Ex-Inmate’s Rehab Should Bear on Resentencing

     (CN) – Judges may consider a defendant’s post-sentencing rehabilitation when weighing sentencing reductions, the Supreme Court ruled on Wednesday, adding yet another kink to a case that has a long and tangled history before it.




     Wednesday’s decision also gives newly assigned judges freedom to depart from their predecessors’ sentencing rationale.
     Jason Pepper had been arrested in 2003 and pleaded guilty in Iowa to methamphetamine drug distribution conspiracy charges.
     Prosecutors recommended that the judge should shave 15 percent off the mandatory minimum when sentencing Pepper, in light of the 25-year-old’s cooperation with authorities.
     Instead, the judge elected to shrink the sentence by 75 percent to just 24 months. Under the mandatory minimum, Pepper could have served 10 years, but he was eligible for a lower minimum of about five to eight.
     The government appealed, and the 8th Circuit remanded the case for resentencing. At that point, Pepper had finished his two-year sentence and began supervised release.
     By the time Pepper appeared before the federal judge in Iowa for resentencing about a year later, he was sober, in school and working – a marked improvement from where he was in 2003. This time, the court elected to keep the original sentence in tact by granting a 40 percent downward departure on the minimum, coupled with a 59-percent downward variance based on Pepper’s present rehabilitation.
     In the ruling the judge had noted that sending Pepper back to prison would not advance any sentencing policy or guidelines.
     But the government appealed again, and the 8th Circuit again ordered that Pepper face resentencing because it found the trial court’s consideration of post-sentencing rehabilitation improper.
     At this point, in 2008, the Supreme Court stepped in for the first time. It vacated the circuit’s latest ruling and remanded the case for further consideration in light of two of the high court’s latest decisions. On remand, the St. Louis-based federal appeals court decided that those decisions did not alter its prior conclusions.
     Pepper still needed to be resentenced, that court found. By the time he appeared in Iowa for his second resentencing hearing, Pepper had received a promotion at work, was still in school, had gotten married, and was supporting his wife and her child.
     Unmoved, the court’s chief judge said Pepper only merited a 20 percent sentencing reduction on the minimum, and upped his sentence to five years.
     The federal appeals court affirmed that sentence, finding that it would have been impermissible for the judge to have considered his post-sentencing rehabilitation. It also ruled that the judge did not have to match the 40 percent reduction granted in Pepper’s first resentencing.
     Justice Sonia Sotomayor, writing for the majority on Wednesday, said the court was only partly right and partially vacated the circuit’s decision. The justices heard oral arguments on the case in December.
     “In light of the federal sentencing framework described above, we think it clear that when a defendant’s sentence has been set aside on appeal and his case remanded for resentencing, a District Court may consider evidence of a defendant’s rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory guidelines range,” Sotomayor wrote.
     “A categorical bar on the consideration of postsentencing rehabilitation evidence would directly contravene [congressional intent],” the ruling continues.
     The majority found that Pepper’s “exemplary” post-jail conduct has made it unlikely that he will reoffend, and directed the court in Iowa “to consider and give appropriate weight to” all the evidence of rehabilitation it ignored in 2009, as well as any new developments in that area. The judge can keep the 20 percent reduction if necessary after considering all the evidence.
     Justices Stephen Breyer and Samuel Alito joined in the lead opinion only partly. Both filed separate opinions, with Alito dissenting in part. Justice Clarence Thomas filed a dissenting opinion. Justice Elena Kagan did not participate in the court’s consideration or decision of the case.

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