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December 5, 2010

"A defendant must be sentenced based on who he is, not just who he was."

The title of this post is a line from the argument in this amicus brief from Families Against Mandatory Minimums filed in Pepper v. United States, the federal resentencing case to be argued before the Supreme Court tomorrow (basic background herefrom SCOTUSblog).   I hope to provide some links to some previews of the Pepper case in a subsequent post, but I wanted to first highlight and encourage discussion about this simple (and arguably controversial?) idea about sentencing.

Pepper is so interesting because it is the first case in a long time that I can remember the Supreme Court addressing proof and procedure issues surrounding a resentencing.  And the line quoted in this post's title assert that it is imperative that all relevant facts surrounding a defendant at sentencing must be considered at such a resentencing.  For anyone with a utilitarian sentencing philosophy (like me), this assertion seems exactly right as an imperative.  But I suspect that not all those who embrace a retributivist sentencing view would agree.  Indeed, I could imagine some retributivist going so far as to assert that a defendant must only be sentenced based on who he was and what he did at the time of the crime, not based on what he does and who he may become thereafter.

In other words, I think Pepper may raise some deep punishment philosophy issues because it seems possible that the adoption of one particular theory of punishment (or belief that Congress adopted one particular punishment theory for these purposes) would be dispositive concerning how the case is to be resolved.  Do others agree and/or see the core issue in Pepper similarly?

December 5, 2010 at 01:08 PM | Permalink


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So let's say a defendant being resentenced prior to resentencing saved a prison guard's life---would that be irrelevant as a matter of law?

And what's the difference between post-sentencing facts and post-crime facts? If we're sentencing people for the crimes they committed, then why would they get the benefit of post-crime rehabilitation? If we're not, then why do we draw the line--freezing the possible evidence at the first sentencing.

Now I get that there are putative issues of "fairness", i.e., why should a criminal who has his sentence overturned get a better deal than those who don't. But if the idea is getting to the most accurate assessment of what someone should get, then isn't that an unfairness we have to live with?

Posted by: federalist | Dec 5, 2010 1:26:18 PM

The goal is to sustain social order. To do this, decision-makers have to access the problem. Start by priming the jeopardy argument. This is done by finding that the person committed a crime, which is the priming premise of the argument. The base premise follows; namely, that the person’s crime is the core part of a criminal offense. It follows that the offender is a criminal offender, which is the conclusion to the jeopardy argument.

Decision-makers respond to each premise and the conclusion of each jeopardy argument, by formulating the components of a deprivation module in a reasoned social control plan. The most restrictive component in a deprivation module is determinative at any given point in time. The less restrictive components are nested within the more restrictive components as to level of restraint. In this way all of the state’s social control objectives are accomplished in each case.

Offenders are sentenced for what they did and who they are.

Posted by: Tom McGee | Dec 5, 2010 2:18:55 PM

As for Congress, I would say there is plenty of evidence that we do not have any sort of coherent philosophy of criminal sentencing. There are numerous and conflicting forces at work with the ultimate sentence somehow supposed to be a balance of those divergent goals. And that balance supposed to be based on each offender. Sometimes with the most risky offenders the need to protect the community completely overrides any other concerns that sentencing might look at. Other times there is little risk and reintegrating the offender is more important than public security.

Posted by: Soronel Haetir | Dec 5, 2010 11:16:38 PM

North Carolina's Felony Murder Rule doesn't allow for sentencing a person for who he or she was at the time of the crime. Actually, if who the person (history: childhood, reputation & criminal history, job,and near future financial gain)was considered and compared to who the victim(s)were (history: childhood, reputation & criminal history, job etc.) then, not only would sentecing be affected but the verdict or guilty or innocence would be as well.

Posted by: Random Reader | Dec 6, 2010 2:51:09 PM

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