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December 11, 2010

SCOTUS takes up whether longer federal sentence permitted to promote rehabilitation

As detailed in this effective SCOTUSblog report, late yesterday the Supreme Court released an orders list which adds an interesting new federal sentencing case to the Court's docket.  Here are the details as well reported by Lyle Denniston:

The new criminal sentencing case the Court agreed to review is Tapia v. U.S. (10-5400), testing whether a federal judge may give a convicted individual a longer prison sentence to promote rehabilitation. That issue has divided the federal Circuit Courts, the petition argued. The Court already is reviewing an aspect of the rehabilitation question in federal sentencing — in the case of Pepper v. U.S. (09-6822).  The Justices, in fact, heard the Pepper case just last Monday.

The question before the Court in Pepper is whether a convicted individual who makes considerable strides in rehabilitating himself after his initial sentencing should have a chance to have a reduction in the sentence under the federal advisory Sentencing Guidelines, if the first sentence was overturned.  That is different from the situation with Alejandra Tapia in the newly granted case.  The issue there is, when the judge has decided that prison time is an appropriate sentence, whether the term can be lengthened to improve the individual’s chances of rehabilitation.  The petition argued that the Eighth and Ninth Circuits allow the use of that factor, in conflict with the Second, Third, Eleventh and D.C. Circuits, which do not.

The Justice Department, which supports Jason Pepper in the case already under review, told the Court that it agreed with Tapia’s view of what federal law allows, but nevertheless urged the Court not to hear the Tapia petition.  Acting Solicitor General Neal K. Katyal said that the Justice Department had sometimes supported the view that rehabilitation needs could be a factor in giving a longer sentence, but it no longer will take that position.  The Court, Katyal said, should allow the Circuit Courts to weigh the Department’s new views.

The Court, however, went ahead and agreed to hear the Tapia case this Term.  The woman in the case was convicted of bringing illegal aliens into the U.S. and of jumping bail after being charged with immigration crimes.  The judge said one factor in giving her a longer sentence was to make sure she remained confined long enough to take part in a drug rehab program.

After reading the Pepper transcript (which I commented upon here at SCOTUSblog), I had thought that the Court would resolve that case with a fairly limited opinion. But the Court's decision to take up Tapia now leads me to believe that the Justices may be eager to say a lot about the interplay of punishment theory and federal sentencing law in the post-Booker sentencing world.  Slowly but surely, this Term is becoming more interesting for sentencing fans than I had expected back in October.

December 11, 2010 at 08:24 AM | Permalink


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So length of sentences could now be decreed by rehabilitative prison programs. Sort of a dangerous road.

Anyway, the lack of parole on federal sentences speaks to a punitive and not a rehabilitative approach to sentencing.

Posted by: Robert | Dec 11, 2010 5:20:02 PM

All sentences are puntive -- it depend on making lemondade out of lemons. It is a dangerous road. . . I represent clients all the time who will and have benefited from BOP programs.

Problem #1 eligibilty -- drug fiends who have short sentences aren't eligible for BOP programs that result in a reduction in sentencing. The length of their particular sentence makes them ineligible for the sentence reduction. In some situations a longer sentence would help them get the treatment they need.

Problem #2 Post sentence rehab to mitigate on resentencing -- when a reversal of conviction or sentence has been obtained I have always gotten as least something less on remand at resentencing if the client has availed him or herself of the programatic advantages.

Some tomes rehab can be acheived by longer sentences.
The point is recognizing the situation and thinking it through. I know some District Judges who not only think but act/ A rariety

Posted by: Z | Dec 11, 2010 11:18:19 PM

Does 18 U.S.C. Sec. 3582(a) answer the question about using prison for rehabilitation? It says:

The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.

I am a defense lawyer.

Posted by: Wallace Taylor | Dec 12, 2010 10:23:07 AM


IMO, 3582(a) does answer the question. However, I think it is safe to say that the central issue in this case will be a debate over what 3582(a) exactly means and what does it prohibit, especially in a post-Booker world. It is similar to Pepper in that, there, central to the case was what does 3742(g) prohibit and what does that statute mean in the post-Booker world.

I find it interesting that the Justices had distributed this case for conference four times, but only granted cert after Pepper's oral argument. It may be pure coincidence, but an interesting fact nonetheless.

Posted by: DEJ | Dec 12, 2010 6:02:11 PM

I am currently organizaing this into a case note and have found some secondary sources, but I was wondering do you know of some strong secondary sources that deal with sentencing reform.

Posted by: Shermarial levine | Feb 23, 2011 10:49:56 AM

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