Sentencing Law and Policy

North Carolina Supreme Court holds mandatory lifetime GPS monitoring for some sex offenders violates Fourth Amendment

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring.  That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here).  This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.  Here is part of the start of the majority opinion (authored by Justice Earls) in this latest version of Grady:

The United States Supreme Court has determined that North Carolina’s satellite-based monitoring (SBM) of sex offenders, which involves attaching an ankle monitor “to a person’s body, without consent, for the purpose of tracking that individual’s movements,” constitutes a search within the meaning of the Fourth Amendment.  Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam). The Supreme Court remanded the case for an examination of “whether the State’s monitoring program is reasonable — when properly viewed as a search.” Id. at 1371....

In accordance with this decision, this case was ultimately remanded to the superior court, which entered an order determining the SBM program to be constitutional.  The Court of Appeals reversed, but only as to Mr. Grady individually.  We conclude that the Court of Appeals erroneously limited its holding to the constitutionality of the program as applied only to Mr. Grady, when our analysis of the reasonableness of the search applies equally to anyone in Mr. Grady’s circumstances.  Cf. Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that state statutes mandating a sentence of life imprisonment without the possibility of parole are unconstitutional as applied to a specific group, namely juveniles who did not commit homicide).

In North Carolina, “SBM’s enrollment population consists of (1) offenders on parole or probation who are subject to State supervision, (2) unsupervised offenders who remain under SBM by court order for a designated number of months or years, and (3) unsupervised offenders subject to SBM for life, who are also known as ‘lifetime trackers.’ ” State v. Bowditch, 364 N.C. 335, 338, 700 S.E.2d 1, 3 (2010).  Mr. Grady is in the third of these categories in that he is subject to SBM for life and is unsupervised by the State through probation, parole, or post-release supervision.  Additionally, Mr. Grady is a “recidivist,” which makes lifetime SBM mandatory as to him without any individualized determination of the reasonableness of this search.  Because we conclude that the relevant portions of N.C.G.S. §§ 14-208.40A(c) and 14- 208.40B(c) are unconstitutional as applied to all individuals who, like Mr. Grady, are in the third Bowditch category and who are subject to mandatory lifetime SBM based solely on their status as a “recidivist,” we modify and affirm the opinion of the Court of Appeals.

And here is a paragraph from the start of the dissenting opinion authored by Justice Newby:

Using the remand as an opportunity to make a broad policy statement, the majority, though saying it addresses only one statutory classification, recidivist, applies an unbridled analysis which understates the crimes, overstates repeat sex offenders’ legitimate expectations of privacy, and minimizes the need to protect society from this limited class of dangerous sex offenders.  The majority’s sweeping opinion could be used to strike down every category of lifetime monitoring under the SBM statute.

Enduring examinations of the data and dynamics of modern mass incarceration

Professor John Pfaff's important book on modern criminal justice systems in the United States, Locked In: The True Causes of Mass Incarceration - and How to Achieve Real Reform, was published more than 2.5 years ago.  But the data and themes covered in this book remain quite timely, as well evidenced by two new pieces published this week.  The first is by Pfaff himself in Politico under the headline "What Democrats Get Wrong About Prison Reform." A paragraph from the start of this piece provides highlights: 

Drug crime is not what’s driving the high prison population in the United States.  It’s crimes of violence.  And this omission has consequences. It means that any “solution” is unlikely to achieve its intended goal and in the meantime society will continue to suffer long-term damage — physical, psychological and economic — from a persistent cycle of unaddressed violent crime.

The second is this much longer treatment of these important subjects in the Federalist Society Review under the title "Two Views on Criminal Justice Reform: The Author and a Critic on Locked In." This document has two terrific pieces: (1) an "An Interview with Professor John Pfaff" curated by Vikrant Reddy, and (2) "Refreshing Candor, Useful Data, and a Dog’s Breakfast of Proposals: A Review of Locked In by John Pfaff" authored by Kent Scheidegger. Here is how Scheidegger's review of Pfaff gets started:

John Pfaff gives us two books under one cover in Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.  In the first book, he tells us that nearly everything we have been told about so-called mass incarceration by his fellow “reform” advocates is false.   His candor is a breath of fresh air. He convincingly makes the case with a mound of useful data.

The second book, in contrast, is thinly supported and heavily influenced by Pfaff’s predispositions.  He tells us that high incarceration rates are caused primarily by overcharging prosecutors, though his data do not rule out alternative hypotheses.  He claims that the election of tough prosecutors is caused by the “low-information, high salience electorate,” not by informed people who genuinely and justifiably disagree with him on priorities.   The primary ingredients in his stew of solutions are tools to save the ignorant masses from themselves by making our society less democratic and our criminal justice decision-makers less responsible to the people.  Other intriguing possibilities raised by his data go unexplored.

Pfaff does not define what he means by “reform,” but he appears to use that term for policies that have the single-minded purpose of reducing the number of people incarcerated.  Obviously, that is not the sole or universally accepted meaning of the term in criminal justice. The Sentencing Reform Act of 1984 definitely did not have that purpose.  In this review, I will put the word “reform” in quotation marks when used in Pfaff’s sense.

"Gamble, Dual Sovereignty, and Due Process"

The title of this post is the title of this new paper now available on SSRN and authored by Anthony Colangelo.  Here is its abstract:

The Constitution’s Double Jeopardy Clause is an analytically gnarly beast.  What seems like a fairly straightforward prohibition on multiple prosecutions for the same crime turns out to be a bramble bush of doctrinal twists and snarls.  At the center is the so-called “dual sovereignty” doctrine.  This principle holds that separate sovereigns may prosecute for what looks like the same “offence” — to use the Constitution’s language — because they have separate laws, and those laws prohibit separate offenses, and thus the Double Jeopardy Clause’s bar on multiple prosecutions for the same offense simply does not come into play.  As a doctrine that relates to a right guaranteed by the Bill of Rights, it’s remarkably one-dimensional in favor of government.

In Gamble v. United States the Supreme Court reaffirmed and built upon this view, or what I have called a “jurisdictional theory” of double jeopardy.  This theory peels back the label “sovereign” to extract its underlying rationale; namely, sovereign means an entity with independent jurisdiction to make and apply law, or prescriptive jurisdiction, and that prescriptive jurisdiction authorizes independent jurisdiction to enforce law through a separate prosecution.  This terminological move from sovereignty to jurisdiction is not just semantic.  Rather, it opens up analysis.  The theory holds strong explanatory power for current double jeopardy law and practice as well as dynamic doctrinal and normative implications for double jeopardy law going forward, perhaps most of all for U.S. prosecutions relating to criminal activity abroad like human rights abuses, piracy, and various forms of terrorism.

It also imports a whole other part of the Constitution: The Due Process Clause, or Clauses — the Fourteenth Amendment for the states, and the Fifth Amendment for the federal government.  For any exercise of jurisdiction in this country must be measured against due process. In other words, if the sovereign has no jurisdiction over the offense, the sovereign cannot successively prosecute.  Here Gamble’s language that the United States might successively prosecute for crimes abroad when it has “interests” fits snugly into existing due process analyses because both the Fourteenth Amendment and the Fifth Amendment tests also involve interest analyses.

Billionaire behind victims' rights reforms now prompting another kind of criminal justice change in Nevada after cutting sweet plea deal for his drug offenses

Last year I noted in this post the remarkable criminal justice story of Henry Nicholas, the tech billionaire who has pushed Marsy's Law reforms around the nation, upon his arrest at a Las Vegas Strip casino-resort on suspicion of trafficking heroin, cocaine, meth and ecstasy.  A helpful former student made sure I saw this new press article, headlined "Public defenders to use generous plea deal offered to billionaire Henry Nicholas as model for future plea deal requests," which details how the Nichols case is now having a remarkable ripple though the local criminal justice system.  Here is the latest chapter in this fascinating story:

Starting next week, public defenders in Clark County plan to directly invoke and ask prosecutors to grant terms similar to the generous plea deal offered to tech billionaire Henry Nicholas for criminal cases with indigent defendants.  According to documents shared with The Nevada Independent, attorneys in the Clark County public defender’s office have drafted a plan to begin filing motions in criminal cases seeking similar treatment offered to Nicholas by Clark County District Attorney Steve Wolfson’s office.

Civil justice advocates and some Democratic lawmakers cried foul after Wolfson’s office announced a plea deal with Nicholas, after he and a woman (Ashley Fargo) were arrested in Las Vegas last year and charged with several counts of felony drug trafficking.  The deal will see the two avoid prison time, go on informal probation, perform 250 hours of community service, attend regular drug counseling sessions and each make a $500,000 contribution to drug counseling programs in Clark County.

Public defenders in Clark County plan to begin filing motions in District and Justice courts that draw a direct comparison to the plea deal reached with Nicholas and the treatment of indigent defendants, including asking for a reduction in sentence, own recognizance release and a contribution of 0.0128 percent of their net worth — the same percentage of Nicholas’s net worth that he agreed to pay as part of his plea deal.  “Billionaire Defendant Nicholas and Defendant XXX are similarly situated and should be similarly treated by the prosecution and the courts,” the draft motion states. “The primary difference between the two men is that Billionaire Defendant Nicholas is wealthy, while Defendant XXX is not.”

The office has also drafted a form motion asking a District Court judge to recuse the district attorney’s office, for use in potential future criminal cases where prosecutors offer a less-generous plea deal than the one offered to Nicholas and that states the “appearance of impropriety and unfairness” so erodes the public trust that appointment of a special prosecutor is warranted.  “The appearance of impropriety and the bias is most obviously seen in the overly harsh plea bargain the State has offered the indigent defendant versus the sweetheart deal afforded the Billionaire Defendant Nicholas,” the draft motion states. “In this case, it seems clear that the criminal justice system, wealth rather than culpability shaped the outcome.”

The district attorney’s office declined to comment on the planned filings.

Nicholas is the co-founder and former CEO of Broadcom Corporation, with an estimated net worth of $3.8 billion. After leaving Broadcom in 2003, he has poured millions of dollars into passing ballot measures in multiple states (including Nevada) to add a “victim’s bill of rights” called Marsy’s Law to individual state constitutions.  Wolfson appeared in television ads supporting the ballot question in the run-up to the 2018 election.

Nicholas and Fargo — the ex-wife of Brian Fargo, an heir to the Wells Fargo bank fortune — were arrested in Las Vegas in August of 2018 on suspicion of drug trafficking after police found multiple drugs including heroin, cocaine, methamphetamine and ecstasy in their hotel room.  According to a police report, Nichols alerted hotel security at the Encore after he had difficulty opening the door to his hotel room and became concerned about the welfare of Fargo.  Police entered the room and found Fargo unresponsive with a semi-deflated balloon in her mouth, used to recreationally ingest nitrous-oxide (commonly known as whippets or poppers).  Police also reported finding 96 grams of methamphetamine, 4.24 grams of heroin, 15.13 grams of cocaine, and 17.1 grams of psilocin in the hotel room....

Nicholas was previously indicted on federal drug charges in 2008, but the charges were dropped in 2010.  He is scheduled to enter the plea deal, which must be accepted by a judge, on August 28.

I have long said in a variety of settings that advocates of criminal justice reforms out to utilize strategically, rather than complain loudly about, the lenient treatment often afforded more privileged criminal defendants.  Thus, I am quite pleased to see this clever effort by the Clark County public defender's office to try to get all of their less privileged defendants the Nichols treatment.

Prior related post:

• High-profile drug arrest of billionaire addict spotlights issues of what is "trafficking" and who is a "victim" and "recidivist"

Tennessee completes execution of Stephen West using electric chair

Following the denial of his last legal appeals by the US Supreme Court, Stephen West was executed tonight by the state of Tennessee.  This local article provides these details:

Tennessee executed death row inmate Stephen Michael West Thursday night, marking the third time the state has used the electric chair in less than a year.  He was pronounced dead at 7:27 p.m. CDT, according to the Tennessee Department of Correction.  He was 56.

West was sentenced to death for the 1986 stabbing deaths of Wanda Romines, 51, and her 15-year-old daughter, Sheila Romines, in their East Tennessee home.  He also was convicted of raping Sheila.  Experts said the women had been tortured in front of one another before they died.

West was the 137th person put to death in Tennessee since 1916, and the fifth inmate executed since August 2018.

West's legal team had pleaded to spare his life in the weeks before the execution.  They said his co-defendant Ronnie Martin had committed the murders while West stood by, hobbled by a history of childhood abuse and untreated mental illnesses.  Martin was 17 when the murders took place.  He remains in an East Tennessee prison and will be eligible for parole in 2030. Because he was a minor at the time of the crime, Martin was not eligible for the death penalty.

In a clemency application sent to Gov. Bill Lee, West's lawyers said he had reformed himself after receiving mental health treatment in prison.  They stressed his Christian faith and his work with other inmates behind bars.  Days before the execution, Lee said he would not intervene.  Within hours, West asked to die by electrocution instead of lethal injection, the state's default execution method.

He was the third inmate to make that choice since Tennessee resumed executions a year ago.  Each inmate who chose the electric chair had participated in lawsuits challenging Tennessee's lethal injection protocol.

"Is Mass Incarceration Inevitable?"

The title of this post is the title of this notable new paper authored by Andrew Leipold now available on SSRN. Here is its abstract:

The claim that American justice system engages in "mass incarceration" is now a cliché, albeit one that seems entirely justified by both the number and rate of people who are behind bars.  As a result, a large number of states and the fed­eral government have engaged in wide-ranging reform efforts to shorten senten­ces, divert people from prison, and in general reduce incarceration numbers to more manageable levels.  Although these efforts have made modest gains, there has been little discussion of whether their ultimate goal is feasible-reducing incarceration levels to a point where "mass" incarceration is no longer an apt description.

This article explores the likelihood of a meaningful, sustained reduction in incarceration rates. It begins by asking what we really mean by mass incarcera­tion and finds that while the definition is surprisingly complex, the label ulti­mately seems justified.  Then, using existing and original compilations of data, the article examines some of the less-obvious obstacles to reducing prison popula­tions.  In particular, it highlights the difficulty of reducing incarceration rates without addressing the problems created by those convicted of violent crimes, something few reforms have been willing or able to do.  It also argues that those who believe prison reform will lead to economic savings-a primary motivation in virtually every state-are misguided, and that illusion of economic savings might ultimately derail the reform efforts.

The article then takes a further step and suggests that efforts to decrease incarceration levels will inevitably be frustrated unless the most influential per­son in the creation of mass incarceration, the prosecutor, is induced to play a more central role.  To date, reform efforts have routinely targeted everyone in the process except prosecutors, and this article offers both suggestions on why this is so and an argument for why prosecutors are an indispensable part of any change.  The article concludes with the sobering prediction that, as useful as recent reforms have been, as currently constructed they will ultimately be inad­equate to erase the mass incarceration label for years to come.

Shouldn't all prosecutors (and judges and defense attorneys and police and probation officers) make regular and repeated visits to prisons?

Last month the folks at FAMM started the #VisitAPrison challenge which calls on lawmakers to visit a prison or jail and which rightly highlights that many legislators who make and change laws governing incarceration often have no direct or personal experiences with prisons or persons incarcerated therein. I consider the FAMM campaign very valuable and important, and this interesting new piece by Daniel Nichanian at The Appeal Political Report prompted the follow-up question that serves as the title of this post.  This piece is headlined "Prosecutor Sends Staff to Prison, in a Bid to Counter Their Reflex to Incarcerate,"and I recommend it in full. Here are excerpts:

Sarah Fair George, the state’s attorney of Chittenden County (home to Burlington) in Vermont, has instructed all staff and prosecutors who work in her office to visit the St. Albans prison, also known as the Northwest State Correctional Facility. “Most prosecutors have never stepped foot in the buildings that they sentence people to spend years in,” she wrote on Twitter. “That needs to change.”

I talked to George on Wednesday about her initiative, and how it could change practices in her office. She said prosecutors often treat prison time “nonchalantly,” as something abstract, and get in the habit of “just throwing out numbers.” “We say six months or two years, and don’t really have to think about what it means for the person,” she explained.

“It’s important to stand in that space and see it for yourself, and feel it for yourself,” she added. “My hope is that people recognize that six months is a long time to spend in jail. Maybe thirty days can be enough time, maybe no jail. Just being more cognizant of the space you’re sending people to when you put an arbitrary number on an offer sheet.”

George said this perspective should fuel shorter sentences, but also restrain prosecutors from seeking incarceration in the first place. “They spent an hour and a half there and were relieved to get out,” she said of staff members who have already visited St. Albans as part of her initiative. “So let’s imagine how this might impact somebody who is there for six months or a year, and how this impacts them as a community member when they get back out. Is there a way that we can avoid that entirely, and not risk them coming out a more violent person or with some type of trauma having been in jail? Can we find another way?”...

The interview has been condensed and lightly edited for clarity.

Q: You announced that you have instructed prosecutors in your office to visit a prison in the next month. What is the impetus for this, and what insights do you wish them to glean?

A:  For me, it has gone back to my own experience having been in some of these prisons. It has shaped a lot of my reform policies and how I approach prosecution in general. When I was in grad school, I went to multiple prisons and was on the mental health wards at those prisons, which were in some cases pretty appalling. Then, when I was at the public defender’s office, I went to several prisons and met with clients and heard the stories of either how they were treated in jail or the conditions of jail, solitary confinement, stuff like that. I came into being a prosecutor with that background, and with that idea of what some of those prisons are like.

I have always thought it is important for people to understand what probation does, and what some of our community partners do, and that’s always been stressed. But it’s never been stressed that they should also fully understand what prison means, and what a jail sentence means for these individuals. As prosecutors, we get very comfortable with just throwing out numbers as an amount of time. We say six months or two years, and don’t really have to think about what it means for the person, that six months for one person could be detrimental to their entire lives.

What are you thinking of when you say it’s important to understand what prison means for individuals? What it is that you think people in your office should have to witness?

Literally just seeing the facility, and understanding literally where they’re sending people. But also being in one of those cells and sitting on the bed in a cell and seeing how small that space is, and seeing a solitary confinement room and seeing how claustrophobic you get in five minutes in that room. Hearing those sounds in the jail of those doors closing, and how cold and harsh all of those sounds are. Seeing inmates in that environment. In Vermont, there is this idea that jail isn’t that bad, and in some sense we’re very lucky, but that’s a lot easier to say on the outside. You spend an hour and a half in the jail and you find yourself relieved to come out. You know you were always coming out, but you have that experience and you think, “Okay, maybe that TV and that good food is not as important as I thought it was when I just lost my freedom for an hour and a half, knowing full well I’ll be coming out and I’m still relieved.”

As a prosecutor, the only time I’ve been to a jail is for a deposition of an inmate, or an inmate who wants to do a proffer. Those meetings are very structured, they’re in a space right inside the jail, so you’re not going very far. There’s really nobody else around. That doesn’t count for me, that’s a very easy way to say you’ve been in a jail without actually being in a facility. I think it’s important to really stand in that space and see it for yourself, and feel it for yourself.

Q:  How exactly do you think prosecutors should take these things into account in the course of their work? At what stages of their discretion should this weigh in?

A: It may not start necessarily with the charging decisions, but I think in some cases it could. If you know for example that this person’s parole could be revoked and they may go back to jail, or you know that they might be held in bond or some other violation, then maybe it does charge at the charging decision. But at the very least, I think that when you’re giving an offer on a case and you nonchalantly say six months as if that’s not a lot of time, my hope is that people recognize that six months is a long time to spend in jail. Maybe thirty days is enough time, maybe no jail. Just being more cognizant of the space you’re sending people to when you put an arbitrary number on an offer sheet.

But also understanding where people are coming from. Somebody may have a long record, and that record has led to incarcerative sentences several times in their history — maybe you can have a better understanding of why they are in the place that they’re in, having spent all that time in jail. Maybe doing it again isn’t going to do them hasn’t favors. That hasn’t worked, that person is back. Maybe we need to find another way to address this particular person.

"Slavery gave America a fear of black people and a taste for violent punishment. Both still define our criminal-justice system."

The title of this post is the title of this new piece authored by Bryan Stevenson from the New York Times magazine. Based on the title and author, regular readers should know this is a must-read in full.  Here is an excerpt:

The United States has the highest rate of incarceration of any nation on Earth: We represent 4 percent of the planet’s population but 22 percent of its imprisoned.  In the early 1970s, our prisons held fewer than 300,000 people; since then, that number has grown to more than 2.2 million, with 4.5 million more on probation or parole.  Because of mandatory sentencing and “three strikes” laws, I’ve found myself representing clients sentenced to life without parole for stealing a bicycle or for simple possession of marijuana.  And central to understanding this practice of mass incarceration and excessive punishment is the legacy of slavery....

The 13th Amendment is credited with ending slavery, but it stopped short of that: It made an exception for those convicted of crimes.  After emancipation, black people, once seen as less than fully human “slaves,” were seen as less than fully human “criminals.”  The provisional governor of South Carolina declared in 1865 that they had to be “restrained from theft, idleness, vagrancy and crime.”  Laws governing slavery were replaced with Black Codes governing free black people — making the criminal-justice system central to new strategies of racial control....

Anything that challenged the racial hierarchy could be seen as a crime, punished either by the law or by the lynchings that stretched from Mississippi to Minnesota.  In 1916, Anthony Crawford was lynched in South Carolina for being successful enough to refuse a low price for his cotton.  In 1933, Elizabeth Lawrence was lynched near Birmingham for daring to chastise white children who were throwing rocks at her.

It’s not just that this history fostered a view of black people as presumptively criminal.  It also cultivated a tolerance for employing any level of brutality in response.  In 1904, in Mississippi, a black man was accused of shooting a white landowner who had attacked him.  A white mob captured him and the woman with him, cut off their ears and fingers, drilled corkscrews into their flesh and then burned them alive — while hundreds of white spectators enjoyed deviled eggs and lemonade.  The landowner’s brother, Woods Eastland, presided over the violence; he was later elected district attorney of Scott County, Miss., a position that allowed his son James Eastland, an avowed white supremacist, to serve six terms as a United States senator, becoming president pro tempore from 1972 to 1978.

This appetite for harsh punishment has echoed across the decades. Late in the 20th century, amid protests over civil rights and inequality, a new politics of fear and anger would emerge.  Nixon’s war on drugs, mandatory minimum sentences, three-strikes laws, children tried as adults, “broken windows” policing — these policies were not as expressly racialized as the Black Codes, but their implementation has been essentially the same.  It is black and brown people who are disproportionately targeted, stopped, suspected, incarcerated and shot by the police.

Hundreds of years after the arrival of enslaved Africans, a presumption of danger and criminality still follows black people everywhere.  New language has emerged for the noncrimes that have replaced the Black Codes: driving while black, sleeping while black, sitting in a coffee shop while black.  All reflect incidents in which African-Americans were mistreated, assaulted or arrested for conduct that would be ignored if they were white.  In schools, black kids are suspended and expelled at rates that vastly exceed the punishment of white children for the same behavior.

Inside courtrooms, the problem gets worse.  Racial disparities in sentencing are found in almost every crime category.  Children as young as 13, almost all black, are sentenced to life imprisonment for nonhomicide offenses.  Black defendants are 22 times more likely to receive the death penalty for crimes whose victims are white, rather than black — a type of bias the Supreme Court has declared “inevitable.”

The smog created by our history of racial injustice is suffocating and toxic.  We are too practiced in ignoring the victimization of any black people tagged as criminal; like Woods Eastland’s crowd, too many Americans are willing spectators to horrifying acts, as long as we’re assured they’re in the interest of maintaining order.

Amidst persistent difficulties with lethal injection drugs, Ohio legislator to propose use of fentanyl taken from drug busts for executions

As reported in this local article, one "Ohio lawmaker has an innovative solution to the state's problem securing execution drugs: use fentanyl seized by police instead." Here is more:

Rep. Scott Wiggam, R-Wooster, is working on legislation to allow Ohio prison officials to obtain fentanyl from drug busts. That option is far more humane than the electric chair or firing squad – options that states are considering as pharmaceutical companies cut off access to execution drugs.

"This is a much less violent way than the electric chair and the latest lethal injection (Dennis McGuire's 2014 death) that took 26 minutes," Wiggam told The Enquirer. "This is a much more humane way."

Fentanyl is a powerful opioid involved in 3,431 overdose deaths in 2017, according to Ohio Department of Health records. Ohio Highway Patrol seized more than 108 pounds of fentanyl in 2018, according to state records. Wiggam sent out an email requesting support for the proposal from fellow lawmakers, the Columbus Dispatch first reported.

Gov. Mike DeWine has stalled the state's executions while Ohio's prison system seeks an alternative way to execute Death Row inmates. A federal magistrate compared the effects of one of the drugs used, midazolam, to waterboarding....

The state's last execution was Robert Van Hook on July 18, 2018. Van Hook was convicted of killing and disemboweling neighbor David Self in February 1985. Ohio has scheduled 22 executions through 2022. The next execution is set for Nov. 13. Cleveland Jackson was convicted of killing 17-year-old Leneshia Williams and 3-year-old Jayla Grant in Lima in 2002.

Wiggam said he wanted to focus the discussion about Ohio's death penalty around ways to carry out executions currently required by state law rather than abandoning the process because it was too difficult to find drugs. "This is certainly a workaround," he said. "This is something that we know can bring deaths quickly to individuals."

Senate President Larry Obhof has said he's happy to explore other options. "We are all concerned that if you're going to have capital punishment, you should have a process in place that courts are willing to accept and meets constitutional muster," he told The Enquirer earlier this year.

No other state has proposed using seized fentanyl to Wiggam's knowledge. Nebraska was the first state to use fentanyl as part of an execution in August 2018. The drug was obtained by a license pharmacy in the United States, according to a NPR report.

A few (of many) prior recent related posts:

• New Ohio Gov puts halt to all executions until Ohio develops new execution method 
• Ohio's new governor delays first scheduled execution under his watch based on concerns about lethal-injection drugs
• Highlighting, though Ohio's remarkable recent experience, a possible tipping point on midazolam as a lethal injection drug 
• Ohio Governor officially postpones three more scheduled executions 
• Reviewing Ohio's (now-suspended) execution realities
• Ohio officials apparently seeking to avoid any paper trail as it tries to reboot its machinery of death
• Ohio Gov DeWine now reportedly prepared to move forward with executions he delayed ... even without new lethal-injection protocol

Some fitting context for thinking about deaths while incarcerated

I have not written about Jeffrey Epstein's death while incarcerated in part because so many others are writing about it, and in part because so many other people die in jails and prisons without getting the attention and generating the scrutiny surrounding Epstein's death.  But Ken White has this new piece in The Atlantic, headlined "Thirty-Two Short Stories About Death in Prison," that provides some of the context I find fitting.  Here is how the piece gets started and a few of the stories:

Jeffrey Epstein’s name and face are everywhere following his death.  Even as an investigation reveals that the Metropolitan Correctional Center, where he died, was terminally short-staffed and relied on untrained guards who failed to monitor him, conspiracy theories persist.  Americans who believe in their justice system assert that it is obvious that he was murdered, and that jailers could not possibly be so incompetent, cruel, or indifferent as to let such a high-profile prisoner commit suicide.

Here, to help you evaluate that claim, are 32 short stories about in-custody deaths or near-deaths in America.

These stories don’t mention Jeffrey Epstein, but they are about him.  Epstein was incarcerated in the United States of America, and this is how the United States of America, the mightiest and richest nation there is or ever has been, treats incarcerated people.  When you say, “There is no way that guards could be so reckless, so indifferent, so malicious as to just let someone as important as Epstein die,” this is how 32 Americans respond.  Many, many more could respond in kind....

Terrill Thomas died of dehydration in his cell in Milwaukee after jailers turned off the water to his cell for seven days. The jail was under the leadership of then-Sheriff David Clarke, a hero to law-and-order types.

Jonathan Magbie, a paraplegic in a wheelchair who needed 24-hour care, was arrested for marijuana possession in Washington, D.C., in 2008.  He required a ventilator to breathe when he slept. The jail didn’t have the facilities to care for him, and so he died in jail.

Andrew Holland died in a restraint chair in San Luis Obispo County, California.  He was strapped to the chair, naked, for two days. If you like, you can watch video of the guards laughing as medics try fruitlessly to perform CPR, though I would not recommend it.

"After the Crime: Rewarding Offenders’ Positive Post-Offense Conduct"

The title of this post is the title of this notable new paper authored by Paul Robinson and Muhammad Sarahne now available via SSRN. Here is its abstract:

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals.  After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.

Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment.  This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction, the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed), the reformed offender, who takes affirmative steps to leave criminality behind, and the redeemed offender, who out of genuine remorse tries to atone for the offense.

The essay considers how one might operationalize a system for giving special accommodation to such offenders.  Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.

"Gatekeepers: The Role of Police in Ending Mass Incarceration"

The title of this post is the title of this lengthy new Vera Institute report.  Here is a paragraph from the report's introduction:

With a growing consensus that local jails are a primary locus of mass incarceration, data on arrest trends points to an urgent need to focus more deliberately on one of the problem’s primary points of origin: policing practices.... Police officers, as gatekeepers of the criminal justice system, hold almost exclusive authority — by way of citations, arrests, and even physical force — to enforce and regulate the law.  And they have increasingly been asked to do this in situations that involve societal problems that would be better resolved in the community — problems like homelessness, mental illness, and substance use.  Although arrest volume is down across almost all offense categories since its high-water mark of 15 million in 1997, nationally there are still roughly 28,000 arrests every day, which equates to one arrest every three seconds or approximately 10.5 million every year.  By virtue of their arrest, all these people face probable jail incarceration.  This volume does not reflect an increase in arrests for serious crimes.  In fact, the proportion of serious violent crimes among all arrests — less than 5 percent — has not changed in decades.  Rather, arrests most often occur in response to minor offenses — including drug use violations and disorderly conduct — which account for more than 80 percent of total arrests.  This mass enforcement of relatively minor law violations suggests that policing practices currently tend toward punitive approaches — that is, those that prioritize arrest and frequently lead to time behind bars—in ways that are often not necessary to achieve public safety.

In speech to police, Attorney General Barr promises proposal to speed up death penalty and ratchet up drug war while taking swipe at progressive prosecutors

Attorney General William Barr delivered these extended remarks on Monday at the Grand Lodge Fraternal Order of Police's 64th National Biennial Conference.  The AG's initial comments about the death of Jeffrey Epstein has received the most press coverage, but criminal justice reformers should be more interested in his comments on the death penalty, progressive prosecutors ad federal enforcement efforts. Here are excerpts:

This Administration will not tolerate violence against police, and we will do all we can to protect the safety of law enforcement officers. I will share with you one proposal that we will be advancing after Labor Day.  We will be proposing legislation providing that in cases of mass murder, or in cases of murder of a law enforcement officer, there will be a timetable for judicial proceedings that will allow imposition of any death sentence without undue delay.  Punishment must be swift and certain.

There is another development that is demoralizing to law enforcement and dangerous to public safety.  That is the emergence in some of our large cities of District Attorneys that style themselves as “social justice” reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.

These anti-law enforcement DAs have tended to emerge in jurisdictions where the election is largely determined by the primary.  Frequently, these candidates ambush an incumbent DA in the primary with misleading campaigns and large infusions of money from outside groups.

Once in office, they have been announcing their refusal to enforce broad swathes of the criminal law.  Most disturbing is that some are refusing to prosecute cases of resisting police. Some are refusing to prosecute various theft cases or drug cases, even where the suspect is involved in distribution.  And when they do deign to charge a criminal suspect, they are frequently seeking sentences that are pathetically lenient.  So these cities are headed back to the days of revolving door justice. The results will be predictable. More crime; more victims.

One of my messages today is that the American people need to pay close attention to issues of public safety in their communities.  As a society we should not take our police officers for granted....

Two of my highest priorities are continuing the fight against violent crime and combating the opioid epidemic and the scourge of other dangerous drugs, like resurging methamphetimine.

When I last served as Attorney General in the early 90’s, violent crime was at all-time high levels in the country.  Starting in the 1960’s, we had gone through three decades of “reform” that turned our criminal justice system into a laughable revolving door. Incarceration rates dropped precipitously; and crime rates tripled, reaching a high in 1991-92.

Starting with the Reagan Administration, and running though the Bush, Clinton, and Bush years, we strengthened our criminal justice systems at both the Federal and state level.  We focused on getting chronic violent offenders off the streets and into prisons to serve meaningful sentences that protected the community.  We worked closely with our State and local partners on programs like Weed & Seed and Triggerlock.

The result?  A steady and sharp drop in violent crime starting in 1992.  Today, violent crime has been cut in half.

Unfortunately, in the last few years of the Obama Administration, the violent crime rate started rising again.  Days after his inauguration, President Trump issued an Executive Order with two clear directives.  First, he declared that this Administration would reduce crime in America.  Second, he directed the Department of Justice to take the lead on Federal actions to support law enforcement efforts nationwide and to collaborate with State, tribal, and local jurisdictions to restore public safety to all of our communities.

We take this responsibility seriously and, working closely with our State and local partners, we have succeeded once again in driving crime rates back down.  I am proud of our work together on Project Safe Neighborhood, and a variety of joint anti-gang and anti-gun crime efforts.

We have made a difference, but we cannot rest on our laurels.  Crime levels are still too high and we must keep up a full court press. In the weeks ahead, we will be doubling down on our attack on violent crime.  We will be expanding our efforts against gun violence and violent gangs. Once again, we plan on doing this shoulder-to-shoulder with our State and local partners.

On the drug front, we are facing a monumental challenge. To be frank, the Obama Administration showed little interest in prosecuting the fight against dangerous drugs. A tsunami built up and has been crashing over the country, bringing death and destruction.

The death toll from opioids alone is higher than we would sustain in a major war. Indeed, in a single year, we lose more people to opioids than we lost during the entire Vietnam War.

Fortunately, this Administration has thrown down the gauntlet. It declared a national emergency, marshalled the Nation’s resources, and is fighting back. We have a robust program to attack the problem of over-prescription and diversion of legal opioids, and we are definitely having an impact. Prescription rates are markedly down. I am confident these successes will accelerate.

I think our attack on illicit opioids is building momentum.  It is going to be a long difficult road, but we are gaining real traction.  As you know, this Administration has sharply increased drug trafficking prosecutions, especially as to opioids.  In 2018 we prosecuted 36 percent more opioid-related offenses than we did in the previous year.  Fentanyl prosecutions were up 200 percent.

Fentanyl and other synthetics are especially deadly. Unless we make progress on fentanyl, the gains we are making elsewhere can be overwhelmed.  A year ago, the Department launched Operation SOS, targeting synthetics in 10 high-impact districts. The first year’s results are promising, and I plan to ratchet up this initiative.

"The Twenty-First Century Death Penalty and Paths Forward"

The title of this post is the title of this new paper authored by Jeffrey Omar Usman now available via SSRN.  Here is its abstract:

Today, states are moving closer to another moment of critical decision-making in charting the course of the death penalty in the United States.  Unlike the sudden and dramatic immediacy of Furman, however, this moment is arriving through a slower and quieter progression, or perhaps more accurately a deceleration.  While not abolished, in many states application of the death penalty is grinding or has ground to a halt.  If the status quo holds, the vast majority of defendants who are sentenced to death by the states will instead live out their natural lives in prison for decades dying of old age in prison while still waiting on death row with a variety of challenges still pending in the courts.

This reality presents an opportunity, or perhaps more accurately a responsibility, for renewed reflection by state legislators.  There at least three clearly discernable paths forward that states could follow.  One is to continue the present course with states maintaining the status quo which leads to some persons who are sentenced to death being executed often after decades on death row while most death-row inmates die from natural causes in prison.  Two, states can abandon the death penalty in favor of the maximum sentence being life without the possibility of parole.  Three, states can streamline the process for addressing legal challenges after a defendant has been convicted and sentenced to death to prevent decades of delay before executions are carried out.

In seeking to derive a better understanding of the current realities of actual application of death penalties and to explore the potential paths forward for the states, this article begins in Section I by addressing delayed application of the death penalty in death penalty states.  Section II next explores the transformation that has occurred in the interval between sentencing and execution from colonial America to the present.  In doing so, Section II addresses the reasons for the significant elongation of the interval between sentencing and execution that has occurred over the last four decades. Section III examines some of the deleterious consequences that arise from these delays for those sentenced to death, the families of victims, and the states themselves.  Section IV begins to delineate that paths that are available to the states in moving forward, considering some of the pitfalls and possibilities.

Federal district court orders Missouri to improve parole procedures to comply with Miller and Eighth Amendment

As reported in this local article, a "federal court has ordered Missouri to overhaul how it handles the parole process for offenders who committed violent crimes as a minor."  Here is more about a notable ruling:

U.S. District Judge Nanette K. Laughrey issued declaratory and injunctive relief, ordering the Missouri Probation and Parole Board to improve transparency, accountability, and training for youthful offender parole hearings.

“Specifically, the Court found that a number of Defendants’ policies, practices, and customs combine to deprive those serving [juvenile life without parole] sentences of a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” the 23-page order states.

The judgment included nearly two dozen procedures — developed through mediation — the state is required to “promptly implement.”...  The Missouri Probation and Parole Board has already adopted some of the procedures, such as allowing note taking during hearings.

The extensive changes come as a result of a class action lawsuit, Brown v. Precythe, filed by the MacArthur Justice Center, targeting the parole board’s alleged failure to comply with state and federal law when it comes to juvenile offenders serving mandatory life without parole sentences.

“This is a significant and long-awaited victory,” said Amy E. Breihan, MacArthur Justice Center’s Missouri director. “Seven years after the Supreme Court invalidated these juvenile [life without parole] sentences, Missouri is finally being held accountable for providing impacted folks a meaningful and realistic opportunity for release.”...

In 2016, SB 590 was passed by the Missouri General Assembly and signed into law.  The bill, in part, allows offenders sentenced as a juvenile to life without parole prior to Aug. 28, 2016, to “submit to the parole board a petition for a review of his or her sentence, regardless of whether the case is final for purposes of appeal, after serving twenty-five years of incarceration on the sentence of life without parole.”

The original lawsuit alleged the parole board treated those individuals “with arbitrary and cruel practices.”  The judge sided with the inmates, ordering an overhaul of how the parole hearings are handled.  “Perhaps the most important part of the order,” said Breihan, “is that it prohibits the Parole Board from denying parole based solely on the seriousness of the offense, and requires them to make decisions through a youth-focused lens. Indeed, these decisions should be based on who these men and women have become over time, not their worst act as children.”

The full 23-page court order can be found at this link.

"Between 2007 and 2017, 34 States Reduced Crime and Incarceration in Tandem"

The title of this post is the title of this recent posting over at the Brennan Center for Justice authored by Cameron Kimble and Ames Grawert. The subheading provide a summary of its main points: "Some still argue that increasing imprisonment is necessary to reduce crime. Data show otherwise." Here are excerpts:

It’s now been several decades since states around the country began experimenting with criminal justice reform — specifically, by reducing the number of people behind prison bars. Now we can start to take stock of the results. They’re encouraging — but with the prison population still sky-high, there’s a lot more to do.

Between 2007 and 2017, 34 states reduced both imprisonment and crime rates simultaneously, showing clearly that reducing mass incarceration does not come at the cost of public safety. The total number of sentenced individuals held in state prisons across the U.S. also decreased by 6 percent over the same decade. And these drops played out across the country....

While it’s tempting to focus on the Southern states — which were some of the most notable early adopters of reform — reductions in the last decade occurred across the board. The Northeast saw the largest average decline in imprisonment rate (24 percent), with only Pennsylvania recording an increase (3 percent). Crime rates also dropped fastest in the Northeast region, falling by just over 30 percent on average.

By contrast, the Midwest saw imprisonment rates drop by only 1 percent on average, and that modest reduction was driven by Michigan (20 percent), where recent criminal justice reforms are focused on reducing recidivism. With returns to prison down 41 percent since 2006, the state is home to one of the most comprehensive statewide reentry initiatives in the country....

It’s tough to say why some states successfully reduced their prison population while others failed. One possible commonality relates to socioeconomic well-being. Over half of the states where imprisonment rates grew had poverty rates above the national average as well. Those states were also some of the hardest hit by the opioid epidemic. West Virginia typifies this experience: crime rates dropped, but incarceration rose amidst the state’s struggles with opioid abuse and poverty....

The data clearly demonstrate that the United States’ prison population can be reduced without sacrificing the public safety gains of recent decades. Thirty-four states seem to have accepted this notion, as reflected by their (often) sharp declines in rates of imprisonment. Others lag far behind.

To this day, the United States imprisons its citizens at a higher rate than any other Western democracy. Though recent progress is surely encouraging, at the current rate of decarceration it would take nearly 40 years to return to imprisonment rates observed in 1971 — the last time the national crime rate was this low. And some aspects of justice reform are moving backwards. According to one recent study, jail reform is a purely urban phenomenon, as rural incarceration rates are actually increasing.

There’s no single solution to mass incarceration. Instead, states must continue making efforts to reduce imprisonment. And the minority of states that have not embraced decarceration need not look far to see that overreliance on incarceration is an ineffective and expensive means of keeping the public safe.

Reviewing recent state capital contractions as feds seek to restart executions

US Attorney General William Barr's announcement of a change in the federal execution protocol and scheduling of five federal executions (basics here) could give the impression that the death penalty is resurgent in the United States.  But this recent article from The Appeal Political Report provides a useful review and reminder that the death penalty continued to be contracting in the states.  The article is headlined "With New Law, Oregon Joins Wave of States Restricting or Halting the Death Penalty," and here are excerpts:

Movement is building against the death penalty at the state level, even as the Trump Administration calls for expanding its use and prepares to restart federal executions.

Oregon became the latest state to act against it last week when Governor Kate Brown signed Senate Bill 1013, which considerably narrows the range of capital offenses.

The reform does not abolish the death penalty, which is inscribed in the state Constitution and so can only be eliminated by referendum.  But the legislature circumvented that requirement by redefining “aggravated murder” (the only category eligible for the death penalty in Oregon) and removing most circumstances that currently warrant the “aggravated” moniker.

“The concept of this bill is to close the front door to the death penalty,” said Lynn Strand, the chairperson of Oregonians for Alternatives to the Death Penalty (OADP). Strand expects the law to be “quite effective” at stopping new death sentences and she called it “a giant step.”

“But it does not address what you do with the back door,” she added.  Indeed SB 1013 is not retroactive. It leaves 30 people on death row, largely for crimes that are not capital offenses under the new law, according to Jeffrey Ellis, an attorney with the Oregon Capital Resource Counsel....

The governor has the authority to commute existing death sentences. In explaining her support for SB 1013, Brown called the death penalty “immoral” and “dysfunctional.”  These are adjectives that apply to past sentences as much as to new ones. But she has yet to publicly signal whether she is considering commutations. Her office did not answer a request for comment....

Oregon does have a moratorium on executions. It was imposed by John Kitzhaber, Brown’s predecessor.  Brown has maintained it in place since taking office in 2015. The moratorium is important, but it is insufficient to end the death penalty’s moral and financial costs, and to remove its threat from a prosecutor’s arsenal of tools.  It could also be lifted by a future governor. “The moratorium stops executions,” Robert Dunham, executive director of the Death Penalty Information Center, told the Sacramanto Bee about California’s in July. “It doesn’t stop the machinery of death from moving forward.”

Oregon law specified 19 circumstances that label a murder “aggravated.” SB 1013 shrinks that list to the murder of a child under 14, a murder committed by someone who is already in prison, a terrorist act that kills more than two people, and the murder of law enforcement officers. In addition, jurors will no longer be asked to judge a person’s “future dangerousness” when weighing a death sentence.

These changes are leading prosecutors to drop their plan to seek the death penalty in a criminal case underway in Malheur County. Some prosecutors, such as District Attorney Patty Perlow of populous Lane County (home of Eugene), fought the bill....

Oregon is the fifth state to restrict, halt, or abolish capital punishment over the last 10 months.  In October, Washington State’s Supreme Court abolished it and also commuted the sentences of all eight people on death row.  Then, California Governor Gavin Newsom imposed a moratorium on executions in March; the New Hampshire legislature abolished the death penalty in May; and the New Mexico Supreme Court commuted the sentences of the only two people on death row there in June, a decade after the state abolished the death penalty for new crimes.

New Mexico’s decision leaves New Hampshire as the only state to abolish the death penalty but still have someone on death row.  Death penalty opponents are now actively planning their next moves in Colorado, Pennsylvania, and Wyoming.  At the county level, people have successfully run for prosecutor on a promise to not seek the death penalty, and capital punishment looms large in other local elections this fall.

Another two more open access articles from FSR issue on "The Tyranny of the Trial Penalty"

In this post a few months ago, I highlighted the publication of the latest extraordinary (double) issue of the Federal Sentencing Reporter titled "The Tyranny of the Trial Penalty: The Consensus that Coercive Plea Practices Must End."  As mentioned before, this FSR issue includes 16(!) original pieces on various aspects of "The Trial Penalty," and it is fully available on-line at this link. 

As also mentioned before, though a full subscription to FSR is needed for full on-line access to all FSR content, the University of California Press has graciously agreed to make various articles from this special issue available to all on-line for a limited period.  Valuably, the issue's terrific introduction authored by Norman Reimer, executive director of NACDL, and his colleague Martín Sabelli, NACDL's second vice president, is to remain freely available for an extended period of time.  And \these two additional pieces are now accessible to all (with a paragraph quoted here):

The Insidious Injustice of the Trial Penalty: “It is not the intensity but the duration of pain that breaks the will to resist.” by Emma Andersson and Jeffery Robinson

Like most abusive practices in the criminal legal system, the trial penalty has a greater impact on people of color and the poor than it does on others. Although wealthy clients cannot buy their way out of a trial penalty, they can mitigate its impact by paying higher fines or penalties in exchange for shorter sentences. Bail pending resolution of the case can also impact the ultimate sentence — people who are out of custody at the time of sentencing tend to get shorter sentences that those who are in custody. Money and race play out in the bail system like they do in every other part of the criminal legal system. In addition to shorter sentences, the conditions of confinement faced by wealthy people (who can hire consultants to try to improve placement in a prison system) can be extraordinarily better than those generally faced by people of color and the poor.

Innocents Who Plead Guilty: An Analysis of Patterns in DNA Exoneration Cases by Glinda S. Cooper, Vanessa Meterko and Prahelika Gadtaula

Since 1989, the year of the first DNA exoneration, more than 360 people have been exonerated based on DNA evidence. The vast majority (> 98 percent) had been wrongfully convicted of serious felonies involving homicide or sexual assault. These DNA exonerations represent 15 percent of the 2,359 exonerations documented in the United States. Among the many insights drawn from these wrongful convictions is the realization that a guilty plea is not an uncommon outcome for innocent people who have been charged with a crime: 11 percent of the DNA exonerees recorded by the Innocence Project pleaded guilty.  This paper explores demographic, crime-related, and sentencing factors associated with the decision of people to plead guilty to a crime they did not commit.

Prior related posts:

• "The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It" 
• Latest (double) issue of FSR covers "The Tyranny of the Trial Penalty": An introduction 
• Two new open access articles from FSR issue on "The Tyranny of the Trial Penalty"
• Two more open access articles from FSR issue on "The Tyranny of the Trial Penalty"  

Fifth Circuit articulates limiting account of FIRST STEP Act crack resentencing

A helpful colleague made sure I did not miss the notable Fifth Circuit opinion on FIRST STEP Act resentencing this past week in US v. Hegwood, No. 19-40117 (5th Cir. Aug 8, 2019) (available here). Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, but the language of that section left unclear whether a sentencing court is to conduct a full resentencing under the Act or a more limited sentencing modification for eligible offenders. District courts have been dealing with this resentencing question in various ways, and the Fifth Circuit panel ruling in Hegwood may be the first to address the issue. Here is its key passages:

This appeal concerns the First Step Act, in which Congress permitted a sentencing court to “impose a reduced sentence as if . . . the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.” The issue is whether district courts are authorized to conduct a plenary resentencing, which would include recalculating the Sentencing Guidelines range as if the defendant were being sentenced for the first time under present law, or whether courts are limited to reductions resulting from the Fair Sentencing Act. Concluding that the First Step Act does not allow plenary resentencing, we AFFIRM....

Hegwood argues that a new sentence under the First Step Act requires a Guidelines calculation to be made that is correct as of the time of the new sentencing, and Section 3553(a) factors are to be applied anew....

It is clear that the First Step Act grants a district judge limited authority to consider reducing a sentence previously imposed. The calculations that had earlier been made under the Sentencing Guidelines are adjusted “as if” the lower drug offense sentences were in effect at the time of the commission of the offense. That is the only explicit basis stated for a change in the sentencing. In statutory construction, the expression of one thing generally excludes another. TRW Inc. v. Andrews, 534 U.S. 19, 28-29 (2001).  The express backdating only of Sections 2 and 3 of the Fair Sentencing Act of 2010 — saying the new sentencing will be conducted “as if” those two sections were in effect “at the time the covered offense was committed” — supports that Congress did not intend that other changes were to be made as if they too were in effect at the time of the offense.

These limits make the First Step Act similar to Section 3582(c), which opens the door only slightly for modification of previously imposed sentences for certain specified reasons, including the lowering by the Sentencing Commission of the sentencing range that was in effect for the defendant at the time of initial sentencing. 18 U.S.C. § 3582(c)(2).  The Supreme Court held that “Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 826 (2010).

We do not see any conflict in this interpretation of Section 404 of the First Step Act with the provisions of 18 U.S.C. §§ 3582 and 3553. The district court under Section 3582(a) is only required to consider the Section 3553(a) factors “to the extent that they are applicable.” The government, relying on the fact that the First Step Act gives the court discretion whether to reduce a sentence, argues that the ordinary Section 3553(a) considerations apply to determine whether to reduce the defendant’s sentence.

The mechanics of First Step Act sentencing are these.  The district court decides on a new sentence by placing itself in the time frame of the original sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act.  The district court’s action is better understood as imposing, not modifying, a sentence, because the sentencing is being conducted as if all the conditions for the original sentencing were again in place with the one exception.  The new sentence conceptually substitutes for the original sentence, as opposed to modifying that sentence.

As a matter of statutory interpretation, I can understand why the Fifth Circuit is inclined in Hegwood to approach FSA retroactivity as only a modest sentence modification proceeding.  But as a matter of sound policy and practice, I think it makes more sense to approach these cases as full resentencings with all subsequent changes in both  applicable sentencing laws and relevant sentencing facts available for, an integral to, the judge's resentencing decision.  Otherwise, as seems to be the case in Hegwood, a defendant already subject to the undue harshness of the old 100-1 crack mandatory minimums is still forced to endure the undue harshness of other problems with the guidelines that have been fixed since his original sentencing.

I am hopeful, but not optimistic, that only a small number of defendants will be adversely impacted by the Hegwood approach to resentencing. And this case provides yet another example of how implementation of statutory sentencing reform can often be just as important for some defendants as the reform itself.

"Prisons are packed because prosecutors are coercing plea deals. And, yes, it's totally legal."

The title of this post is the title of this new commentary authored by Clark Neily, and it has this subheading: "American prosecutors are equipped with a fearsome array of tools they can and do use to discourage people from exercising their right to a jury trial." I recommend the full piece and here are excerpts:

America is the most prosperous country in the history of the world.  We excel at innovation and mass production — and nowhere is that more true today than our criminal justice system, which features a streamlined process for transforming millions of suspects into convicted criminals quickly, efficiently and without the hassle of a constitutionally prescribed jury trial.

It’s called coercive plea bargaining, and it’s the secret sauce that helps us maintain the world’s highest incarceration rate.

According to a recent study from the Pew Research Center, of the roughly 80,000 federal prosecutions initiated in 2018, just two percent went to trial.  More than 97 percent of federal criminal convictions are obtained through plea bargains, and the states are not far behind at 94 percent.  Why are people so eager to confess their guilt instead of challenging the government to prove their guilt beyond a reasonable doubt to the satisfaction of a unanimous jury?

The answer is simple and stark: They’re being coerced.

Though physical torture remains off limits, American prosecutors are equipped with a fearsome array of tools they can use to extract confessions and discourage people from exercising their right to a jury trial.  These tools include charge-stacking (charging more or more serious crimes than the conduct really merits), legislatively-ordered mandatory-minimum sentences, pretrial detention with unaffordable bail, threats to investigate and indict friends or family members, and the so-called trial penalty — what the National Association of Criminal Defense Lawyers calls the “substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after a trial.”...

The framers of the U.S. Constitution put citizen participation at the very heart of our criminal justice system in the form of jury trials.  With coercive plea bargaining, prosecutors have ripped that heart right out of that system and made sure that ordinary citizens have almost nothing to do with the administration of criminal justice in America.

Our system wasn’t designed to function that way, and growing public disillusionment suggests that it won’t — not for much longer, anyway.