SCOTUS Says Judge May Consider Post-Sentencing Rehabilitation at Resentencing

In a new decision earlier today, Pepper v. United States (No. 09-6822), the United States Supreme Court ruled that federal district judges may consider post-sentencing rehabilitation when a case is remanded for resentencing.  This may sound like a very technical question of criminal procedure, but the facts in Pepper nicely illustrate the human dimension to the question.  Pepper was convicted of meth trafficking and faced a Guidelines sentence of 97-121 months.  The judge departed downward, however, and imposed a sentence of 24 months.  In June 2005, the Eighth Circuit reversed and remanded for resentencing.  In the interim, Pepper completed his 24 months and was released.  In May 2006, the district held a resentencing hearing, at which much evidence was presented of Pepper’s successful post-sentencing rehabilitation, including completion of drug treatment, commencement of college courses, and part-time employment.  Pepper’s probation officer recommended that the original sentence be reinstated, and the district judge agreed.  The government appealed, and the Eighth Circuit again reversed, ruling that post-sentencing rehabiltiation was an impermissible sentencing factor.  The case then bounced around inconclusively in the court system for several years before finding its way to the Supreme Court.  Pepper, still free, has apparently continued to do quite well in school and work.  The question now is whether he must nonetheless be returned to prison after five years in the community, which would likely wreck much of what he has accomplished for himself and his family.

In holding that post-sentencing rehabilitation is a permissible consideration at resentencing, the Court addressed a couple of notable legal questions.  What is perhaps most remarkable about Pepper, however, is not the legal analysis, but the prefatory rhetoric with which it was framed.

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Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography

The federal death penalty is plagued by two important types of disparity.  One is racial: as of last year, nearly half of federal death row inmates (28 of 57) were black.  The other is geographic: out of the 94 federal districts, just 16 have produced 75 percent of the death sentences, and nine have produced nearly half.  Although both disparities have been much commented on separately, it seems they are actually connected.  Or so argue G. Ben Cohen and Robert J. Smith in an interesting new paper, “The Racial Geography of the Federal Death Penalty,” 85 Wash. L. Rev. 425 (2010).

Their thesis is simply stated.  A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall.  Think diverse urban cores surrounded by lily-white suburbs.  Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries.  Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.  This, in turn, drives both the racial and geographic disparities in federal death sentences.

The patterns are striking. 

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Preview of Sykes, the Supreme Court’s Latest ACCA Case

The Supreme Court will hear argument on January 12 in Sykes v. United States, the latest entry in its recent series of cases on the Armed Career Criminal Act.  This case may provide a good opportunity for the Court to clarify what state of mind is required for a prior conviction to trigger the ACCA’s fifteen-year mandatory minimum.  (For background on the ACCA, see my posts here, here, and here.)

The Court created the state-of-mind problem in Begay v. United States, 553 U.S. 137 (2008), which held that a prior conviction does not count as a “violent felony” under the ACCA unless the crime was “purposeful, violent, and aggressive.”  This is a rather mysterious phrase.  Although the word “purposeful” is a familiar culpability term, it is not clear what “violent” and “aggressive” are meant to connote in this context.  And even “purposeful” has some ambiguity, as any law student who has ever wrestled with the elusive distinction between “general intent” and “specific intent” will tell you.

Begay itself indicated that DUI does not satisfy the PVA test because DUI is a strict liability offense.  This teaches that some culpability is indeed required for an offense to count as a “violent felony,” but Begay provided little guidance beyond that.

Then came Chambers v. United States, 129 S. Ct. 687 (2009).  

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