Sentencing Law and Policy

Citing prior "attempt to flee the country," feds urging that Elizabeth Holmes start her prison sentence in April

If producers are thinking about developing Season 2 of The Dropout, a legal filing today by federal prosecutors provide some dramatic materials.  This CNN article, headlined "Elizabeth Holmes made an ‘attempt to flee the country’ after her conviction, prosecutors say," provides these details:

Elizabeth Holmes made an “attempt to flee the country” by booking a one-way ticket to Mexico departing in January 2022, shortly after the Theranos founder was convicted of fraud, prosecutors alleged in a new court filing Friday.

Holmes was convicted last January of defrauding investors while running the failed blood testing startup Theranos. In November, she was sentenced to more than 11 years in prison. She has appealed her conviction and does not start her prison sentence until this spring, a waiting period that prosecutors described as “generous” and due to her being pregnant.

The claim that she tried to leave the country last year surfaced as part of a new filing from prosecutors arguing that Holmes should begin serving her prison sentence rather than living on an estate reported to have $13,000 in monthly expenses for upkeep.

In the filing, prosecutors argue Holmes has not shown convincing evidence that she is not a flight risk, as her lawyers have stated, and used the alleged 2022 incident to support their concerns that she could pose such a risk. “The government became aware on January 23, 2022, that Defendant Holmes booked an international flight to Mexico departing on January 26, 2022, without a scheduled return trip,” the court filing states. “Only after the government raised this unauthorized flight with defense counsel was the trip canceled.”

The filing adds that prosecutors anticipate Holmes will “reply that she did not in fact leave the country as scheduled” but said “it is difficult to know with certainty” what she would have done “had the government not intervened.” Now, in the wake of her sentencing, prosecutors say “the incentive to flee has never been higher” and Holmes “has the means to act on that incentive.”...

The court filing includes an email from one of Holmes’ attorneys to the prosecution, claiming that the travel reservation was made before the verdict. In the email, Holmes’ attorney claims the former Theranos CEO hoped the verdict would be different and that she would be able to make this trip to attend the wedding of friends in Mexico.

In an earlier court filing, Holmes’ attorneys argued for her release from custody pending appeal, saying she was not a flight risk or a threat to the community. Holmes has been ordered to turn herself into custody on April 27, 2023, at which point her prison sentence will begin.

“There are not two systems of justice – one for the wealthy and one for the poor – there is one criminal justice system in this country,” prosecutors stated in the filing. They argue that “under that system, the time has come” for Holmes to answer for her crimes.

Some prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes 
• Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence 

Rounding up some recent notable reads

A busy week has left me behind on both my reading and blogging on various sentencing and punishment law and policy topics.  So I will try to do a bit of catch up through this round up:

From ABC News, "Alabama extends time for executions, ends automatic review"

From the AP, "Explainer: Biden inaction, mixed signals on death penalty"

From CNN, "Oklahoma’s attorney general says ‘the current pace of executions is unsustainable’ and wants to space them out"

From the FAMM Foundation, "Proposed BOP Rule Will Hurt Struggling Families"

From The Guardian, "Texas prisoners continue hunger strike in protest against solitary confinement"

From the Marshall Project, "How an Illicit Cell Phone Helped Me Take College Courses from Prison"

From Nonprofit Quarterly, "What the US’ Mass Incarceration Regime Costs Black Women"

From Reason, "Sentencing Commission Proposes Restricting Judges' Use of Acquitted Conduct"

From Rick Nevin, "Update: Continuing trend toward zero youth incarceration"

From Spectrum News NY1, "Path to Power: Hakeem Jeffries' push to reform the criminal justice system"

As always, I welcome reader comments on which of these stories or others may merit additional blog time.  It has been fun to see a more active comment space lately, and I hope that always will include readers highlighting new stories or worthwhile reading. 

"The Problem with Capital Pleas"

The title of this post is the title of this recent paper authored by William W. Berry III available via SSRN. Here is its abstract:

In United States v. Jackson, the Supreme Court recognized the importance of protecting an individual's jury trial rights in capital plea bargaining.  With the subsequent Brady trilogy, however, the Court’s plea bargaining doctrine migrated away from Jackson and accepted pleas in capital cases as long as the defendant had counsel.

Over the past twenty years, the capital punishment landscape has significantly narrowed, with only twenty new death sentences a year, most coming from the few counties that have the economic resources to pursue the death penalty. The decreased likelihood of receiving a death sentence could, in theory, convince more capital defendants to go to trial as opposed to entering plea deals, especially as juries, even in Texas, are increasingly disinclined to impose death sentences.  But the risk of execution remains too heavy a thumb on the scale.  The effect of this dynamic is that prosecutors essentially have the power to impose mandatory LWOP sentences in homicide cases, simply by threatening to pursue the death penalty.

As such, this essay makes the case that, taken together, the values of the Fifth (right not to plead guilty), Sixth (trial by jury, right of confrontation, right to present witnesses), and Eighth Amendments (right to heightened scrutiny in capital cases) should lead the Court, legislatures, or prosecutors themselves to eliminate plea agreements in capital cases, particularly those that result in LWOP sentences.  Such bargained sentences almost certainly reflect the coercion of the prosecutor in an unequal bargaining dynamic rather than a voluntary acceptance of a proportional punishment for one’s crime.

Encouraging big-city homicide trends to close 2022 and start 2023

In this post at mid-year 2022, I flagged this AH Datalytics webpage's "YTD Murder Comparison" Dashboard that collects homicide data from police reports in nearly 100 big cities.  I noted in that post that, after significant increases in homicides throughout the US in 2020 and 2021, it was encouraging that the dashboard then showed that nearly two-thirds of big cities were reporting  homicide declines in 2022 relative to 2021 and that nationwide murders in large cities were down overall more than 2% at mid-year 2022.  Fast-forward six months, and there is more encouraging homicide data coming from big cities.

Specifically, with nearly all police data for 2022 collected, this dashboard as of this evening indicates that nearly two-thirds of all big cities reported that homicides wre down in 2022 relative to 2021 and that the total nationwide murders in large cities were down overall nearly 5% at by year end 2022.  Of course, these reported homicide declines for 2022 follow notably high homicide rates in many locales in 2021, and we still have a long way to go to get back to pre-pandemic homicide levels.

Still, these data are encouraging, and the downward trends in homicides in our nation's largest cities for all of 2022 may be carrying over to the start of 2023.  Specifically, based on the dashboard data and (linked) police reports, we see:

Chicago homicides down 13% in 2022 and down another 17% in first two weeks of 2023

Los Angeles homicides down 5% in 2022 and down another 39% in first two weeks of 2023

New York City homicides down 11% in 2022 and down another 12% in first two weeks of 2023

Philadelphia homicides down 9% in 2022 and down another 43% in first two weeks of 2023

Of course, these four very big cities are not fully representative of what may be going on with homicides nationwide as 2023 gets started, and homicide trends in the first two weeks of January could change in many ways in the weeks and months ahead.  Still,  these encouraging data reinforce my hope that surging homicides in 2020 and 2021 were mostly a pandemic era phenomenon and that lower homicide rates may soon be more common. 

En banc Eleventh Circuit limits reach of career offenders under USSG based on plain text of guideline for drug offenses

Last month, as noted in this post, the en banc Eleventh Circuit gave federal drug defendants a big sentencing win by giving a broad reading to the FIRST-STEP-amended mandatory-minimum safety valve provision.  A helpful reader alerted me to the fact that today the en banc Eleventh Circuit issued another ruling that helps some drug defendants at sentencing in US v. Dupree, No. 19-13776 (11th Cir. Jan.18, 2023) (available here).  This matter is another case with a Kisor role shifting guidleine interpretation (background here), and here is how the opinion of the Court begins:

This appeal requires us to consider whether an inchoate offense qualifies as a “controlled substance offense” for purposes of the career offender sentencing enhancement under the United States Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2018). In this case, the district court sentenced Brandon Dupree as a career offender based partly on his conviction for conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846.  Dupree appealed his sentence, arguing that his § 846 conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of “controlled substance offense” omitted conspiracy and other inchoate crimes.

A panel of this Court affirmed Dupree’s sentence, concluding that our decisions in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995), foreclosed his argument.  United States v. Dupree, 849 F. App’x 911 (11th Cir. 2021) (unpublished), reh’g en banc granted, opinion vacated 25 F.4th 1341 (11th Cir. 2022). We granted Dupree’s petition to rehear the case en banc.  After careful consideration, and with the benefit of oral argument, we hold that the definition of “controlled substance offense” in § 4B1.2(b) does not include inchoate offenses.  We therefore vacate Dupree’s sentence and remand to the district court for resentencing.

Here is a choice paragraph from the start of the dissent by Judge Luck:

I respectfully dissent for two reasons.  First, despite what the majority opinion says it is doing, it is not really applying Kisor’s clarification to Stinson.  Under the majority opinion’s approach, the Kisor clarification applies to Stinson the same way a magnifying glass applies to an ant on a sunny day — total annihilation.  The majority opinion is actually applying Kisor to overrule Stinson.  But the Supreme Court didn’t overrule Stinson and we can’t overrule a Supreme Court opinion on our own.  Only the Supreme Court can do that.  Second, even if the majority opinion isn’t overruling Stinson, the Kisor clarification doesn’t apply to Stinson.

The look of a federal capital moratorium(?): prosecutors not seeking death penalty for El Paso Walmart shooter

As detailed in this Wall Street Journal piece, the "Justice Department won’t seek the death penalty for the man accused of killing 23 people in 2019 at a Walmart in El Paso, Texas, federal prosecutors said in a Tuesday court filing."  Here is more:

Patrick Crusius faces 90 federal charges for his alleged role in one of the deadliest mass shootings in U.S. history.  Of those charges, 45 have been deemed hate crimes, or crimes motivated by racial, religious, national-origin, sexual, gender or disability bias. Mr. Crusius, 21 years old at the time, is accused of traveling to the Texas border city to target Latinos in the attack. Nearly two dozen people were injured in the shooting.

Jury selection is expected to begin in his federal case in January 2024.  Mr. Crusius, now 24, was also indicted on state charges of capital murder and could face the death penalty if convicted. The state case would proceed after the federal case is done....

Months after taking office in 2021, Attorney General Merrick Garland ordered a nationwide halt to federal executions while he reviewed policies and protocols put in place by the Trump administration that led to the highest rate of federal executions in more than a century.  President Biden has said he would work to end federal executions.

The Justice Department last year chose to continue the pursuit of the death penalty against an alleged terrorist charged with killing eight people in New York City in 2017.  The Trump administration initially sought the death penalty against Sayfullo Saipov, who prosecutors said was inspired by Islamic State to carry out the Manhattan attack. Mr. Saipov’s attorneys asked Mr. Garland to withdraw the death penalty from the case but were turned down.

Justin Underwood, an attorney representing the family of Walmart shooting victim Alexander Hoffman, said they were disappointed by the Justice Department’s decision. “They’re disappointed the U.S. government won’t seek the death penalty on a mass murderer who drove 10 hours to seek out and kill Hispanic and Mexican people,” Mr. Underwood said. “If this guy doesn’t qualify for the death penalty, why on earth do we even have a federal death penalty statute?”

Mr. Underwood questioned why the federal government continued to pursue the death penalty in Mr. Saipov’s case in New York, but not in the Walmart shooting.  Mr. Hoffman’s widow and his two sons are now looking to the state’s case for justice, Mr. Underwood said.  “This might not be the Christian thing for me to say, but some people need to be killed and he certainly qualifies,” Mr. Underwood said. “I just put my faith in the state of Texas to seek justice in this case.”

Intriguingly, this Reuters article about this prosecutorial charging decision makes mention of a fact not noted by the WSJ that might be part of the story: "When he was taken into police custody minutes after the shooting, Crusius was in a psychotic state and treated with anti-psychotic medication, according to mental health professionals employed by the jail, a court filing said."  Mental health issues might well have influenced federal prosecutors here; Crusius's defense attorneys hoped it would accourding to this 2020 AP piece:

Lawyers for a man charged with shooting scores of people in a racist attack at a Texas Walmart say their client has diagnosed mental disabilities that should be a “red flag” for federal prosecutors considering whether to seek the death penalty.

Patrick Crusius “has been diagnosed with severe, lifelong neurological and mental disabilities” and was treated with antipsychotic medication following his arrest moments after the massacre in El Paso, his attorneys wrote in a court filing.

California working to clear condemned inmates from death row

This recent NPR piece, headlined "California says it will dismantle death row. The move brings cheers and anger," provides an interesting overview of the state of California's death penalty as it seeks  to clear the nation's largest (and largely dormant) death row.  I recommend the full piece, and here are excerpts:

California this week pushed ahead with controversial efforts to dismantle the largest death row system in America.

Under Gov. Gavin Newsom, the state is moving to make the transfer of condemned inmates permanent and mandatory after what the state's Department of Corrections and Rehabilitation (CDCR) calls a successful pilot program that voluntarily moved 101 inmates off death row into general population prisons across the state....

After a 45-day public comment period and a public hearing in March, the state hopes to start moving all 671 death row inmates – 650 men and 21 women — into several other prisons across the state with high-security units. Some prisoners will be able to get jobs or cellmates if they are mainstreamed into the general prison population.

The CDCR says the move allows the state "to phase out the practice of segregating people on death row based solely on their sentence." No inmates will be re-sentenced and no death row commutations offered, officials say.

Technically, the death penalty still exists in California. Prosecutors can still seek it. But no one has been put to death in the state in 17 years. And in 2019, Newsom imposed a moratorium on executions and he closed the death chamber at San Quentin, the decrepit and still heavily used 19th century prison overlooking San Francisco Bay.

Those who get prison jobs — as clerks, laundry or kitchen helpers – will see 70 percent of their pay go to victims' families, as required under Proposition 66. That 2016 voter-passed initiative amended California's Penal Code to require death-sentenced inmates to work and pay restitution....

But death penalty proponents and victims' rights advocates are frustrated and angry. "To hear this news is devastating," says Sandra Friend. She described feeling victimized all over again. Her 8-year-old son Michael Lyons was making his way home from school in Yuba City, Calif., in 1996 when he was abducted and sodomized by serial killer Robert Boyd Rhoades, who dumped the child's body in a riverbed....

In part, California's death penalty reforms grew out of 2016's Prop. 66, which promised to speed up the time between a death sentence and an execution. The successful ballot measure also required condemned prisoners to work and pay restitution. Now death penalty proponents accuse Newsom of exploiting a lesser-known section of Prop. 66 for his own ideological and political purposes.

"The governor has taken loopholes and nuances in the law and used them to give criminals — the worst criminals — a break," says Michael Rushford, president of the conservative Criminal Justice Legal Foundation. "To start mainstreaming people like Tiequon Cox, who killed an entire family in Los Angeles after going to the wrong address to do a gang hit, is an abandonment of justice. Injecting politics into criminal justice and public safety is insane. It's unjust, unfair and it's stupid."...

In California, Sandra Friend says it's outrageous that killers like Rhoades may "get rewarded," as she puts it, with expanded work options, even a cellmate. "For him to be able to leave death row and go into a cushier prison, having maybe possibly a cellie, having a job, is terrifying because he is the worst of the worst. He is a monster," she says.

State officials underscore that inmate transfers and their housing will depend on the specific facts of each inmate. "Their housing would depend on their individual case factors, and it's what the multidisciplinary teams will be evaluating," says CDCR spokeswoman Vicky Waters.... The state hopes to permanently empty California's death row by this fall, a CDCR official says.

Friend vows to fight the effort. A public hearing on the issue is scheduled in Sacramento for March 8. "I'm definitely going to make Michael's voice heard," she says, "because he's the one that is getting lost in all of this."

DC Council overrides DC mayor's veto of significant criminal justice reform bill

As reported in this new Washington Post piece, the "D.C. Council on Tuesday voted to override Mayor Muriel E. Bowser’s (D) veto of a major overhaul of the city’s criminal code, which city lawmakers had unanimously approved in November despite concerns from court and law enforcement leaders." Here is more from the press report:

Lawmakers voted 12-1 to override Bowser’s veto of the bill, with Trayon White Sr. (D-Ward 8) breaking from the rest of the council.  Council member Charles Allen (D-Ward 6), who chaired the public safety committee when the legislation passed, said lawmakers “stand at the finish line of a 16-year process that would make significant improvements and modernize an outdated criminal code from another era.”...

The bill would, among other things, eliminate most mandatory minimum sentences, allow for jury trials in almost all misdemeanor cases, and reduce the maximum penalties for offenses such as burglaries, carjackings and robberies.  Law enforcement leaders had expressed concern that it could burden an already stretched court system and would send the wrong message to residents at a time when the city is struggling with gun violence.

“This bill does not make us safer,” Bowser wrote in a letter to Council Chairman Phil Mendelson (D), announcing her veto. Lawmakers shot back Tuesday that the bill was a necessary reform of the city’s outdated criminal code, and they took direct aim at the mayor’s criticism, which they said could be used as fodder for members of Congress who can block city legislation.  Republicans in the House have already threatened to target the measure. But resolutions disapproving D.C. legislation must pass both chambers and be signed by the president.  Democrats have a narrow majority in the Senate....

Allen, who chaired the public safety committee when the bill was passed, and Brooke Pinto (D-Ward 2), the new public safety chair, said in a joint statement beforehand that the criminal code was “more equitable and just” but that they were open to consideration of further amendments before it was fully implemented.  Officials who support the code revisions have stressed the law would not take effect for three years to give police, courts and other groups time to prepare.  “There is simply too much good in this bill to abandon all of that work, and without any backup plan from the mayor,” Pinto said Tuesday.

Council member Brianne K. Nadeau (D- Ward 1) called the mayor’s veto a “distraction,” given that the council would override it.  “This is political theater to create a perpetual scapegoat whenever there are issues in the future,” Nadeau said. “Do not believe the hype.  The council is not tying the hands of our law enforcement officials or making crime worse.”...

Bowser wrote in her letter to Mendelson that while there was “consensus agreement” on 95 percent of the bill, she opposed particular provisions lowering maximum sentences and allowing for more jury trials.  She said the bill would weaken “already lenient sentencing for gun possession” by reducing the maximum penalties for carrying a pistol without a license and being a felon in possession of a gun.

Gregg Pemberton, chairman of the D.C. Police Union, said in a statement that the law, once enacted, would lead to “violent crime rates exploding more than they already have.” “Every resident should be outraged that the Council has weakened the criminal justice system in a way that makes every neighborhood less safe,” Pemberton said.  “Their actions today are shameful.”

Supporters of the bill have countered the reduction in maximum penalties are in line with what judges are actually imposing.  “This isn’t some huge, mass decarceration measure,” said Patrice Sulton, founder and executive director of the D.C. Justice Lab. “It’s making the code clear, consistent, and constitutionally sound.”

US Supreme Court relists latest cases seeking review of acquitted conduct sentencing

Regular readers surely recall some prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As detailed before (and linked below), I had the pleasure last year of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.  (I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.)

After various delays and more delays, the McClinton case (as well as a number of others raising acquitted conduct issues) was finally considered at last Friday's SCOTUS conference.  I was a bit worried when last week's SCOTUS cert grant list did not include the case, but I was hopeful that we would learn today that the McClinton case was relisted and the docket sheet now reflects that reality.  I am pretty sure that all the other acquitted conduct cases considered in the last SCOTUS conference were also relisted.

More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court's decision not to grant review.  But relisting is also sometimes a precursor to a later granting of cert.  So, as I have said before, I am hopeful, thought still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing. 

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• A reminder of why "acquitted conduct" sentencing enhancements should be seen as a constitutional abomination 
• Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• "Acquitted. Then Sentenced."
• NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct 
• Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing? 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements 

UPDATE:  John Elwood at SCOTUSblog has this new post noting the acquitted conduct relists, "Acquitted-conduct sentencing and 'offended observer' standing."

Another look at some of the post-Bruen Second Amendment uncertainty

Folks who follow Second Amendment jurisprudence know that the Supreme Court's landmark ruling in Bruen last summer has created  lots of notable new questions and constitutional uncertainty concerning an array of gun control measures.  And folks who follow this blog know that I find especially interesting the legal debates over the constitutionality of various laws criminalizing gun posession by persons with certain prior convictions or other criminal-justice involvement.  So I wanted to flag some notable recent press coverage of these issues:

From ABC News, "Supreme Court decision creates confusion over which firearm restrictions are constitutional"

From the Brunswick News, "Should nonviolent crimes cost a man his 2nd Amendment rights?"

From Reuters, "Federal public defenders seek end to several gun restrictions"

I think it might only be a matter or when, not if, the Supreme Court has to take up the issue of th constitutionality of at least some felon-in-possession bans.  But when might be many years from now. 

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 

"A World Without Prosecutors"

The title of this post is the title of this new essay now on SSRN authored by Jeffrey Bellin.  Here is its abstract:

This Essay is part of a Symposium of responses to Bennett Capers’ provocative article, Against Prosecutors.  Capers proposes to (largely) abolish public prosecutors, a reform he suggests would slash the number of people incarcerated, particularly for drug crimes, and return the power of prosecution to the people.

Using data from my new book, Mass Incarceration Nation, this Essay suggests that Capers' proposal is unlikely to have the promised benefits because it targets only one of the many drivers of American criminal law.  Prosecutors matter. But they are one piece of a large and complex puzzle.  And most importantly, prosecutors are primarily reactive, responding to the laws enacted by legislators and the arrests made by police.  Capers’ proposal makes perfect sense if prosecutors are truly the one thing responsible for mass incarceration and the primary driver of drug enforcement.  If, however, politicians and police are also (or even primarily) pushing the “tough on crime” agenda, jettisoning public prosecutors becomes a murky policy prescription and may prove counterproductive.