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.
In brief, the Court offered what Justice Alito, dissenting in part, characterized as a “paen to that old regime” of highly discretionary, individualized sentencing. For instance, here is the very first sentence of Justice Sotomayor’s opinion for the majority:
The Court has long recognized that sentencing judges “exercise a wide discretion” in the types of evidence they may consider when imposing sentence and that “[h]ighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Williams v. New York, 337 U.S. 241, 246-47 (1949).
The citation to Williams is telling. The 1949 case is widely seen as emblematic of the Court’s hands-off approach to sentencing issues in the era when criminal law was dominated by the rehabilitative ideal — sentencing judges had to be given almost unlimited discretion at sentencing in order to weigh each defendant’s treatment needs and prospects.
The Pepper Court went on at some length regarding this tradition of discretionary, individualized sentencing before getting to the real issues in the case. That tradition, of course, predates the Sentencing Reform Act of 1984, which was intended to overturn the Williams regime. The Court then overturned the SRA in 2005 in Booker v. United States. But Booker didn’t offer a clear alternative vision to the SRA, and subsequent cases have hardly embraced the pre-SRA, Williams-era model.
Instead, what seemed to be emerging from the Court’s 2007 trilogy of Rita, Kimbrough, and Gall 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 — sometimes emphasizing deference to the district court and sometimes emphasizing deference to the Commission, as appropriate in the circumstances. This vision is quite close in spirit to the basic sentencing framework embraced by the Court in 1996 in Koon v. United States, which relied on an earlier First Circuit decision (United States v. Rivera) authored by then-Judge Breyer. Breyer, I suspect, continues to be the Court’s chief proponent for this vision, which also comes through in his opinion for the majority in Rita. Breyer’s concurring opinion in Pepper once again pushes this vision.
But no one joined Breyer’s opinion in Pepper — that is surprising to me.
Although there are now quite a few Booker progeny cases, I can’t recall any so whole-heartedly embracing district-judge discretion as an affirmative value and treating Sentencing Commission expertise so dismissively. I wonder if Justice Sotomayor is driving this. Not only is she the author of Pepper, but she is the only justice who participated in Pepper who was not around for the 2007 trilogy that gave greater weight to Commission expertise.
Is there a fundamental shift taking place in the Court’s thinking about federal sentencing? I suppose that may depend in part on where Justice Kagan comes out, which remains a mystery — she sat out Pepper.
Onto the legal analysis. The main question in Pepper was whether 18 U.S.C. § 3742(g)(2) survived Booker. The Court held that it did not. The statutory provision prohibits a sentence outside the applicable Guidelines range on resentencing unless it is based on a ground that was “specifically and affirmatively included in the written statement of reasons” provided for the original sentence. Although the provision says nothing on its face about post-sentencing rehabilitation, the provision effectively precludes a below-Guidelines sentence based on that factor since post-sentencing rehabilitation, by definition, cannot be mentioned by the judge at sentencing. In Pepper, the Court held that § 3742(g)(2) violated Booker since it has the effect of making the Guidelines mandatory in certain cases. For instance, if a judge declined to sentence below the Guidelines because the 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 § 3742(g)(2) to impose the Guidelines sentence on remand — the advisory Guidelines would then become effectively mandatory by virtue of § 3742(g)(2). Although the Pepper 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 § 3742(g)(2) entirely.
And good riddance to § 3742(g)(2) — a sorry relic from Congress’s misguided assault on judicial discretion in the 2003 PROTECT Act.
Note, however, that jettisoning § 3742(g)(2) does not necessarily work to the advantage of defendants. Now, not only may the judge take post-sentencing rehabilitation into account, but also post-sentencing misconduct that potentially warrants a sentence above the Guidelines. Defendants will be well advised to be on their best behavior while their appeals are pending!
The other big question the Pepper Court had to deal with was how much weight, if any, to give to the Sentencing Commission’s statement in § 5K2.19 of the Guidelines that post-sentencing rehabilitation is not an appropriate ground for a below-Guidelines sentence. To my mind, the Court was surprisingly dismissive of the Commission’s views:
[A] district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views. That is particularly true where, as here, the Commission’s views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted.
“Wholly unconvincing?” That’s strong language, but probably deserved here. I 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.
In the end, the Court did not provide much clear guidance on when sentencing judges may reject the Commission’s 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.
So, Pepper will get yet another resentencing, at which his post-sentencing rehabilitation may be considered — the Court gave its permission, but did not require the resentencing judge to attach any particular significance to his impressive record in turning his life around.