many, and as the months and the years went by, he lost the need to feel anything at all. . . . He did his duty . . . he not only obeyed orders, he also obeyed the law. . . . The well-worn coins of “superior orders” . . . [were employed because they] gave the illusion that the altogether unprecedented could be judged according to precedents and the standards that went with them. . . . [Eichmann] ended by stressing alternately the virtues and the vices of blind obedience, or the “obedience of corpses,” Kadavergehorsam, as he himself called it.110

An appropriate point of departure, then, may be a study of those psychological factors that lead to the obedience of corpses. At least three well-known interrelated processes enable moral judges to impose wicked laws: cognitive dissonance, obedience to authority, and groupthink.

Cognitive dissonance occurs when one’s cognitions or behaviors are inconsistent with one another, creating a psychological pressure to restore consistency.111 If a judge is confronted with a belief (e.g., “I am morally good”) and a contradictory behavior (e.g., “I am doing evil”),

107 See Albert Yoon, Love’s Labor’s Lost? Judicial Tenure Among Federal Court Judges:

1945-2000, 91 CAL. L. REV. 1029 (2003). Yoon writes that: After years of distinguished service, typically in private practice, government, or a state judgeship, occasionally an attorney is recognized by a presidential nomination for a federal judgeship, and, in most cases, Senate confirmation. A federal judgeship offers the opportunity to serve the public, directly shape the law, and develop the minds of subsequent generations of attorneys through the mentorship of judicial clerks. These benefits are accompanied by lifetime tenure and respect from the legal community.

Id. at 1030-31. 108 See, e.g., Furman v. Georgia, 408 U.S. 238, 405-14 (1972) (Blackmun, J., dissenting) (arguing that the Court lacks the authority to override the legislature, although the legislation is wrong and misguided). 109 See HART, supra note 8, at 210. I wonder if Hart imagined that the enforcers of wicked rules enacted by wicked men would be well-meaning jurists, so acting because they felt constrained by their positivist understanding of law. 110 ARENDT, supra note 19, at 135 (italics in original). 111 See LEON FESTINGER, A THEORY OF COGNITIVE DISSONANCE (1957) (outlining the phenomenon of cognitive dissonance).



the judge will experience a state of dissonance. The judge can reduce this tension either by changing his beliefs or by altering his behavior. A good judge who complies with an evil law may alter his behavior, but he is more likely merely to alter his perceptions, mentally justifying the behavior that constrains him. This is the path of least resistance. Cover suggests that positivist judges, confronted with valid-but-wicked laws, employ three forms of dissonance reduction: first, they may elevate the formal stakes associated with law, for example re-conceiving a difficult decision between moral and formal values so that the very fabric of society appears to depend on judicial allegiance to the formal law;112 second, they may retreat to a mechanistic formalism, characterizing themselves as passive functionaries without any real discretion, thereby excusing their inaction;113 and third, they may ascribe responsibility elsewhere, for example, noting that under the separation of powers, it is the legislature and not the judiciary that is responsible for changing the law.114 A fourth possibility exists. Perhaps judges become so enmeshed in the law, or in the concepts and categories of the law, that their very perceptions of justice are altered, thereby allowing them to accommodate the limitations proscribed by the wicked law.115

Most people are familiar with peer pressure, and understand the instinct to fit in, but most of us do not understand how insidious the need to conform truly is. Researchers have found that even when there was no extrinsic reward whatsoever, subjects would provide obviously incorrect answers to easy questions, simply to belong.116 Far more terrifying than mere conformity, though, is our obedience to authority. More dangerous than garden-variety conformity, obedience implies

112 See COVER, supra note 35, at 229-32. 113 See id. at 232-36 114 See id. at 236. 115 See J. M. Balkin, Fidelity in Constitutional Theory: Does the Constitution Deserve Our

Fidelity: Agreements with Hell and Other Objects of Our Faith, 65 FORDHAM L. REV. 1703

(1997). Balkin writes that: Immersing ourselves in this practice makes it seem natural for us to talk and think about justice in terms of the concepts and categories of our constitutional tradition. In this way, the practice of constitutional interpretation can actually skew and limit our understandings about justice, because not all claims are equally easy to state in the language of that tradition.

Id. at 1704. The Wittgensteinian idea that our laws create—and thereby limit—our conceptions of justice (and injustice) supports Kaufman’s claim that a career in jurisprudence impairs the ability to discern and defy injustice. See supra note 106. 116 See, e.g., Solomon Asch, Opinions and Social Pressure, 193 SCI. AM. 31 (1955). Asch describes an experiment in which a group of six apparent subjects were shown a line segment and were asked to say which of three other line segments matched it. In reality, all but one of the “subjects” were confederates who had been instructed to pick one of the wrong lines in a certain percentage of trials. The real subject was placed so that he heard the confederates’ answers before answering. A large fraction of subjects concurred with the judgment of the group instead of accepting the evidence of their own eyes. Id.



acquiescence to an authoritative command. In Stanley Milgram’s seminal study of obedience, volunteers were

told that they were participating as assistants in a study on the effect of punishment on learning, and were led to believe that they were administering mild-to-severe electric shocks to a “subject” on the other side of a partition. In reality, however, the “subject” was actually a confederate, and Milgram was observing the “assistant,” measuring the extent to which people would obey authority.117

The experimenter led the assistant to a shock generator upon which 30 toggle switches were arrayed in 15-volt increments, from 15 volts (labeled “slight shock”) to 450 volts (labeled menacingly “XXX”). The assistant (the real subject of the experiment) was given a sample 45-volt shock,118 and the experiment began. Asked to memorize word pairs, the (confederate) learner in the adjacent room offered both correct and incorrect answers. Each time the learner made an incorrect response, the assistant was supposed to administer an increasingly powerful electric shock. If the assistant hesitated in administering the shock, the experimenter encouraged the assistant, saying coolly, “Please continue.”119

In the experiment, at 75 volts, the learner (who was not actually receiving the shocks) begins to make little grunting sounds.120 At 120 volts, he shouts that the shocks are becoming painful. At 150 volts, he calls out, “Experimenter, get me out of here! I won’t be in the experiment any more! I refuse to go on!”121 At 180 volts, he cries out that he cannot stand the pain. By 270 volts, the response is an agonized scream. At 300 volts, the learner shouts that he will no longer provide answers.122 But silence is not a proper experimental response, and the assistant is told to increase the voltage and administer another shock after 5-10 seconds.123 At 315 volts, after a violent scream, the learner makes it vehemently clear that he is no longer a participant, and offers no answers. He no longer provides answers, although he screams each time a shock is delivered.124 After 330 volts, however, the learner is ominously, terribly silent; he neither screams nor answers.

117 See STANLEY MILGRAM, OBEDIENCE TO AUTHORITY: AN EXPERIMENTAL VIEW 1 (1974) (describing phenomenon of obedience to authority). 118 Id. at 20. 119 Id. at 21. There were actually four sequential “prods” used by the experimenter to encourage advice-seeking or reluctant assistants to deliver the shock: (1) “Please continue,” or “Please go on;” (2) “The experiment requires that you continue;” (3) “It is absolutely essential that you continue;” and (4) “You have no other choice, you must go on.” Id. (italics in original). 120 Id. at 23. 121 Id. 122 Id. 123 Id. 124 Id.



Astonishingly, 65% of Milgram’s subjects went all the way, administering potentially fatal shocks even after the learner demanded to be released from the experiment, even after he stopped providing answers, and even after he ceased screaming in pain.125 The mean maximum shock level applied was 405 volts.126 When Milgram reconfigured the experiment, putting the subject in the same room with the assistant, a mere few feet away, 40% still went to 450 volts, and the mean maximum shock was above 300 volts.127 Even when Milgram required the assistant to force the learner’s hand onto a metal shock plate in order to administer the shock, most assistants continued to participate in the experiment, forcing the defiant learner’s hand onto the electric plate.128 Thirty percent of the assistants in this experimental setting went all the way to 450 volts, and the mean maximum shock was nearly 270 volts.129 The assistants who did so were neither psychopaths nor sadists, but they affirmatively electrocuted another human being simply because an experimenter in a laboratory coat told them they had to continue. They agonized over their task, sweating or laughing nervously, but in the end, they obeyed authority because they believed that someone else was ultimately responsible.

Obedience operates on dissonance principles: if there are no external justifications for one’s behavior, one must accept (moral) responsibility for it, but if there are external forces that coerced one’s behavior, personal responsibility (and with it, moral accountability) is attenuated. For example, culpability is mitigated when one is coerced at gunpoint;130 in similar fashion, being very well paid for a task,131 or being ordered to act by a superior,132 may dilute our sense of moral responsibility in a situation. So too might allegiance to a formalistic conception of law.

125 Id. at 35. 126 Id. 127 Id. 128 Id. at 34. 129 Id. at 35. 130 See, e.g., Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and

Searching for Its Proper Limits, 62 S. CAL. L. REV. 1331 (1989) (evaluating the criminal law scholarship on duress). 131 See FESTINGER, supra note 111. In Festinger’s classic study, subjects were asked to perform a dull, difficult task. Afterward, they were paid to tell the next person that the task was interesting and pleasant. The payment ranged from one dollar to twenty dollars. At the end of the session, subjects were asked how much they had actually enjoyed the task. Those who had been well paid and control subjects who had not been asked to lie described the task as boring. But those who had been paid only one dollar said they had enjoyed the task. 132 Of course, after Nuremberg, “I was just following orders” is only a mitigating factor, and does not confer absolute immunity. See Ronald Slye, Justice and Amnesty, in LOOKING BACK

REACHING FORWARD: REFLECTIONS ON THE TRUTH AND RECONCILIATION COMMISSION OF

SOUTH AFRICA 174, 180-81 (Charles Villa-Vicencio & Wilhelm Verwoerd eds., 2000).



In isolation, an ethical judge might reduce dissonance by modifying his behavior. Indeed, social psychologists have found that when confronted with an emergency, lone subjects typically offer assistance; on the other hand, when surrounded by others who do nothing during a crisis, research subjects assume no responsibility.133 Given the positivist hierarchy of the courts, judges are more likely to reduce dissonance by modifying their beliefs (rationalizing their behavior), since other positivist judges are engaging in the same kind of dissonance reduction.134 In the fomenter of these circumstances, a condition known as “groupthink” might emerge.135

People in insular groups (like the judiciary) can become so preoccupied with maintaining agreement with one another that they lose their ability to think critically. Several characteristics of groupthink help to explain how good judges can enforce evil laws: (1) collective rationalization (collective justification of the group’s actions);136 (2) pressure to conform (internal dissent is discouraged);137 (3) self-censorship (individuals express only thoughts supporting the group view);138 (4) moral superiority (belief that the group’s motives are beyond reproach);139 (5) invulnerability (belief that the group cannot fail).140 Judges are susceptible to many of these characteristics, such as the belief that, being pure, the judicial mission cannot fail. Furthermore, judges often view these characteristics as integral to their legal institutions. For example, they may believe that under the principle of stare decisis, decisions must conform to prior holdings,141 or they may believe that as judges, they are not permitted to translate principles of natural law into positive law, because to do so would violate not only the positive law, but also the natural law they seek to exalt.142

133 See generally BIBB LATANÉ & JOHN M. DARLEY, THE UNRESPONSIVE BYSTANDER: WHY

DOESN’T HE HELP? 87-91 (1970) (describing the diffusion of responsibility associated with groups). 134 See THE BIG CHILL (Columbia Pictures 1983) (suggesting that rationalizations are more fundamental to human survival than sex by asking “Ever gone a week without a rationalization?”). 135 IRVING L. JANIS, VICTIMS OF GROUPTHINK (1978). 136 Id. at 45. 137 Id. at 39-40. 138 Id. at 34. 139 Id. at 88. 140 Id. at 36.

141 See Richard H. Fallon, Jr., Essay, Stare Decisis and the Constitution: An Essay on

Constitutional Methodology, 76 N.Y.U. L. REV. 570 (2001) (suggesting that stare decisis has constitutional status). But see Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May

Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535 (2000) (suggesting that stare decisis is not constitutionally compelled, but only a policy of the judiciary). 142 See Robert P. George, Natural Law and Positive Law, in THE AUTONOMY OF LAW: ESSAYS ON LEGAL POSITIVISM 321 (Robert P. George ed., 1996). George writes that:



The reification of the law as something distinct from judges allows them to maintain a sense of superior moral objectivity. By treating themselves as humble servants of the law (a law that is entirely separate from themselves), judges can indulge in a mythic illusion, telling themselves that they are but impartial functionaries of the law. They can reassure themselves that they are enforcing rules that have emerged from democratic compromises within a pluralistic society, thereby avoiding the voicing of support for one normative faction over another.143 So pretending, believing that they live in a world of legal abstractions (and not a world of human actors), judges can become blind to the consequences of their decisions.

A judge might argue that it is the law itself (not he) that is responsible for the good and evil wrought by law. Radbruch has suggested that, just as soldiers said, “An order is an order,” and followed it unquestioningly, positivist Nazi judges said, “A law is a law,” and, under the color of law, enforced monstrous rules.144

B. Serving Two Masters: When Justice is Not the Law

Since the time of Bismark, German judges were part of what I consider a subservient state bureaucracy, appointed in their youth. In sharp contrast, our judges are independent personalities who take office only after they have demonstrated their own strengths.145

In the preceding epigram, Judge Weinstein has suggested (rather

optimistically) that the perversion of law that once swept Nazi Germany cannot happen in the United States.146 He has insisted that American law, with its firm reliance on constitutional principles such as inalienable rights, egalitarianism under the law, and due process, would never yield to legal evil. American judges are different from German

To the extent that judges are not given power under the Constitution to translate principles of natural justice into positive law, that power is not one they enjoy; nor is it one they may justly exercise. For judges to arrogate such power to themselves in defiance of the Constitution is not merely for them to exceed their authority under the positive law; it is to violate the very natural law in whose name they purport to act.

Id. at 332.

143 Robert M. Cover, The Supreme Court 1982 Term, Foreword: Nomos and Narrative, 97

HARV. L. REV. 4, 58 (1983). 144 Gustav Radbruch, Five Minutes of Legal Philosophy, in PHILOSOPHY OF LAW 103 (Joel Feinberg & Hyman Gross, eds., 4th ed. 1991). 145 Greene, supra note 33, at 1155 (quoting Judge Weinstein). 146 See SINCLAIR LEWIS, IT CAN’T HAPPEN HERE (1935) (suggesting that fascists can come to power, even in free countries like the United States, whenever people blindly support their leaders).



judges. This is a comforting idea. Yet because it is false, it is also a dangerous idea.

When Milgram conducted his famous study of obedience, he asked psychiatrists to predict what fraction of subjects would obey and administer electric shocks to a resistant subject.147 The psychiatrists predicted that virtually all subjects would refuse to obey —they suggested that only a pathological fringe (1/1000) would proceed to the 450-volt extreme of the shock board.148 Of course, in practice, 65% of Milgram’s subjects went all the way.149 The study has been replicated in a number of countries and cultures, with a variety of subjects, and obedience is always the rule.150 Always. There is absolutely no reason to think that judges, as a group, would be exempted. Judge Weinstein was wrong in thinking that it cannot happen in the United States. It has happened, and it is happening still.

Indeed, John S. Martin, Jr., a former District Judge in the Southern District of New York, has suggested that, if anything, the juridifying complexity of the sentencing guidelines and the inflexible severity of mandatory minimum penalties have increased the acquiescence of obedient federal judges:

[P]rior to the sentencing guidelines, a number of judges expressed to me a view that sentencing was the most difficult part of their job. Today, the mandatory minimums and sentencing guidelines in many ways make the job of a judge easier. In the vast majority of cases, judges no longer have to take moral responsibility for the sentence they impose. They could look a defendant that they have just sentenced [sic] thirty years in the eye and say, “Don’t blame me—I’m just a scorekeeper.” Talk to the Congressmen who voted for this mandatory minimum sentence.151

C. Adjudication as a Moral Action

The more mechanical the judge’s view of the process, the more he externalized responsibility for the result.152

147 See MILGRAM, supra note 117, at 31. 148 Id. 149 Id. at 35. 150 See Thomas Blass, The Milgram Paradigm After 35 Years: Some Things We Now Know

About Obedience to Authority, 29 J. APPLIED SOC. PSYCHOL. 955 (1999) (reporting that meta-analysis shows most subjects were willing to inflict maximum shocks, regardless of time or location of the replication). 151 John S. Martin, Jr., Speech, Why Mandatory Minimums Make No Sense, in 18 NOTRE

DAME J. L. ETHICS & PUB. POL’Y 311, 311-12 (2004). 152 COVER, supra note 35, at 234.



John Martin is not alone in comparing the role of the judge to that of a scorekeeper. In his 2005 nomination hearing, before being confirmed as Chief Justice of the Supreme Court of the United States, Judge John Roberts also analogized the judge’s role to that of an umpire:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.153

In a system where judges are but umpires and scorekeepers, real moral responsibility for the laws lies with the legislature,154 and judges who attempt to redirect the course of the laws through judicial holdings have overstepped their position and usurped the legislative role.155 Benjamin Cardozo wrote:

Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite [sic] of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. None the less, [sic] by that abuse of power, they violate the law.156

In a system where the judge is but a scorekeeper and the moral responsibility for law lies exclusively with the legislature, adjudication is not a moral event. It is clinical and bloodless and wholly ministerial, like calculating mathematics or weighing objects on a scale. The sociologist Max Weber described such a system of adjudication by suggesting that a judge operating within it was effectively dropping the relevant facts into a penological slot machine that rendered a just decision automatically.157 An automated system of this kind has been

153 Transcript: Day One of the Roberts Hearing (Sept. 13, 2005), available at http://www.washingtonpost.com/wp-dyn/content/article/2005/09/13/AR2005091300693.html (last visited May 28, 2007). 154 See COVER, supra note 35, at 114 (noting that some judges assuage their consciences by ascribing moral responsibility for painful decisions to other branches of government). 155 See MORTIMER R. KADISH & SANFORD H. KADISH, DISCRETION TO DISOBEY: A STUDY

OF LAWFUL DEPARTURES FROM LEGAL RULES 89 (1973) (quoting Jeremy Bentham as condemning “the stealing of legislative power, by and for hands which could not, or durst not, openly claim it, and but for the delusion thus produced could not exercise it”). 156 BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 129 (1921). 157 See 2 MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 886 (Guenther Roth & Claus Wittich, eds., Univ. Cal. Press 1978) (1956). The notion of an automated sentencing system was supported by Judge Marvin Frankel. See MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 114-15 (1972) (suggesting that the



developed.158 But another scholar has suggested that there is more to adjudication than desiccated calculation; he has suggested that it is an inherently moral action:

To a judge striking the balance among . . . claims, with all the discretion and perplexities involved, his task seems as plain an example of the exercise of moral judgment as could be; and it seems to be the polar opposite of some mechanical application of a tariff of penalties fixing a sentence careless of the moral claims which in our system have to be weighed.159

Adjudication is a moral action. When judges decide cases, rights are shifted between the parties. Obligations are created, damages exacted. Courtroom decisions have real-life effects on the people involved.160 Adjudication is particularly laden with moral significance in criminal cases. Each time a judge sentences an offender to prison, or condemns an individual to death, it should be a solemn, transformative ritual.161 The judge, representing the public, banishes the transgressor from civic society. The judge may impose the sentence with a heavy and reluctant heart, or with a sense of righteous indignation, but the judge should not feel like a notary public, there only to approve the assembly-line bargain struck between the prosecutor and the defense attorney.162

idea of computer-guided sentencing has merit and noting that the concept had been recognized by the Director of the Bureau of Prisons). 158 See He Huifeng, More Courts Will Use “Penalty Calculator,” S. CHINA MORNING POST, Sept. 13, 2006, at 7 (describing use of automated sentencing software in more than 1,500 cases across more than 100 types of offenses, and noting that “[o]nce judges enter relevant details of a case, such as the crime and mitigating circumstances, the system comes up with an appropriate sentence”). 159 Hart, supra note 9, at 613. 160 In the professional responsibility course he taught at Boalt Hall, John Steele used to emphasize that law is a way of doing violence against others. Even in civil cases, there are real (often fiscal) consequences to legal decisions. 161 See, e.g., Recent Case, United States v. Hungerford, 465 F.3d 1113 (9th Cir. 2006), 120 HARV. L. REV. 1988 (2007). The author notes that:

Taking away liberty—locking a human in a cage—requires us to identify the moral justifications for this practice, especially given the deplorable conditions in many prisons. We must study how and why we give authority to government officials to make this decision about a life. We must always be sure that we are engaging in this activity for the right reasons and in the right proportion.

Id. at 1991. 162 See STEVE BOGIRA, COURTROOM 302 (2005) (describing a criminal justice system in which the police, attorneys, and judges have become so habituated to the process that they no longer view defendants as human beings, but as objects for legal processing). The dehumanization of defendants may facilitate the imposition of unjust laws. See MILGRAM, supra note 117, at 9 (“Systematic devaluation of the victim provides a measure of psychological justification for brutal treatment of the victim . . . .”). But another easy way of reducing cognitive dissonance is to devalue victims because one has acted against them. Id. at 10. Thus, judges (and other officers of the court) may dismiss defendants as criminal objects for processing (e.g., “they’re all guilty”) because they apply unjust laws.



Judges are entrusted with the authority of law, up to and including the power to sentence another human being to death.163 It is precisely because Article III judges bear such dizzying moral responsibility that they are selected from the top attorneys in the nation, appointed by the President with the advice and consent of the Senate,164 and appointed for life.165 They are afforded the protections of an independent judiciary because judging is ineluctably moral. Thus, federal judges should experience sentencing as a highly significant moral event. Law is not something that accidentally happens; it is the product of deliberate human action.166 If federal judges do not experience adjudication as a moral event—if they can look a defendant in the eye, shrug, and say, “Don’t blame me—I’m just a scorekeeper”167—then the process of adjudication has been degraded.

Under positivist legal systems, in which judges view themselves as separate and apart from the laws they administer, judicial fidelity to law over justice can have ugly consequences: Nazi law, Apartheid, adherence to the Fugitive Slave Acts of 1793 and 1850, and the imposition of unjust mandatory minimum sentences in the federal courts.

If judges perceive themselves as individually accountable for the consequences of their decisions, Hart may be correct in assuming that judges will challenge wicked rules,168 but if good judges view themselves as part of a larger (morally unresponsive) hierarchy of positivist courts, they may succumb to cognitive dissonance, obedience to authority, or groupthink,169 and fail to do in combination what each would otherwise do alone.

One final question, however, remains to be answered, and it is a difficult one: if a conscientious judge does appreciate the moral significance of adjudication, and does agonize over the moral-formal dilemma, what can that judge do when confronted with an evil law?

163 See 18 U.S.C. §§ 3591-3598 (2000). 164 U.S. CONST. art. II, § 2. 165 Id. § 4. 166 See ROSCOE POUND, LAW AND MORALS: THE MCNAIR LECTURES, 1923, DELIVERED AT

THE UNIVERSITY OF NORTH CAROLINA 122 (Rothman Reprints, Inc. 1969) (1924) (“For law does not enforce itself. Its machinery must be set in motion . . . and guided by . . . individual human beings . . . .”). 167 See supra note 151 and associated text. 168 See supra note 17 and associated text. 169 See supra notes 111-141 and associated text (describing psychological processes that facilitate acquiescence in judicial evil).



D. A Choice of Nightmares:170 The Available Options

Courage in public life means not only the fortitude to withstand criticism and even outrage, but the strength as well to examine one’s conscience and soul and to speak from the truth and conviction that we know lies deep within our hearts.171

Conscientious judges, recognizing the moral decision-making

inherent in the process of rendering judgment, have choices each time they are faced with evil laws. Cover has identified four options available to judges who are torn between law and morality. First, judges may apply evil laws, even though doing so troubles their consciences. Second, they may resign. Third, they may do what their consciences urge them to do and disregard the law. Fourth, they may cheat, stating that the law is not what they believe it to be, maintaining the appearance of conformity between law and morality where in fact none exists.172

The first option is nothing more than what positivist lawyers and judges believe they are supposed to do, often at the cost of feeling torn between judicial duty and personal morality.173 Of course, fidelity to the evil law does not necessarily imply zealous support for it. The conscientious judge may criticize an immoral law in published opinions while simultaneously upholding it.174 Somewhat more controversially, the judge may also criticize the law through out-of-court speech,175 or seek to change the law or modify the verdict through extrajudicial channels.176 These efforts, however, may not be effective. The court

170 The phrase “a choice of nightmares” stems from JOSEPH CONRAD, HEART OF DARKNESS (Modern Library 1993) (1902). 171 Frank J. Battisti, Remarks to the Akron Bar Association, 18 AKRON L. REV. 353, 362 (1985). 172 See COVER, supra note 35, at 6. Cover addressed these options in slightly different order, addressing the possibilities of applying evil laws (my option one), following one’s conscience and ignoring the law (my option three), resigning (my option two), and cheating (my option four). I consider these in a sequence that first addresses those choices that leave the effect of the evil law intact (i.e., obeying or resigning), and then addresses the choices that prevent application of the evil law in the instant case (i.e., disregarding the law or cheating). 173 See RAND JACK & DANA CROWLEY JACK, MORAL VISION AND PROFESSIONAL

DECISIONS: THE CHANGING VALUES OF WOMEN AND MEN LAWYERS 99-126 (1989) (describing various ethical stances that lawyers take in managing cases, including “subjugation of personal morality”). 174 See Weinstein, supra note 5, at 163-66 (describing the duty of a judge to speak out against unjust laws in opinions). 175 See id., at 166-69 (describing the duty of a judge to speak out against unjust laws via out-of-court speech). 176 See supra notes 92-95 and associated text (describing Judge Cassell’s efforts to redress the injustices of the Angelos case through executive and legislative channels).



noted in the Hungerford opinion that the Ninth Circuit had previously called upon Congress to ameliorate the evils of 18 U.S.C. § 924(c);177 but instead of transforming the statute into a real recidivist law, limiting its application to those cases in which the offender was convicted, served a prison term, and again used a firearm in connection with a crime of violence, Congress increased the mandatory penalty for a subsequent count from twenty years to twenty-five years.178 Criticizing an unjust law while also enforcing it may help to assuage the judge’s conscience, yet because of perverse incentives that exist within the legislative process,179 this action is unlikely to eliminate the evil law or redress the injustice created by its application.

Cover’s second option—resigning—may be attractive to judges who cannot reconcile the objective and unbiased role of the judge with their own unwillingness to accept morally abhorrent outcomes. Resignation allows the conscientious judge to avoid that choice. It also affords the judge an opportunity to stimulate discussion about the unjust law and the appropriate role of judges. When District Judge Lawrence Irving said that he had “a problem with mandatory sentencing in almost every case that’s come before me. . . . I just can’t do it any more,”180 he was but one voice in a cacophony of dissent. However, when he demonstrated his conviction by resigning from the bench, he made a particularly powerful gesture that commanded headlines.181 Similarly, when Judge John S. Martin, Jr. gave up his lifetime appointment, explaining that he could no longer be “part of a sentencing system that is unnecessarily cruel and rigid,”182 and urged the country to “let judges do their jobs,”183 his resignation catalyzed discussion about the appropriate roles for legislators and judges.184 At least two state judges

177 See United States v. Hungerford, 465 F.3d 1113, 1119 (9th Cir. 2006). 178 See id. (“When we urged Congress to reform § 924 and other unnecessarily harsh mandatory sentencing laws, each additional conviction for use of a firearm in connection with a crime of violence under § 924(c) provided for a 20-year mandatory consecutive sentence. Months later, Congress amended § 924(c)(1) to mandate 25-year mandatory consecutive sentences for such offenses.”). 179 See Stuntz, supra note 76, at 510 (suggesting that “the story of American criminal law is a story of tacit cooperation between prosecutors and legislators, each of whom benefits from more and broader crimes, and growing marginalization of judges”). 180 Federal Judge Quits Over Sentencing Rules, CHI. TRIB., Oct. 1, 1990, at 6. 181 Criticizing Sentencing Rules, U.S. Judge Resigns, N.Y. TIMES, Sept. 30, 1990, at A22 (noting also that Judge Irving received dozens of calls from other judges who supported his stand). 182 John S. Martin, Jr., Editorial, Let Judges Do Their Jobs, N.Y. TIMES, June 24, 2003, at A31 (“While I might have stayed on despite the inadequate pay, I no longer want to be part of our unjust criminal justice system.”). 183 Id. 184 See, e.g., Roger B. Adler, Editorial, Tying Judges’ Hands, N.Y. TIMES, July 2, 2003, at A24 (supporting Martin); John Nichols, Judge Resigns over Congressional Meddling, THE

NATION, June 25, 2003, available at http://www.thenation.com/blogs/thebeat?pid=780



also have resigned in protest against draconian sentencing laws.185 Resignation is, however, a Pilate-like solution.186 For this reason,

Weinstein characterizes it as a principled action, but also as a defeat.187 The act of resignation has symbolic value, but it does not itself rectify the moral consequences of the evil law. Abdicating the bench might permit the individual judge to wash his hands of an evil law, absolving him of personal culpability, but as soon as his vacant seat is filled, the injustice wrought by evil laws will still occur. Jews will still be executed for having affairs with German women;188 slaves will still be returned to their owners;189 and first-time offenders will still be sentenced to 159 years in prison for participation in robberies.190 Furthermore, “resignation deprives the bench of some of those who may be most inclined to try to encourage positive changes in controlling law.”191 Sometimes—if a good judge knows that a government apparatchik will fill his vacated seat—it may be just as immoral for him to quit as it would be to impose the immoral sentence.192 Resignation, like applying an immoral law or rejecting the law for one’s conscience, is itself a moral choice.

Thoreau famously enjoined all men to defy wicked laws, writing, “Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?”193 Cover’s third option is a violation of the judge’s role, in which the judge follows his conscience instead of the law, applying the law as it should be instead of as he finds it. In its most blatant form, judicial disobedience is a radical rejection of existing law. Still, it has been suggested that extraordinary circumstances warrant this approach:

Civil disobedience by federal judges is both justified and required

(describing Martin’s resignation and quoting other federal judges who oppose mandatory sentencing); Seth Stern, Federal Judges Rebel over Limits to Sentencing Power, CHRISTIAN SCI. MONITOR, July 8, 2003, available at http://www.csmonitor.com/2003/0708/p02s01-usju.html (describing clash between legislators and judges). 185 See Weinstein, supra note 5, at 140 (describing the resignations of Judge Lois Forer of Pennsylvania and Judge Robert Utter of Oregon). 186 See Matthew 27:24 (describing how Pontius Pilate symbolically washed the responsibility for Christ’s execution from his hands). 187 See Weinstein, supra note 5, at 139. 188 Supra note 23 and associated text. 189 Supra note 37 and associated text. 190 Supra note 101 and associated text. 191 Weinstein, supra note 5, at 140. 192 See Markus Dubber, Judicial Positivism and Hitler’s Injustice, 93 COLUM. L. REV. 1807, 1815 (1993) (noting that some Nazi judges “remained in office to soften the impact of unjust Nazi laws”); Dugard, supra note 6 (refuting the suggestion that South African judges should vacate the bench under apartheid). 193 HENRY DAVID THOREAU, On the Duty of Civil Disobedience, in WALDEN AND CIVIL

DISOBEDIENCE 222, 228 (New American Library ed. 1980) (1849).



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.194

It has been suggested that under such extraordinary conditions, a lower court judge should simply ignore the precedent that would otherwise bind him to an unjust result. Michael Stokes Paulsen has argued that sometimes a lower court judge should defy higher courts, stating, “Go ahead, make my day: reverse me. You’re wrong about the Constitution. You’ve taken your oath of office, but that’s no excuse [for] violating mine. I’m going to follow my oath of office and decide the Constitution correctly as I understand it. If you don’t like it, take cert.”195

If the judge obstinately refuses to apply legitimate laws simply because they offend his conscience, he risks reversal, sanctions, and impeachment.196 But Cover’s third approach need not manifest itself as a blunt rejection of a valid law because it is morally unconscionable. The judge need not appear a defiant Bartleby.197 Rather, his refusal can be more subtle, a matter of affording a legitimized legal weight to certain legal-moral conceptions, akin to Dworkin’s concept of weighted principles,198 and then applying these values to those legal situations involving evil laws. Rawls writes:

[I]f a soldier is ordered to engage in certain illicit acts of war, he may refuse if he reasonably and conscientiously believes that the principles applying to the conduct of war are plainly violated. He can maintain that, all things considered, his natural duty not to be made the agent of grave injustice and evil to another outweighs his duty to obey.199

194 Recent Case, supra note 161, at 1991. 195 Akhil Reed Amar, On Lawson on Precedent, 17 HARV. J.L. & PUB. POL’Y 39, 41 (1994) (citing Michael S. Paulsen, Accusing Justice: Some Variations on the Themes of Robert M.

Cover’s Justice Accused, 7 J.L. & RELIGION 33, 82-88 (1989)). 196 See, e.g., Steven W. Fitschen, Impeaching Federal Judges: A Covenantal and

Constitutional Response to Judicial Tyranny, 10 REGENT U.L. REV. 111 (1998) (calling for expanded use of the impeachment power to remove federal judges who render unconstitutional opinions). 197 See generally HERMAN MELVILLE, BARTLEBY THE SCRIVENER: A STORY OF WALL

STREET (Melville House 2004) (1853) (recounting the story of the eponymous scrivener who, when asked to work, makes a mantra of the phrase “I would prefer not to”). 198 See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 24-26 (1977) (explaining that principles can be weighted while rules operate in an all or nothing manner). 199 JOHN RAWLS, A THEORY OF JUSTICE 380 (1971).



This is not an Augustinian claim that an “unjust law is no law at all.”200 Instead, this approach acknowledges the legal validity of the evil law but maintains that other values must be balanced against it, and recognizes that other values can outweigh fidelity to legitimate laws, all within the framework of the law:

The role of a judge, however, is to articulate value judgments, require reasons for government action, and test to see if the overt justifications offered in support of how law is written and imagined actually cohere with how law is experienced. . . . [J]udges must skillfully articulate shared values, explain their reasons, give empirical information, and expose contradictions and inconsistencies. Only then will the ideas that best conform to our values win out.201

Under this approach, it is insufficient for the judge to plead the Nuremberg defense of “I was following orders” when fundamental moral values such as equality, fairness, and justice are compromised by the blind enforcement of evil laws.202 This, then, is a model of legal philosophy that embraces what Lon Fuller has called the “inner morality of law.”203

This is the type of legal reasoning made transparent in cases such as Riggs v. Palmer204 and MacPherson v. Buick Motor Co.205 In these hard cases, the common law evolved when judges incorporated basic principles of justice into existing rules. Of course, this value-weighting approach may have little real impact in a legal system dominated by positivism. Consider, for example, the district court judges who attempted to defy the mandatory sentencing guidelines. Their decisions have been mechanically overturned by courts of appeals that are unwilling to sacrifice the black letter of law to the more abstract ideal of justice.206

Still, this approach has many advantages. It allows the judge to identify the defects of the unjust law,207 to explain how other constitutional, legal, and moral principles outweigh the command of the unjust law, and permits the judge to remain on the bench instead of abdicating his position to a government apparatchik.208 While a trial judge embracing this approach within a positivist hierarchy of courts

200 See supra note 10 and associated text (describing St. Augustine’s claim). 201 Recent Case, supra note 161, at 1992-93. 202 Cf. supra note 132. 203 See LON FULLER, THE MORALITY OF LAW 70 (rev. ed. 1969). 204 22 N.E. 188 (N.Y. 1889). 205 111 N.E. 1050 (N.Y. 1916). 206 See supra notes 79-81 (describing reversals of district court sentences by courts of appeals). 207 See supra note 174. 208 See supra note 192.



may be overturned and criticized, establishing an accurate record of why the judge has rejected the unjust law is intellectually honest. It allows other jurists to follow his jurisprudential path. Higher courts may not be persuaded and may reverse the decision, but federal judges have life tenure precisely to allow them to make unpopular or difficult decisions.209 This is the core of judicial independence. The trial judge who rejects an unjust law (and explains why) fulfills his oath as a judge.

Cover’s fourth option—judicial cheating—is the one of real jurisprudential significance. Perhaps there are some circumstances under which the laws are so evil that cheating—subverting law to serve justice—is the only moral course available for a good judge. Perhaps there are occasions in which neither applying the unjust law, nor resigning from the bench, nor even overtly rejecting the unjust law are acceptable options. Perhaps it is sometimes necessary to overcome the unjust law within a system dominated by positivism: perhaps the only viable solution is to cheat. Yet when a judge cheats in interpreting an evil law, it is a quite different matter than when a citizen engages in civil disobedience of an evil law. A judge is an official of the court, and, as such, has an affirmative duty to faithfully enforce validly-enacted laws.210 This obligation is qualitatively different from the citizen’s duty to follow the law. The judge’s role is different even from that of a juror, who, when acting in concert with other jurors, has the power—if not the right—to nullify an evil law.211

Judicial cheating is probably rare, reserved for the most egregious

209 See Stephen Shapiro, The Judiciary in the United States: A Search for Fairness,

Independence, and Competence, 14 GEO. J. LEGAL ETHICS 667 (2001). Shapiro writes that: [L]ife tenure is of paramount importance to federal judges. They may be called upon to invalidate acts of Congress, the president, or state lawmakers. They may also be required to make decisions that are extremely unpopular with the voting public, such as requiring school busing to achieve desegregation, abolishing prayer in the schools, or enforcing the constitutional rights of criminal defendants.

Id. at 669. 210 See MODEL CODE OF JUDICIAL CONDUCT, R. 2.2 (2007) (“A judge shall uphold and apply the law.”). “The law” denotes court rules, statutes, constitutional provisions, and decisional law. See id., Terminology. It does not, however, encompass philosophical or moral ends. 211 See Robert F. Schopp, Verdicts of Conscience: Nullification and Necessity as Jury

Responses to Crimes of Conscience, 69 S. CAL. L. REV. 2039, 2113 (1996) (noting that while “judges, like jurors, remain persons who may encounter circumstances in which obligations conflict and no algorithm provides a clear decision rule,” judges have a more compelling obligation to follow the law). Schopp further states that

by virtue of their official roles, judges arguably take stronger obligations to apply the official public morality than do jurors. Judicial decisions ordinarily carry more profound institutional impact. Judges make decisions that carry precedential force, influencing unpredictable numbers of cases and participants in the future. If citizens conclude that judges frequently depart from the public morality in order to conform to their own nonpublic standards, this belief might well erode public confidence in public institutions and undermine voluntary cooperation with those institutions.

Id.



of circumstances. History suggests that many judges flatly refuse to defy the law, even wicked laws. While Austin, Bentham, and Hart all believed that positivists would defy a law if a certain threshold of iniquity were reached, this trio may have underestimated the insidious relationship between authority and obedience.212 Even when some positivists (e.g., northern anti-slavery judges) ached to reject the law, they felt prohibited from doing so.213 They believed that—as judges—they had an obligation to uphold valid laws, and that failing to enforce a valid law would do grave damage to the integrity of the law.

Of course, even if judicial cheating were widespread, we would not know. To be effective, cheating must be done surreptitiously—overt judicial disobedience, even the nuanced incorporation of moral principles, imposes a palpable risk of reversal on appeal (thereby creating limited precedent). If a judge overtly refuses to enforce an evil law, or includes obvious moral principles in coming to a decision, the remainder of the (positivist) legal establishment will simply circumnavigate the decision. Higher courts will overturn the holding, and the legal community will either denounce or ignore the anomalous decision. Therefore, when confronted with an unconscionable law, a conscientious judge may be required to “hide the ball,” make his or her determination on grounds of weighted legal and moral principles,214 and engage in subterfuge, dressing the decision in the more palatable trappings of positivist legal precedent.

To judge cases in this backwards way—to make legal decisions based on abstract, almost intuitive, moral principles—and to superimpose a post hoc body of case law onto the decision is disingenuous. It conceals the real bases of legal judgment, something which seems suspiciously close to violating the pre-eminent principle of legality.215 Yet there may be circumstances in which there is no morally acceptable alternative. There may be circumstances under which neither defiance nor resignation is a viable option to counter an evil law. It is possible that there are circumstances so egregious that good judges may be forced to cheat, obfuscating the bases of their deliberations, in order to arrive at a just outcome.

212 See supra notes 148-149 and associated text (describing Milgram’s study of obedience to authority). 213 See Maura Strassberg, Taking Ethics Seriously: Beyond Positivist Jurisprudence in Legal

Ethics, 80 IOWA L. REV. 901, 921 (1995) (arguing that abolitionist judges, as positivists, had a formalist conception of their judicial role and therefore believed that “moral concerns cannot and should not enter into the determination of the law”). 214 Presumably, one of the values to be incorporated into the calculus is the importance of making decisions based on clear and articulated grounds. 215 See HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 79-80 (1968) (characterizing legality, the rule that one cannot be punished for a crime until it has been published as a law, as the first principle of American jurisprudence).



CONCLUSION

The horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the docks; all they see is the usual man in the usual place. They do not see the awful court of judgment; they see only their own workshop.216

Judges should endeavor to apply the laws of their society. That is

the duty of a judge. Yet judges must not forget that law is a means to an end, and not an end in itself. They must not become myopically fixated upon the minutiae of this statute or that rule, and forget that the end of law is justice. Conscientious judges must remain ever vigilant against cognitive dissonance, the obedience to malignant authority, and the seductions of groupthink. They must remain alert to the moral consequences of their decisions, and remember always that human lives are changed in the courtroom.

When they are confronted with evil laws, good judges may feel compelled to cheat. They must then draw from the reservoir of their society’s legal and moral principles and weigh these against the legal requirements of evil law. This they should do transparently whenever possible. In a system completely dominated by legal positivism, however, good judges may even be required to do so in secrecy. In such situations, adjudication is likely to be a difficult—even painful—process for conscientious judges. But judgments are always difficult when good judges are confronted with constitutional evils. The Northern anti-slavery judges surely wrestled with their consciences, and contemporary federal judges struggle with theirs, as well. It is undoubtedly difficult to judge cases involving evil laws, but as Radbruch so ardently insisted, doing so with one’s eyes wide open can make all the difference.

216 BOGIRA, supra note 162, at vii (quoting G. K. Chesterton).

the antigone dilemma: when the paths of law and morality diverge

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