If you think Fred Phelps and his Westboro Baptist Church made out well last week before the U.S. Supreme Court, consider the case of Jason Pepper. The confessed former methamphetamine dealer won his own case last week at the high court -- and may not have to go back to prison for his old crime (he was released pending the appeal). More significantly, the court's ruling struck yet another blow against sentencing guidelines.
The reason you probably haven't heard much about Pepper is because the decision in his case, Pepper v. United States
, came out last Wednesday just a few minutes before the justices released their opinion in the high-profile case of Snyder v. Phelps,
in which the court upheld
the free speech rights of anti-gay funeral protesters. Virtually all of the coverage of the day's Supreme Court news, and the next day's for that matter
, focused on the Phelps' First Amendment case, leaving Pepper's sentencing decision under-reported
, if not completely under-appreciated.
"Supreme Court rules in favor of former Iowa drug addict" is how the Des Moines Register put it.
The court, in a 6-2 vote (Justice Elena Kagan recused), held that Pepper's rights had been violated when a judge who was re-sentencing him refused to consider the significant "rehabilitation" Pepper had accomplished since first being sentenced years earlier. In so doing, the justices moved to finally end an eight-year-long case (a case far longer, by the way, than either of the sentences meted out to Pepper) and generated another round of judicial debate over the roles of the courts and the Congress when it comes to crime and punishment.
Justice Sonia Sotomayor wrote the majority opinion. She offered yet another interpretation of the vagaries of the sentencing guidelines, the congressionally sanctioned and judicially administered rules that help determine which convicted criminal gets which prison sentence and why. For the third time in six years, the court weighed the policies contained in those guidelines and rejected them. So that sound you heard late last week was the sound of federal prosecutors and criminal defense attorneys scrambling over their sentencing tactics in pending federal cases. Like its immediate predecessors, Pepper v. United States
is required reading.
About those predecessors: In 2005, the court in Booker v. United States
stunned many people when it declared the guidelines "advisory" and not "mandatory" to give back some sentencing discretion to the federal judges who are asked to impose a sentence. In 2007, the court in Kimbrough v. United States
, furthered refined the scope of the guidelines, again saying that they must yield to constitutional protections. And now Pepper
, which is particularly relevant at a time when federal prisons in some jurisdictions (like California
) are terribly overcrowded. Justices Samuel Alito and Clarence Thomas dissented (separately) and Justice Stephen Breyer wrote a concurring opinion.
Pepper's story is compelling. Here's an admitted meth dealer, an addict, who turns his life around in prison, only to see federal judges at all levels of power struggling with what to make of, and whether to formally account for, his rehabilitative work. Here's how the court described those efforts:
In his testimony, Pepper first recounted that while he had previously been a drug addict, he successfully completed a 500-hour drug treatment program while in prison and he no longer used any drugs. Pepper then explained that since his release from prison, he had enrolled at a local community college as a full-time student and had earned A's in all of his classes in the prior semester. Pepper also testified that he had obtained employment within a few weeks after being released from custody and was continuing to work part-time while attending school. Pepper confirmed that he was in compliance with all the conditions of his supervised release and described his changed attitude since his arrest.
That was at the time of Pepper's first
re-sentencing in 2006 (I told you this is an old case). Two years later, in 2008, here's how the justices recounted the events of Pepper's second
Pepper informed the court that he was still attending school and was now working as a supervisor for the night crew at a warehouse retailer, where he was recently selected by management as "associate of the year" and was likely to be promoted the following January. Pepper also stated that he had recently married and was now supporting his wife and her daughter. Pepper's father reiterated that Pepper was moving forward in both his career and his family life and that he remained in close touch with his son.
Writing for the court, Justice Sotomayor determined that any sentencing judge, even a re-sentencing judge, should have considered these facts when determining how long Pepper's sentence should have been. Congress did not specifically preclude such consideration, Justice Sotomayor wrote, and to the extent the sentencing guidelines did not permit judges to depart "downward" in Pepper's case those guidelines had to yield to Pepper's constitutional rights to submit relevant sentencing evidence on his own behalf. And so now Pepper will receive a third
sentencing, at least eight years after his first, unless federal lawyers finally just give up.
Although he concurred in the decision, Justice Breyer cautioned that it should not be taken too far and that the goals and policies of the United States Sentencing Commission
should not be disregarded too lightly by trial judges. He wrote: "A just legal system seeks not only to treat different cases differently but also to treat like cases alike. Fairness requires sentencing uniformity as well as efforts to recognize relevant sentencing differences."
In dissent, Justice Alito lamented a majority opinion that he fears could encourage federal trial judges all over the country to "freestyle" sentencing decisions, a long-standing problem of crime and punishment that the sentencing guidelines were intended to fix in the first place in 1984. "Some language in today's opinion reads like a paean to that old regime," Justice Alito wrote, "and I fear that it may be interpreted as sanctioning a move back..." At least he was on Pepper's side in the case.
Which is more than could be said of Justice Thomas. He also dissented. He wrote that he would have affirmed Pepper's second sentence -- 65 months -- because it is what the sentencing guidelines called for and was not an unconstitutionally severe sentence under the Sixth Amendment
. Justice Thomas wrote: "Pepper admitted in his plea agreement to involvement with between 1,500 and 5,000 grams of methamphetamine mixture, which carries a sentence of 10 years to life. Because Pepper has admitted facts that would support a much longer sentence than the 65 months he received, there is no Sixth Amendment problem in this case."
While the Phelps case directly impacts church members and the poor families they choose to picket, the Pepper case will affect many more people, both in and out of prison, as its principles get passed down to trial judges. The Supreme Court rendered two
very important rulings Wednesday and just because we all talked about the one doesn't mean we won't be living with the consequences of the other, too.