U.S. Supreme Court to ponder Iowa drug sentence
By LEE ROOD • Des Moines Register
Two Iowa defense lawyers will take an Iowa case before the U.S. Supreme Court next week that could change how federal judges resentence convicts after appeals.
At issue is whether judges can consider a convict's efforts at rehabilitation while his case is on appeal.
The Iowa case embodies fundamental questions about fairness and second chances. Should society reward a convict for working to better himself when freed during an appeal? Or would that be unfair because no such consideration is possible for the initial sentence?
The case involves Jason Pepper, now 31, who was arrested seven years ago in Akron, Ia., on drug charges. He later pleaded guilty. He served his prison sentence and was released. But prosecutors repeatedly appealed his sentence, claiming it was too light.
Today, Pepper is 31. He is married, he has a job, and he has a child on the way. But if the Supreme Court rules against him, he could be headed back behind bars.
The story of how Pepper went from troubled youth to meth addict is a sad one, but not all that surprising anymore in Iowa. Everything that has happened since, though, has been exceptional, according to many who work in the federal justice system.
Pepper's supporters hope his case will finally come to an end as a result of the Dec. 6 arguments before the nation's highest court.
If Pepper wins, he could go down in legal history as someone who stuck his neck out so others might earn a rare second chance in the federal justice system.
"If I wouldn't have fought this, I would have been done by now," Pepper said during an interview at his home in St. Joseph, Ill. "But it will be worth it to me if someone else benefits."
Court fight has been ongoing for seven years
Pepper's story starts in October 2003, when three cars filled with federal agents surrounded the 24-year-old. He was charged with conspiracy to distribute methamphetamine.
In 2004, U.S. District Judge Mark Bennett of Sioux City initially sentenced Pepper to 24 months in prison. That is far below the term specified in controversial federal sentencing guidelines.
The U.S. Supreme Court has said in recent years that the guidelines should be advisory, not mandatory. But federal appeals courts have been split on how to interpret that guidance.
Prosecutors upset with the sentence won an appeal before the 8th U.S. Circuit Court of Appeals, which ordered Pepper to be resentenced.
Bennett stuck with the same sentence, based in part on Pepper's efforts to rehabilitate himself.
Prosecutors appealed the sentence again, contending factors such as rehabilitation should be irrelevant. Again, prosecutors won.
As a result, four years after Pepper's release from prison came a strange twist: He was resentenced to three more years in prison.
The newest justice on the Supreme Court sided with Pepper's defense when she was U.S. solicitor general.
Elena Kagan wrote that no provision in court rules "prohibits a court from considering at resentencing a defendant's efforts at rehabilitation undertaken after his initial sentencing." In fact, she added, a court rule "specifically instructs sentencing courts to consider 'the history and characteristics of the defendant.' "
Pepper's lawyers, Alfredo Parrish of Des Moines and Leon Spies of Iowa City, contend judges must be able to consider a defendant's rehabilitation in extraordinary circumstances. To understand why, they say, you need to consider Pepper's story.
"We heard the tale and thought this was a case that cried out for our best efforts," Spies said. "We were both so sold on Jason and his story that we decided to do it pro bono" - meaning they are donating their services at no cost to him.
After deaths in family, 'world was crumbling'
Pepper moved from his hometown of St. Joseph, Ill., to Akron, in far northwest Iowa, when he was 18. The child of divorced parents, he wanted to be with his older brother and his mother, who had settled in the town of 1,500.
"I hadn't lived with my mom for years," he said. "We were always close, but I didn't get to see as much of her as I liked."
Pepper admits he was drinking and smoking pot by the time he arrived in Iowa. Then he began trying other drugs. He said it didn't help that he was a construction worker, and his boss at the time smoked pot and drank.
He struggled. Then in February 1998, his life took a dive for the worse.
That's when Pepper's older brother, Ben; Pepper's best friend; and another youth all died in a car accident after a run-in with police.
"They were on Highway 10, near Orange City," Pepper said. "There was a blizzard outside, and they came upon a tractor pulling a manure spreader. They swerved and hit a semi head-on."
Ben had been the only stable force in his young life, Pepper said. "After that, everything, just everything, started going downhill."
Pepper had tried meth before his brother's death. Afterward, he began using it more frequently.
"It was, I don't know, euphoric," he said of the stimulant, one of the world's most addictive drugs. "It was definitely a part of what I was doing to cope.''
About a month after Ben's death, Pepper's mother admitted him to a psychiatric ward for depression. He was suicidal and spent 24 hours on a couch, crying.
Doctors and relatives tried to get him to take antidepressants, but Pepper said he wouldn't.
Then, in 2000, his mother was diagnosed with terminal cancer. Pepper's meth use picked up dramatically.
"My world was crumbling around me," he recalled. "I wound up losing them both within four years. Devastated doesn't begin to describe what I was feeling."
His drug conspiracy conviction was borne of the need to feed an expensive habit, he said.
Pepper did not know how to make methamphetamine, nor could any "mom and pop" lab supply him with enough to stay high. He bought and sold large amounts to keep the cash coming, often dealing from his bicycle in Akron. He became gaunt, weighing only 158 pounds, he said.
On the day Pepper was arrested, he and a friend had purchased 2 ounces of meth for themselves to use and sell, he said. Another friend later came over with cash to buy, supplied by federal agents.
"In hindsight, I think I knew deep down inside what was going on," he said.
Pepper and his friend got high, and then he got on his bicycle to go make some money.
Federal agents had already been to Pepper's home and arrested his friend. The three cars full of agents whirled up and surrounded Pepper, with the agents' guns drawn.
"I remember I just laid down on the ground and felt the biggest relief of my life," he said.
Weaned off drugs, he becomes changed man
Sitting in jail in Sioux City, Pepper began the difficult process of withdrawal.
He slept. He sweated. He gained 60 pounds watching television and eating.
"Honestly, it was horrible," Pepper said. "I started having night terrors. I would wake up drenched in sweat. My body was detoxing. But I also knew I was safe."
He says he did not know what the charge against him entailed, but he was glad to be away from meth.
When Pepper went to trial, he pleaded guilty to a crime that typically carries a mandatory 10-year prison sentence.
Pepper's original lawyer had recommended a steep departure from U.S. sentencing guidelines with hopes the cooperative defendant-turned-witness could get into a boot camp in Pennsylvania.
But Pepper had a $600-to-$800-a-day meth habit when he was arrested, and Judge Bennett ultimately decided Pepper would benefit from a 500-hour treatment program at a federal prison in South Dakota.
Pepper recalled his past behavior - "A lot of it had to do with blaming others" - and how the treatment changed him.
"I learned that you need to take responsibility for the choices you make in life and weigh the consequences of your own decisions," he said. "I also got to take a step back from my personal situation and look at how my actions can be perceived through the eyes of others."
Once released from prison, Pepper became an "A" student in business courses at Western Iowa Tech Community College. He landed a part-time job at a Sioux City farm supply store and was training to become a manager.
But in the meantime, lawyers for the government appealed his case. Federal prosecutors won their quest to have him resentenced in 2005.
Bennett again considered the young man's cooperation with the government in prosecuting the meth ring; the two devastating deaths in Pepper's family; and his subsequent rehabilitation while in prison. Bennett decided Pepper needed no more time behind bars.
But the government appealed again, and the Court of Appeals agreed with prosecutors that Bennett had abused his judicial discretion and ordered him off the case. Chief District Judge Linda Reade picked up the case and sentenced Pepper anew in 2009 to an additional 41 months in prison. He returned to prison in Florence, Colo.
In an unusual fourth ruling on the case, the 8th Circuit sided with Reade, saying rehabilitation could not be considered when judges depart from the federal sentencing guidelines.
Parrish and Spies appealed to the Supreme Court.
In July, Reade released Pepper from prison, pending the outcome of his appeal.
Lawyer: 'I don't think this guy got a fair shot'
America's prisons are full of former drug addicts who swear they would lead crime-free, productive lives if given a second chance. But the federal justice system has no parole. Federal judges typically do not get to consider strides inmates have made since their convictions.
"Very rarely do you get to come back to court for a new sentencing in the first place," said Paul Rosenberg, a Des Moines defense lawyer. "One of the issues this case raises is: Is it fair that only those defendants who, by happenstance, are back before the court get to have a second look?
"But the other problem is: Is it really permissible for someone to be sentenced once and then have to come back to court and be sentenced again more severely? Isn't that double jeopardy?"
The Court of Appeals said Pepper's rehabilitation was admirable, but not relevant in his resentencing. Lower courts, the judges said, could not have considered that evidence in granting a lighter sentence than the guidelines recommended because the evidence was not available at the time.
Under the sentencing guidelines, Pepper could have served at least 97 months in prison. Bennett reduced his initial sentence by 75 percent. Prosecutors said Pepper deserved only a 15 percent sentence reduction.
Bennett's second sentence amounted to a 59 percent reduction.
Other defendants in the case - Alexander Blankenship, Felipe Sandoval and Jose Martin Barragan-Torres - were given far longer prison terms of 72, 35 and 90 months.
With his cooperation, time off for good behavior and completion of treatment, Pepper likely faces just eight more months split between prison and a halfway house.
Still, he said he wants to fight.
To Parrish and Spies, the case is "the final bookend" to a series of high court decisions that have poked at the durability of the controversial sentencing guidelines.
Pepper's case, they say, clearly illustrates why rehabilitation must come into play when considering all the facts of a case during rare resentencings.
"I didn't think this guy got a fair shot," said Parrish, who will argue the case.
"Pepper was given a sentence based on these mandatory rules that do nothing more to help people once they get on the right path."
These days, Pepper is married and a father to his wife's 9-year-old daughter. His wife, Hannah, a former high school sweetheart, is pregnant, and their baby is due in the spring.
Pepper said he is doing well in his night work at a Sam's Club near his home in St. Joseph. He's put business school on the back burner because of his demanding job and his appeal.
One day, he hopes to run his own business, perhaps a restaurant.
Pepper said he still drinks at times, but he is certain he would never go near meth again.
"I have been working my butt off to stay on the straight and narrow," he said. "I would rather commit suicide."
He said the most important thing he will get from the Supreme Court justices' decision sometime before next summer is closure.
"After December, I will finally feel like I can move on with the next chapter of my life," he said. "But I just don't think I deserve to have to go back."
Note that Rubashkin's attorneys initially wanted a sentence reduction of more than 90%, and they still cling to that demand. Also note teh US Court of Appeals has already ruled a much less reduction to be incorrect, overturned it, and removed the case from the presiding judge.
Finally, note that the issue with that case is that even though it appears that Bennet has truly been rehabilitated, the law does seem to allow for such a radical departure in sentencing.
Now realize that Sholom Rubashkin – who was sentenced at the low end of the US Sentencing Guidelines – has shown no remorse for what he did, still refuses to cooperate with law enforcement, and has allowed his attorneys and spokespeople to lie about the judge, the court and the prosecutors while playing the antisemitism card.
For those of you who think Sholom Rubashkin was singled out or that his sentence was "antisemitism," take a close look at this case.
Then start lobbying for reform of the US Sentencing Guidelines and for prison reform.