The Injustice of Sentencing Guidelines

By Glenna HallWhen I first heard this story back in December, it nearly broke my heart:

Jason Pepper, a former meth addict and drug dealer from the heartland, says he got lucky when he was finally arrested. A sympathetic judge gave him a fraction of the prison time he could have received and, more importantly, sent him to a place where he got extensive drug treatment.

Then his luck ran out, when appeals courts said his sentence was too lenient. Even though all acknowledged that he had turned his life around, he was sent back to prison. (Washington Post, March 13, 2011)

Here is the description of Mr. Pepper's situation from his brief to the U.S. Supreme Court:

Jason Pepper pled guilty to a federal drug conspiracy charge for which he was sentenced in 2004 and again in 2006 to a term of 24 months of imprisonment. After receiving drug treatment in prison and completing his term of imprisonment, Pepper attended college full time, achieved top grades, held a steady job, was promoted, married, and supported a family. The government appealed each sentence. The Eighth Circuit reversed each sentence on a different ground, and found it "just" to assign the case to a new judge. Notwithstanding the undisputed evidence that Pepper was rehabilitated and living a productive life, the new judge increased Pepper's term of imprisonment from 24 to 65 months, and -- nearly four years after completing the original term -- Pepper returned to the Bureau of Prisons to serve an additional 41 months.

In the federal system and in many states, including Washington, judicial discretion in sentencing has been severely limited by sentencing guidelines. Known in my state as "mandatory guidelines" (an oxymoron if I ever heard one), these rules were enacted in an attempt to make sentences consistent and not subject to judges' bias or soft-heartedness.

The crux of the horrible situation Jason Pepper found himself in was that judges, including those in the federal system, can, in theory, deviate from the guidelines under "exceptional" circumstances. (In Washington, upward deviations have been upheld significantly more often than downward deviations.) Mr. Pepper's sentencing judge, believing among other things that Mr. Pepper was a good candidate for rehabilitation, deviated significantly from the sentencing range and gave him a much lower sentence than the federal guidelines would have prescribed. But the exceptions were narrowly defined, and not all of the judge's reasons turned out to be allowable.

Mr. Pepper served his term and began a significant and remarkable rehabilitation. Nevertheless, after the government won its appeal of the "leniency" of his sentence, he was brought back to court for resentencing. After several more appeals, he was eventually given a prison term almost three times the original sentence, and he was sent back to prison to serve the remaining time. 

One legal blog headlined this story "Jason Pepper Must Have Run Over the Eighth Circuit's Dog."

In 2010, the U.S. Supreme Court took Jason Pepper's case. I first heard the story on the radio, right before oral argument to the Court. I was pretty sure, not just because of the current makeup of the Court but also because of the consistency of state and federal adherence to sentencing guidelines, that Mr. Pepper would end up having to serve out the rest of his 65-month sentence.

Thumbnail image for Jail cell.jpgFor me, sentencing, particularly for drug crimes, was in many ways the hardest part of my work as a judge. Not because the decisions or the work were hard (though of course they were), but because, given the restrictive nature of the sentencing guidelines in Washington, I had virtually no discretion or authority to consider anything about the human being standing before me. I could consider only the nature of the crime, expressed in a number, and the number and kinds of offenses the defendant had committed, also expressed in a number. From those two quantified factors was derived a quite narrow range I was required to use in imposing a sentence. Except in a minuscule set of circumstances, I could only work within that range. The temptation not to think at all but rather to pick a number in the middle was strong.

One Friday afternoon, during a weekly sentencing calendar, a middle-aged man in jail clothes stood before me. Except for the orange jumpsuit, he could have been the guy behind the counter at the bank or post office. His offender score was very high; he had a pages-long list of prior convictions: relatively minor drug crimes alternating with theft convictions and other crimes related to getting money to sustain a drug habit. He wept as he told of us his long addiction and his recent attempts to get clean. He couldn't go on living this way, he said. He'd tried unsuccessfully to get into a treatment program, and he knew he wouldn't get any meaningful help in prison. He begged me to help him get into some kind of program. He was utterly convincing, and I realized he truly had grown ineffably weary of the addiction cycle and was ready to change. By the time he finished speaking, I was the only person in the room not crying. With a heavy heart, I told him the law gave me no choice: I had to give him a multiple-year sentence. There were no available exceptions, and the prosecutor had no interest in finding a way to get this man the help he needed.

People like this appeared before me week after week. I hated Fridays. I came home from work with the memory of what seemed to me to be injustices I had done. I considered resigning from the best job I had ever had.

1024px-Oblique_facade_1,_US_Supreme_Court.jpgI didn't quit, and I rotated off the calendar that involved weekly sentencings. Later I volunteered to take on sentencing calendars that were harder to deal with but that carried penalties that seemed more rational to me than those required for drug crimes.

Eventually, Washington revised its drug sentencing laws to permit more leeway and more treatment options, but the state still has mandatory sentencing guidelines that can lead to harsh and unyielding results.

Mr. Pepper's story had a happier ending than I expected. The U.S. Supreme Court, with only Justice Thomas dissenting, decided that they had really meant their previous ruling that the sentencing guidelines were just guidelines, and Jason Pepper's ordeal was over. The long, painful time of distrusting the judgment of judges may be nearing an end.

Glenna Hall, a retired superior court judge and mediator, lives on San Juan Island, Washington.
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James Fallows is a national correspondent for The Atlantic and has written for the magazine since the late 1970s. He has reported extensively from outside the United States and once worked as President Carter's chief speechwriter. His latest book is China Airborne. More

James Fallows is based in Washington as a national correspondent for The Atlantic. He has worked for the magazine for nearly 30 years and in that time has also lived in Seattle, Berkeley, Austin, Tokyo, Kuala Lumpur, Shanghai, and Beijing. He was raised in Redlands, California, received his undergraduate degree in American history and literature from Harvard, and received a graduate degree in economics from Oxford as a Rhodes scholar. In addition to working for The Atlantic, he has spent two years as chief White House speechwriter for Jimmy Carter, two years as the editor of US News & World Report, and six months as a program designer at Microsoft. He is an instrument-rated private pilot. He is also now the chair in U.S. media at the U.S. Studies Centre at the University of Sydney, in Australia.

Fallows has been a finalist for the National Magazine Award five times and has won once; he has also won the American Book Award for nonfiction and a N.Y. Emmy award for the documentary series Doing Business in China. He was the founding chairman of the New America Foundation. His recent books Blind Into Baghdad (2006) and Postcards From Tomorrow Square (2009) are based on his writings for The Atlantic. His latest book is China Airborne. He is married to Deborah Fallows, author of the recent book Dreaming in Chinese. They have two married sons.

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