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March 14, 2011

"Supreme Court decision on sentencing guidelines gives judges more leeway"

The title of this post is the headline of this new Washington Post article discussing the Supreme Court's big federal sentencing ruling earlier this month.  Here is a brief excerpt:

This month, Pepper won his case in a victory that gives federal judges more leeway to provide second chances to the criminals who come before them.  The ruling will clarify the rules that guide judges as they try to set sentences that both comport with national norms and ensure justice is done in individual cases.

But Pepper v. United States also is a reminder of the real people behind the court’s cases.  It comes with a story that might make even the most objective balls-and-strikes umpire on the mahogany bench feel a tinge of (can it be said?) empathy.

Related posts on the Pepper ruling by the Supreme Court:

March 14, 2011 at 04:27 AM | Permalink


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With Booker, Gall, Kimbrough, Spears, Nelson and now Pepper -- in other words, as the Guidelines count for less and less -- the case for abolishing the Sentencing Commission becomes more and more compelling.

The original idea behind the Commission was to establsih MANDATORY guidelines that would work toward bringing about system-wide uniformity in sentencing. If the cases listed above had been the law back then, there is no chance Congress would have created the Commission to begin with. It would have seen that the quest for uniformity is a fool's errand.

When the Supreme Court keeps telling us over and over that the guidelines are essentially window dressing, we should take the hint. In this time of painful cutbacks everywhere, there is no reason the taxpayers should continue to shell out millions for what have become a pile of limp sentencing suggestions.

Posted by: Bill Otis | Mar 14, 2011 10:00:00 AM

I'm definitely looking forward to the cases where a disruptive prisoner gets their sentence increased on the second go-around. Although I wonder if there is a correlation between reasonable behavior and getting that re-sentencing to begin with.

An unreasonable offender, for instance, is not likely to have cooperated to the degree that Pepper did, prompting such a large initial variance that the appeals panel took exception. It would not surprise me at all if there is a strong relationship between good behavior and winning on appeal, even though I would expect in the vast majority of cases the appeals panel has no idea about how a particular person is comporting their behavior self while in custody. I would simply expect that lawyers, being human, try just a little bit harder when their client seems like a reasonable person who made a mistake rather than a parasitic lowlife trying to get over on society.

Posted by: Soronel Haetir | Mar 14, 2011 10:36:13 AM

Soronel --

"I'm definitely looking forward to the cases where a disruptive prisoner gets their sentence increased on the second go-around."

Excellent point. It's quaint to believe that revised sentences will get revised in only one direction.

Posted by: Bill Otis | Mar 14, 2011 11:05:32 AM

Bill, you one direction point is exactly why Pepper won: nobody has ever really disputed that new offenses or even new bad conduct could or should not be considered at a resentencing. And yet, though the Eighth Circuit approved of increased re-sentences based on new bad behavior, they refused to allow consideration of new good behavior. Thankfully, SCOTUS these days fixes mistakes in favor of prosecutors (which seem to come a lot from the 8th Circuit) as well as mistakes in favor of defendants (which come a lot from the 6th and 9th Circuits lately).

Posted by: Doug | Mar 14, 2011 12:11:37 PM

To me it seems the 8th circuit is the hardball player of the lot...Originally calling owi a crime of violence for career Offender classification and raising so many sentences upon appeal, as noted in Gall...Now they count new bad behavior, but refuse to look at new good behavior...Again a one way door....Thats my problem with the Federal...At last, if the guidelines were to be a uniform effort, it all must be the same in all of the circuits, one would hope....Else we revisit Judge Camps mess...

Posted by: Josh | Mar 14, 2011 1:22:51 PM

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