March 7, 2011
The Feng Shui of Pepper
As predicted here in December, sort of, the U.S. Supreme Court partially reversed the Eighth Circuit last Wednesday in Pepper v. United States. (See Pepper). (This post will not concern itself with the "law of the case" part of Pepper, in which the Eighth Circuit was upheld.) The Eighth Circuit's deeply baffling and inhumane decision, flatly prohibiting sentencing courts from considering any evidence of a defendant's post-sentencing rehabilitation in cases remanded from the courts of appeals, not only resulted in the re-incarceration of a fully rehabilitated offender. It also blithely ignored a plethora of recent Supreme Court sentencing case law. The Supreme Court opinion (a majority opinion) by Justice Sotomayor is a ringing reaffirmation of the principle that sentencing courts can and must consider, in the words of Williams v. New York, "the fullest information possible concerning the defendant's life and characteristics."
The Court established in Booker, and reiterated in Gall and Kimbrough, that a sentencing court has broad discretion to consider nearly every aspect of a particular case (and a particular defendant) in fashioning an appropriate sentence. "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Gall, 552 U.S. at 52 (citing Koon v. United States, 518 U.S. 81, 113 (1996)).
Justice Sotomayor cited the above language from Koon and Gall and made it a centerpiece of her opinion in Pepper. The Eighth Circuit's decision was so bad that even the government confessed error. The Court ruled that 18 U.S.C. Section 3742 (g)(2), which prohibits, in most instances, a sentencing court from sentencing outside the original Guidelines range upon remand, is unconstitutional. (But the Eighth Circuit had not relied on or cited this statute in its opinion below.) The Court clarified, once again, that sentencing courts are free to disagree with Guidelines policy statements.
Pepper will obviously benefit white collar offenders, as it re-affirms the broad power of sentencing courts under the Booker-Gall-Kimbrough regime and re-emphasizes their power and duty to consider evidence pertaining to each defendant's unique personal circumstances. One of the most important things about Justice Sotomayor's opinion is that it is a solid majority opinion (5 out of 8 justices) in favor of continuing the Booker-Gall-Kimbrough line.
Justice Sotomayor's opinion is remarkably restrained, given that the Eighth Circuit's sub silentio defiance of Booker-Gall-Kimbrough principles resulted in the 18 month re-incarceration of a fully rehabilitated offender who had painstakingly put his life back together.
It is difficult to read Justice Breyer's concurrence as anything other than a signal to the lower courts to continue to interpret the Booker-Gall-Kimbrough line in as cramped a manner as possible. How unfortunate if it causes other federal circuits to repeat the Eighth Circuit's tragic mistake.
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