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December 6, 2010

Will SCOTUS create any new law for resentencing in Pepper?

This morning, the Supreme Court will hear oral argument in Pepper v. United States, which is a procedurally complicated case that raises some very basic issues about modern federal sentencing and federal resentencing (basic background here from SCOTUSblog).  I will be very interested to see what issues in the case become the focus of oral argument (and I will post the transcript when it becomes available later today).

Pepper has not be the focus of too much attention and advocacy in part because it is procedurally complicated and perhaps also because the defendant and the Government are on the same side on the chief substantive question posed by the case: whether post-sentencing rehabilitation is a permissible sentencing factor at a resentencing.  Nevertheless, as I sought to explain in this preview of Pepper that I put together for the ABA, even a narrow ruling in Pepper will not prevent it from becoming the most important modern Supreme Court decision on resentencing proceedings.  Here is a paragraph's from my ABA preview explaining why this is so, and a follow-up paragraph highlighting why Pepper could end up being a sentencing sleeper:

Still, even if the justices seek to confine the scope and reach of their ruling in Pepper, this case will still be important and consequential to the hundreds of federal resentencing proceedings that take place every year. The basic ground rules for resentencings have been largely created by circuit courts; any distinctive aspects of the Supreme Court’s ruling in Peppermight directly alter these resentencing ground rules for district courts and could even indirectly impact how circuit courts conduct and resolve sentencing appeals.

Though the precise legal issues before the Court in Pepper are relatively narrow, the sympathetic facts presented by the defendants and the broader sentencing policy issues raised in the briefs might well prompt some of the justices to use Pepper to opine more broadly on the current state and potential future direction of the federal sentencing system.

Some prior posts on the Pepper case:

UPDATE: The transcript of the oral argument in Pepper v. United States is now available here.

December 6, 2010 at 09:52 AM | Permalink


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