« "Beyond Rehabilitation: A New Theory of Indeterminate Sentencing" | Main | SCOTUS opinion in Pepper shows how/when/why courts can reject the FSG »

March 2, 2011

SCOTUS rules in Pepper, again stressing sentencing discretion after Booker

The Supreme Court handed down its biggest federal sentencing case of the Term to date, ruling in the Peppercase about the consideration of post-sentencing rehabilitation at a federal resentencing proceeding.  The full opinion is available at this link, and here are the (no-so-simple) basics of the ruling in terms of how the Justices voted:

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and GINSBURG, JJ., joined, and in which BREYER and ALITO, JJ., joined as to Part III.  BREYER, J., filed an opinion concurring in part and concurring in the judgment.  ALITO, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part.  THOMAS, J., filed a dissenting opinion.  KAGAN, J., took no part in the consideration or decision of the case.

Here is the key paragraph from the start of the opinion for the Court by Justice Sotomayor: 

We hold that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.  Separately, we affirm the Court of Appeals’ ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s prior sentencing.

The ultimate outcome here is not too surprising, but there seems to be a lot of "there there" in this opinion.  (For example, the first part of the opinion of the Court stresses the old 1949 Williams ruling and repeats over and over that federal judges even after modern sentencing reforms have broad discretion to consider all factors relating to the defendants.)  Blog posts will follow with some quick thoughts and perhaps some deeper thoughts in the hours and days ahead.

March 2, 2011 at 10:12 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference SCOTUS rules in Pepper, again stressing sentencing discretion after Booker:


How about equal protection for those people who, while the case is bouncing around after sentencing, are in the pokey and have limited opportunity for post-sentencing rehabilitation? I like the result in the case itself, but I think that this gives defendants another powerful opportunity to argue for release while the appeal is pending.

Posted by: Jack Townsend | Mar 2, 2011 3:27:43 PM

I'm an advocate for the release of James H. Gresham and have been trying for
10 years to bring qualified defense to his case and incarceration.

Jimmy has been in federal prison since 1992, serving a 30 years sentence for drugs.
He is now 76.
Can you offer advice?

Mr. Berman - please.
Bob Sexton

Posted by: Bob | Mar 2, 2011 7:52:09 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB