Tuesday, March 08, 2011

Sentencing the reformed offender

The theme of maximum flexibility for a judge in fixing a sentence that fits both the crime and the offender, recently discussed here in relation to guideline judgments, is also present in Pepper v United States, USSC No 09-6822, 2 March 2011.

Pepper illustrates the relevance of post-sentencing rehabilitation when a sentence is reconsidered on appeal. The advisory guidelines (United States v Booker, 543 U.S. 220 (2005), discussed here on various occasions from 13 December 2007) could be departed from to recognise rehabilitation, and legislation to the contrary effect was declare invalid.

Possession of the fullest information possible on the offender's life and characteristics has long been held to be essential to selection of an appropriate sentence: Sotomayor J delivering the opinion of the Court in Pepper, citing Williams v New York, 337 U.S. 241, 246-247. Thomas J dissented in Pepper, on the grounds that the guidelines should be mandatory. He has held to this line previously, apparently not thinking that he should revise his views to conform to the law which he has no chance of changing.