I'm a Pepper, You're a Pepper, Don't you love Pepper too?
 
Probable the most important case to come out of the SCOTUS last term, Pepper v. United States is a critical tool in the arsenal of every Sex Crime Defense Attorney. Now, armed with Pepper, we can effectively mitigate the sentence someone may receive based on post-indictment rehabilitation. One of the most important aspects of post-indictment rehabilitation is counseling to insure that the defendant poses no further threat to the community and to discover the underlying cause of aberrant behavior (e.g., parenting issues, abuse issues, gender/sexual identity issues that, unresolved, caused the defendant to be less likely to control his/her behavior or impulses).


Justice Sotomayor' opinion for the Court highlights reasons why any evidence of a defendant's rehabilitation is a critically important concern for an initial sentencing decision in which a district judge is seeking to comply with the statutory instructions of 18 U.S.C. §3553(a).

Consider in this context these passages (with some cites omitted) from the Pepper opinion:


"[E]vidence of postsentencing rehabilitation may be highly relevant to several of the §3553(a) factors that Congress has expressly instructed district courts to consider at sentencing. For example, evidence of postsentencing rehabilitation may plainly be relevant to “the history and characteristics of the defendant.” §3553(a)(1). Such evidence may also be pertinent to “the need for thesentence imposed” to serve the general purposes of sentencing set forth in §3553(a)(2) — in particular, to “afford adequate deterrence to criminal conduct,” “protect the public from further crimes of the defendant,” and “provide the defendant with needed educational or vocational train-ing . . . or other correctional treatment in the most effective manner.” §§3553(a)(2)(B)–(D).... Postsentencing rehabilitation may also critically inform a sentencing judge’s overarching duty under §3553(a) to “impose a sentence sufficient, but not greater than necessary” to comply with the sentencing purposes set forth in §3553(a)(2)...."

"Pepper’s postsentencing conduct also sheds light on the likelihood that he will engage in future criminal conduct, a central factor that district courts must assess when imposing sentence. See §§3553(a)(2)(B)–(C); Gall, 552 U.S., at 59 (“Gall’s self-motivated rehabilitation ... lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts” (citing §§3553(a)(2)(B)–(C))). As recognized by Pepper’s probation officer, Pepper’s steady employment, as well as his successful completion of a 500-hour drug treatment program and his drug-free condition, also suggest a diminished need for “educational or vocational training ... or other correctional treatment.” §3553(a)(2)(D). Finally, Pepper’s exemplary postsentencing conduct may be taken as the most accurate indicator of “his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.” Ashe, 302 U.S., at 55. Accordingly, evidence of Pepper’s postsentencing rehabilitation bears directly on the District Court’s overarching duty to “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing. §3553(a)."


Easily a Sex Crime Defense Attorney could substitute the word "postsentencing" in these passages with the word "post-offense" without any loss of meaning. All the substantive reasons why the Court says sentencing judges should be concerned with postsentencing rehabilitation apply with equal force — and maybe with even greater force — to post-offense rehabilitation. (Indeed, the cite/quote from the Gall opinion in this context, a case concerning only post-offense rehabilitation, reinforces the point that a majority of Justices views these considerations comparably.)


Sentencing in federal court often focuses on the person at or before the crime but now armed with the Pepper decision, it would be nearly ineffective assistance of counsel not to seek post-arrest rehabilitative services for a client charged in a sex crime.  One of the strongest factors that leads to a long prison sentence is the fear of reoffending.  Now we can address this head-on and federal courts must focus on such evidence when discharging, as Pepper puts it, their "overarching duty to 'impose a sentence sufficient, but not greater than necessary' to serve the purposes of sentencing. §3553(a)."