{"id":12942,"date":"2011-03-02T23:38:00","date_gmt":"2011-03-03T04:38:00","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=12942"},"modified":"2011-03-02T23:42:23","modified_gmt":"2011-03-03T04:42:23","slug":"scotus-says-judge-may-consider-post-sentencing-rehabilitation-at-resentencing","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/03\/scotus-says-judge-may-consider-post-sentencing-rehabilitation-at-resentencing\/","title":{"rendered":"SCOTUS Says Judge May Consider Post-Sentencing Rehabilitation at Resentencing"},"content":{"rendered":"

In a new decision earlier today,\u00a0Pepper v. United States <\/em>(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.\u00a0 This may sound like a very technical question of criminal procedure, but the facts in\u00a0Pepper <\/em>nicely illustrate the human dimension to the question.\u00a0 Pepper was convicted of meth trafficking and faced a Guidelines sentence of 97-121 months.\u00a0 The judge\u00a0departed downward, however,\u00a0and\u00a0imposed a sentence of 24 months.\u00a0 In June 2005, the Eighth Circuit reversed and remanded for resentencing.\u00a0 In the interim, Pepper completed his 24 months and was released.\u00a0 In May 2006, the district held a resentencing hearing, at which much evidence was presented of Pepper\u2019s successful post-sentencing rehabilitation, including completion of drug treatment, commencement of college courses, and part-time employment.\u00a0 Pepper\u2019s probation officer recommended that the original sentence be reinstated, and the district judge agreed.\u00a0 The government appealed, and the Eighth Circuit again reversed, ruling that post-sentencing rehabiltiation was an impermissible sentencing factor.\u00a0 The case then bounced around inconclusively in the court system for several years before finding its way to the Supreme Court.\u00a0 Pepper, still free,\u00a0has apparently continued to do quite well in school and work.\u00a0 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.<\/p>\n

In holding that post-sentencing rehabilitation is a permissible\u00a0consideration at resentencing, the Court addressed a couple of notable legal questions.\u00a0 What is perhaps most remarkable about\u00a0Pepper<\/em>, however, is not the legal analysis, but the prefatory rhetoric with which it was framed.<\/p>\n

<\/p>\n

In brief, the Court offered what Justice Alito, dissenting in part, characterized as a \u201cpaen to that old regime\u201d of highly discretionary, individualized sentencing.\u00a0 For instance, here is the very first sentence of Justice Sotomayor\u2019s opinion for the majority:<\/p>\n

The Court has long recognized that sentencing judges \u201cexercise a wide discretion\u201d in the types of evidence they may consider when imposing sentence and that \u201c[h]ighly relevant \u2014 if not essential \u2014 to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant\u2019s life and characteristics.\u201d\u00a0\u00a0Williams v. New York<\/em>, 337 U.S. 241, 246-47 (1949).<\/p><\/blockquote>\n

The citation to\u00a0Williams <\/em>is telling.\u00a0 The 1949 case is widely seen\u00a0as emblematic of\u00a0the Court\u2019s hands-off approach\u00a0to sentencing issues in the era when criminal law was dominated by the rehabilitative ideal \u2014 sentencing judges had to be given almost unlimited discretion at sentencing in order to weigh each defendant\u2019s\u00a0treatment needs and prospects.<\/p>\n

The\u00a0Pepper<\/em> Court went on at some length regarding this tradition of discretionary, individualized sentencing before getting to the real issues in the case.\u00a0 That tradition, of course, predates the Sentencing Reform Act of 1984, which was intended to\u00a0overturn the\u00a0Williams<\/em>regime.\u00a0 The Court then overturned the SRA in 2005 in\u00a0Booker v. United States<\/em>.\u00a0 But\u00a0Booker <\/em>didn\u2019t offer a clear alternative vision to the SRA, and subsequent cases have hardly embraced the pre-SRA,Williams<\/em>-era\u00a0model.<\/p>\n

Instead, what seemed to be emerging from the Court\u2019s 2007 trilogy of\u00a0Rita<\/em>,\u00a0Kimbrough,<\/em> and\u00a0Gall <\/em>was a pragmatic vision of sentencing as a shared responsibility of district judges and the Sentencing Commission, with appellate courts recognizing and respecting the particular institutional strengths and weaknesses of both \u2014 sometimes emphasizing deference to the district court and sometimes emphasizing deference to the Commission, as appropriate in the circumstances.\u00a0 This\u00a0vision is quite close in spirit to the basic sentencing framework embraced by the Court in 1996 in\u00a0Koon v. United States<\/em>, which relied on an earlier First Circuit decision (United States v. Rivera<\/em>)\u00a0authored by then-Judge Breyer.\u00a0 Breyer, I suspect, continues to be the Court\u2019s chief proponent for this vision, which also comes through in his opinion for the majority in\u00a0Rita<\/em>.\u00a0 Breyer\u2019s concurring opinion in\u00a0Pepper <\/em>once again pushes this vision.<\/p>\n

But no one joined Breyer\u2019s opinion in\u00a0Pepper \u2014 <\/em>that is surprising to me.<\/p>\n

Although there are now quite a few\u00a0Booker <\/em>progeny cases, I can\u2019t recall any so whole-heartedly embracing district-judge discretion as an affirmative value\u00a0and treating Sentencing Commission expertise so dismissively.\u00a0 I wonder if Justice Sotomayor is driving this.\u00a0 Not only is she the author of\u00a0Pepper<\/em>, but she is the only justice who participated in\u00a0Pepper <\/em>who was not around for the 2007 trilogy that gave greater weight to Commission expertise.<\/p>\n

Is there a fundamental shift taking place in the Court\u2019s thinking about federal sentencing? \u00a0I suppose that may depend in part on where Justice Kagan comes out, which remains a mystery \u2014 she sat out\u00a0Pepper<\/em>.<\/p>\n

Onto the legal analysis.\u00a0 The main question in\u00a0Pepper <\/em>was whether 18 U.S.C. \u00a7 3742(g)(2) survived\u00a0Booker<\/em>.\u00a0 The Court held that it did not.\u00a0 The statutory provision prohibits a sentence outside the applicable Guidelines range on resentencing unless it is based on a ground that was \u201cspecifically and affirmatively included in the written statement of reasons\u201d provided for the original sentence.\u00a0 Although the provision says nothing on its face\u00a0about post-sentencing rehabilitation,\u00a0the provision\u00a0effectively precludes a below-Guidelines sentence based on that factor since post-sentencing rehabilitation, by definition, cannot be mentioned by the judge at sentencing.\u00a0 In\u00a0Pepper<\/em>, the Court held that\u00a0\u00a7 3742(g)(2) violated\u00a0Booker <\/em>since it has the effect of making the Guidelines mandatory in\u00a0certain cases.\u00a0 For instance, if\u00a0a judge\u00a0declined to\u00a0sentence below the Guidelines because\u00a0the judge erroneously believed that she could not consider a particular mitigating factor, and the judge was then reversed on appeal, the judge would still be required by\u00a0\u00a0\u00a7 3742(g)(2) to impose the Guidelines sentence on remand \u2014 the advisory Guidelines would then become effectively mandatory by virtue of\u00a0\u00a0\u00a7 3742(g)(2).\u00a0 Although the\u00a0Pepper <\/em>Court might have made some distinctions and held the statute constitutional in some circumstances but not others, the Court chose as a matter of administrative convenience to throw out\u00a0\u00a0\u00a7 3742(g)(2) entirely.<\/p>\n

And good riddance to \u00a7 3742(g)(2) \u2014 a sorry relic from Congress\u2019s misguided assault on judicial discretion in the 2003 PROTECT Act.<\/p>\n

Note, however, that jettisoning \u00a7 3742(g)(2)\u00a0does not necessarily work to the advantage of defendants.\u00a0 Now, not only may the judge take post-sentencing rehabilitation into account, but also post-sentencing misconduct that potentially warrants a sentence\u00a0above <\/em>the Guidelines.\u00a0 Defendants will be well advised to be on their best behavior while their appeals are pending!<\/p>\n

The other big question the\u00a0Pepper<\/em> Court had to deal with was how much weight, if any, to give to the Sentencing Commission\u2019s statement in \u00a7 5K2.19 of the Guidelines that post-sentencing rehabilitation is not an appropriate ground for a below-Guidelines sentence.\u00a0 To my mind, the Court was surprisingly dismissive of the Commission\u2019s views:<\/p>\n

[A] district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission\u2019s views.\u00a0 That is particularly true where, as here, the Commission\u2019s views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted.<\/p><\/blockquote>\n

\u201cWholly unconvincing?\u201d \u00a0That\u2019s strong language, but probably deserved here. \u00a0I imagine the phrase will now be used extensively in briefs by defendants in other cases arguing that other aspects of the Guidelines, such as the child pornography provision, should not be followed by sentencing judges.<\/p>\n

In the end, the Court did not provide much clear guidance on when sentencing judges may reject the Commission\u2019s policy choices, but the general tone of the opinion seems to suggest that judges have more freedom in this regard than some appellate courts have been assuming.<\/p>\n

So, Pepper will get yet another resentencing, at which his post-sentencing rehabilitation\u00a0may <\/em>be considered \u2014 the Court gave its permission, but did not\u00a0require <\/em>the resentencing judge to attach any particular significance to his impressive record in turning his life around.<\/p>\n

Cross posted at Life Sentences Blog<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

In a new decision earlier today,\u00a0Pepper 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.\u00a0 This may sound like a very technical question of criminal procedure, but the facts in\u00a0Pepper nicely illustrate the human dimension to the question.\u00a0 […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,28,74,24],"tags":[],"class_list":["post-12942","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-criminal-law-process","category-federal-sentencing","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/12942","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=12942"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/12942\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=12942"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=12942"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=12942"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}