SCOTUS appoints former Alito clerk to defend Eighth Circuit’s work in Pepper
As detailed in this new post by Lyle Denniston over at SCOTUSblog, the “Supreme Court on Thursday named a New York City lawyer and former Supreme Court clerk to argue the side of a criminal sentencing case that the federal government normally would defend.” Here are the basics:
The government … has sided with the prison inmate challenging his sentence in Pepper v. U.S. (09-6822) — a case granted review near the end of last Term and not yet scheduled for oral argument. At issue in the case is whether, under federal law, a judge imposing a new sentence after an earlier one was set aside is barred from reducing the sentence as a way to give the individual credit for having made efforts to rehabilitate himself after the initial sentence was imposed.
The Justice Department now takes the position that the judge may do so. The Department had urged the Court to send the case back to the Eighth Circuit Court to consider the Department’s present position, but the Supreme Court went ahead and granted review June 28 of an appeal by the Iowa prisoner, Jason Pepper.
In Thursday’s order, the Court chose Adam G. Ciongoli to enter the case as a friend-of-the-court and present a merits brief and an oral argument that a judge lacks that authority. Ciongoli, now engaged in corporate practice and teaching part-time at Columbia Law School, is a former law clerk to Justice Samuel A. Alito, Jr.
Because of the messy record, I thought Pepper might eventually become a DIG case. But now that SCOTUS has appointed counsel to defend the Eighth Circuit’s approach, I suspect we will get some kind of ruling in Pepper.
UPDATE: A helpful reader alerted me to the interesting coincidence that, also today, the district judge in Iowa who sentence Jason Pepper to serve more prison time today released him pending the disposition of his SCOTUS appeal. The brief order to this effect can be downloaded below: