A blog of the Philadelphia Bar Association’s Criminal Justice Section

The House and Senate are not in session this week.

Click for Pennsylvania Bulletin for February 27, 2021

HEADLINES FROM CRISCI ASSOCIATES

Judicial Remap Amendment is on Hold — For Now. The Risk Remains.

Legalizing Marijuana Gets First GOP Sponsor in Pennsylvania

THE BEST OF THE MARSHALL PROJECT

$3 billion for a decade’s worth of police settlements. But do they work? We know that taxpayers pay hundreds of millions of dollars each year in the form of settlements for police brutality and other misconduct. The nation’s three biggest cities account for over 80 percent of those costs. But the data on payouts to victims and their families is so spotty and inconsistent—some cities don’t even agree on what constitutes “misconduct”—we can’t tell whether the payments change the bad behavior that prompts excessive force or wrongful death cases in the first place. In collaboration with FiveThirtyEight, Amelia Thomson-Devaux and The Marshall Project’s Damini Sharma have our story. We also published police settlement data from more than 30 cities.

Things are always worse in prisons. 33 Texas penitentiaries lost power last week in the wake of a deadly winter storm; 20 facilities suffered from water shortages. In collaboration with The Daily Beast, Keri Blakinger reported on how the incarcerated were forced to defecate into paper bags and live without adequate food or clothing. Meanwhile, as the weather worsened, and conditions in their own homes became desperate, fewer guards showed up for work, forcing those who were there to cover more duties.

Back to prison because judges and prosecutors couldn’t agree about the definition of a “violent felony.” Michael Lemons was released early from prison in 2017 when a federal court ruled that the mandatory minimum sentence against him, based on Tennessee’s burglary law, was flawed. Lemons returned home and began to rebuild his life. He got a job and bought a car. He enjoyed reconnecting with his family. And then he was ordered back to prison with two dozen other Tennessee defendants after the U.S. Supreme Court overturned that earlier ruling. Now, as Beth Schwartzapfel reports in collaboration with Nashville Public Radio, some of these people are seeking a “compassionate release,” arguing that a return to prison is particularly cruel.

New COVID-19 cases behind bars continue to drop as some prisoners, staff, are vaccinated. Our tracker, published in collaboration with the Associated Press, shows new cases among prisoners rose about 1 percent last week. More than 383,000 prisoners have tested positive for the coronavirus since last March. At least 2,445 have died. At least 189 prison employees also have died.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

Here at The Marshall Project, we’ve reported a number of stories that included photos and videos taken from inside prisons, often in Texas. Every image is shocking—fires burning the tiers, inedible rations of food,fights in the common areas that guards don’t seem to break up. But this week, in the aftermath of a storm and near-total failure of the Texas power grid,Texas Observer reporter Arya Sundaram got video of something that’s remarkable not just because it’s happening in prison, but because it’s happening in Texas: Snow falling into a cell. The claim that the prison system’s maintenance needs are so severe that the buildings don’t even fully protect incarcerated people from the elements is not new, but this is the first time a reporter has been shown it with visual evidence. It’s just one part of her coverage of the storm, power outages and water shortages that swept the state. —Keri Blakinger

Justices hear argument on whether “hot pursuit” for misdemeanors allows police to enter home without a warrant

By Amy Howe on February 24, 2021

The Supreme Court heard oral argument on Wednesday in the case of Arthur Lange, a northern California man convicted of driving under the influence of alcohol. The evidence used to convict Lange was obtained by a California highway patrol officer, who had followed Lange in his car and then on foot into his garage. The question before the justices was whether the officer violated the Fourth Amendment when he went into Lange’s garage without a warrant, or whether the entrance was instead justified because the officer was in “hot pursuit” of Lange. At one point during the nearly two hours of argument by four different lawyers, Justice Stephen Breyer observed that the dispute before them was a “tough case.” Further complicating the justices’ decision was the sentiment that, at least for some of them, their actual ruling might not make much of a difference in practice.
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Petitions of the week

Affirmative action at Harvard, border searches and pedestrian safety

By Andrew Hamm on Febfuary 26, 2021

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether Harvard’s use of race in college admissions violates a federal civil rights law, the extent to which officers may search a cell phone without a warrant at the border and the type of evidence Oklahoma City needs to support its restrictions on pedestrian activities in street medians.

The 14th Amendment’s equal protection clause prohibits state-sponsored racial classifications unless a classification is narrowly tailored to serve a compelling government interest, a test known as “strict scrutiny.” In 2003’s Grutter v. Bollinger, the Supreme Court ruled that the University of Michigan Law School’s use of racial preferences in admissions satisfied strict scrutiny. The ruling affirmed that public institutions of higher education could consider race as one factor in a holistic process in order to achieve a diverse student body. In the opinion in Grutter – as in an earlier decision, University of California Regents v. Bakke, which prohibited quotas – the Supreme Court discussed Harvard’s admissions policy and suggested that it exemplified a narrowly tailored, permissible use of race.

Harvard is now the defendant in the latest affirmative-action case to reach the court. In a petition filed on Thursday, a nonprofit group that opposes affirmative action, Students for Fair Admissions, asks the justices to consider overruling Grutter and evaluating whether Harvard’s admissions process violates Title VI of the Civil Rights Act. (Private universities like Harvard are not subject to the 14th Amendment, but Title VI applies the same test to private universities that receive federal funds, as Harvard does.) SFFA argues that Harvard’s race-conscious admissions policy is not narrowly tailored but overtly favors some groups and penalizes Asian Americans. SFFA also faults Harvard for not considering race-neutral alternatives that, it argues, would yield a diverse student body without using race. After a three-week trial, the district court upheld Harvard’s process. The U.S. Court of Appeals for the 1st Circuit affirmed. The case is Students for Fair Admissions Inc. v. President & Fellows of Harvard College.

In United States v. Cano, a customs officer found cocaine in Miguel Cano’s car during an inspection after Cano crossed the border from Mexico into the United States. Department of Homeland Security agents then searched through the call log and other digital data on Cano’s cell phone. The search of the car did not violate the Constitution under the border-search exception to the Fourth Amendment’s warrant requirement. However, the U.S. Court of Appeals for the 9th Circuit ruled that the DHS agents exceeded the border-search exception when they wrote down phone numbers from the call log and took photographs of two text messages. To the 9th Circuit, the exception does not justify gathering evidence of past or future border-related criminal activity. A petition from the acting solicitor general asks the justices to review this decision.

Oklahoma City has an ordinance that limits pedestrian activities on street medians. Calvin McCraw and other residents challenged the ordinance as restricting their First and 14th Amendment rights. After a trial that included expert testimony for the city on the dangers of medians to pedestrians, the district court upheld the ordinance as narrowly tailored to serve the government interest in pedestrian safety. The U.S. Court of Appeals for the 10th Circuit overturned that decision, suggesting that, among other points, the city’s safety concern was hypothetical because the city did not have evidence of a pedestrian being hit in a median. Arguing that the lower courts are split on the type of evidence that can support a pedestrian ordinance, the city asks for the justices’ review in Oklahoma City, Oklahoma v. McCraw.

These and other petitions of the week are below:

United States v. Cano
20-1043
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in concluding that the scope of a search of an electronic device under the border-search exception to the Fourth Amendment’s warrant requirement is limited solely to digital contraband on the device itself, and cannot include evidence of physical smuggling or other border-related crimes.

Oklahoma City, Oklahoma v. McCraw
20-1049
Issues: (1) Whether the risk of death or serious bodily injury to a pedestrian sitting, standing or staying on a median in a street with a speed limit of 40 miles per hour or more constitutes a significant government interest in protecting the health and safety of pedestrians even though a pedestrian death has yet to occur; and (2) whether McCullen v. Coakley dictates that the government must, in all cases, present evidence that it actually tried and failed to utilize less burdensome alternatives, even when, considering the nature of the articulated safety interest and the scope of the ordinance, less burdensome alternatives do not exist.

Wolfe v. Virginia
20-1056
Issue: Whether a state court can avoid the federal constitutional issues raised by a vindictive prosecution claim, which challenges the state’s constitutional authority to convict and impose sentence, by applying a forfeiture rule that itself does not comply with constitutional due process.

Oracle America Inc. v. United States
20-1057
Issues: (1) Whether a bid protest that establishes a violation of federal law may be denied for “harmless error” based on a rationale not present in the administrative record; and (2) whether, in resolving a bid protest that establishes a violation of the criminal conflict-of-interest statute, the U.S. Court of Appeals for the Federal Circuit can enforce the contract based on deference to an agency’s assessment that the criminal violation did not taint the procurement.

Thompson v. DeWine
20-1072
Issue: Whether and how the First Amendment applies to regulations that impede a person’s ability to place an initiative on the ballot.

Students for Fair Admissions Inc. v. President & Fellows of Harvard College
[Pending]
Issues: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.

Posted in Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Affirmative action at Harvard, border searches and pedestrian safety, SCOTUSblog (Feb. 26, 2021, 3:50 PM), https://www.scotusblog.com/2021/02/affirmative-action-at-harvard-border-searches-and-pedestrian-safety/

March 1, 1932. Lindbergh baby case begins. Click for report from history.com

Senate Chamber, Pennsylvania State Capitol

The information below is from Crisci Associates PA Capitol Digest.

Download last week’s budget testimony by John E. Wetzel, Secretary of the Department of Criminal Justice.

The House is not in session this week. The House Appropriations Committee will hold budget hearings for the Liquor Control Board/Bureau of Liquor Control Enforcement, 3 p.m. Tuesday; and the Department of Drug and Alcohol Programs, 3 p.m. Wednesday.

The Senate is in session Monday, Tuesday and Wednesday.

Click for Pennsylvania Bulletin of February 20, 2021.

Parties endorse candidates for Supreme, Superior and Commonwealth Courts. Click for Democrats. Click for Republicans.

HEADLINE NEWS from Crisci Associates

Pittsburgh Advocates Gather 65k Signatures for No-Knock Warrant Ban and Solitary Confinement Limit Ballot Initiatives

THE BEST OF THE MARSHALL PROJECT

Another week, another slight rise in COVID positives in prisons. Cases among prisoners rose another one percent last week, to nearly 381,400, and the death toll now is at least 2,417. There have been nearly 103,000 coronavirus cases among prison staff, likely an undercount, and at least 184 employees have died after testing positive. In collaboration with the Associated Press here is our updated tracker.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

This Oxford American essay on the Venus flytrap slipped by me in November, but it’s a timeless story of prosecutorial disparity and well worth a read. In 2014, the North Carolina General Assembly made poaching the carnivorous plant a felony. Who gets prosecuted for illegal “taking of flytraps”? African Americans with long roots in the community. Who destroys the most flytraps with impunity? Developers filling the area with gated communities, golf courses, swimming pools and tennis courts. Joe Portell introduces us to an enforcement officer named Fred Gorchess. “In a different time, Gorchess would have been called a game warden instead of a wildlife officer, tracking down the peasants who dared to hunt deer or rabbit on gentry-owned land instead of poor men tired of supporting their families on $7.25 an hour.”Joseph Neff

What’s the right punishment for someone who was involved in a fatal crime but didn’t actually kill anyone? That’s the thorny question that law professor Lara Bazelon wrestles with in a piece for the Atlantic. She focuses on the fallout of a 2018 California law aimed at people convicted under “felony murder,” a legal doctrine that holds that anyone involved in certain serious crimes that lead to death are as liable as the actual killer. Her piece is the best that I’ve seen at unpacking what that change in the law has meant for incarcerated people, as well as for families of victims. There’s nothing easy about it, and she’s deft at illustrating the complexity. — Abbie VanSickle

Alfred Woodfox spent nearly 44 years in solitary confinement in Louisiana’s infamous Angola prison for a murder he did not commit. His seemingly impossible term of near-total isolation, from age 25 to 69, is believed to be the longest ever served by a U.S. prisoner. On the fifth anniversary of his release—which happens to also be his 74th birthday—Woodfox shared musings on freedom with the Guardian’s Ed Pilkington. He reflects on how he made the years bearable by organizing math tests and spelling bees and playing chess and checkers, “shouting quiz questions and board moves through the bars of his cell to fellow solitary prisoners down the tier.” He discusses the fits of claustrophobia that still grip him, what he misses about the miserable 6×9 concrete cage where he spent most of his life, the racism that still pervades every corner of American life, and amidst it all—his seemingly inexhaustible optimism. — Jamiles Lartey

PETITIONS OF THE WEEK by ANDREW HAMM

The Civil Rights Act, the Clean Air Act and the Sixth Amendment

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether a Black man’s exposure to a racist epithet at work is “sufficiently severe” to constitute a hostile work environment in violation of the Civil Rights Act, whether a court can order a defendant to pay criminal restitution from facts not found by the jury, and whether the Clean Air Act preempts two counties’ attempt to challenge Volkswagen’s emissions software under local anti-tampering laws.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race with respect to “terms, conditions, or privileges of employment.” Under Supreme Court precedent, an employee challenging a hostile work environment must show that an employer’s conduct was “sufficiently severe or pervasive.” One “extremely serious” incident could qualify, but not a “mere offensive utterance.”

Collier v. Dallas County Hospital District involves the N-word etched into the side of an elevator that Robert Collier, a Black man who worked as an operating room aide, used to access the hospital cafeteria. Collier reported the graffiti, but the word remained for six months. Collier also complained about two swastikas painted on the wall in a storage room and being called “boy” by a white nurse. The U.S. Court of Appeals for the 5th Circuit ruled that the conduct did not establish a hostile work environment because the conduct was “not physically threatening,” was “not directed” at Collier other than the nurse’s comment, and did “not unreasonably interfere” with his work performance. However, the 5th Circuit recognized that other courts of appeals have allowed a jury to find a hostile work environment on the basis of one use of the N-word. Collier’s petition asks the justices to review and to reverse the 5th Circuit’s decision.

In Gilbertson v. United States, a jury found Ryan Gilbertson guilty of manipulating the stock price of a company he co-founded. The government argued that Gilbertson’s motive involved a compensation package that gave him a bonus based on the stock’s prices. The district court ordered Gilbertson to pay the $15 million he received in bonuses as restitution. In its findings of facts, however, the jury had not specifically considered the bonus beyond a reasonable doubt because the government never challenged the bonus itself as unlawful. In his petition, Gilbertson asks the justices whether a court’s imposition of criminal restitution for an amount not found by the jury violates the Sixth Amendment jury right.

In 2015, the Environmental Protection Agency released a “Notice of Violation” against Volkswagen for its software “defeat devices,” which allowed its new diesel cars to emit higher levels of nitrogen oxides than allowed under EPA regulations. In the aftermath, two counties challenged the defeat devices under local anti-tampering laws. The Clean Air Act, which gives the EPA authority to set and enforce emissions standards for vehicles, also prohibits states and local governments from seeking to control emissions “from new motor vehicles.” Because of this language, the U.S. Court of Appeals for the 9th Circuit ruled that the Clean Air Act preempted the counties’ challenge as to pre-sale software updates to the defeat devices, but not to as any post-sale updates. Among other arguments in its petition, Volkswagen maintains that the EPA standards govern the post-sale updates, which relate back to the vehicles’ original designs, and that local anti-tampering laws are about mechanics or consumers interfering with emissions designs. The case is Volkswagen Group of America Inc. v. Environmental Protection Commission of Hillsborough County, Florida.

These and other petitions of the week are below:

Gilbertson v. United States
20-860
Issue: Whether the Sixth Amendment prohibits a court from imposing criminal restitution on a defendant based on facts not found by the jury beyond a reasonable doubt.

Kong v. City of Burnsville, Minnesota
20-875
Issue: Whether, on interlocutory review of a denial of qualified immunity, an appellate court may reject a district court’s determination of a genuine issue of material fact even if the record does not blatantly contradict that determination.

Volkswagen Group of America Inc. v. Environmental Protection Commission of Hillsborough County, Florida
20-994
Issue: Whether the Clean Air Act preempts state and local governments from regulating manufacturers’ post-sale, nationwide updates to vehicle emission systems.

Collier v. Dallas County Hospital District
20-1004
Issues: (1) Whether an employee’s exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact; and (2) whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable “mere utterances.”

City of Austin, Texas v. Reagan National Advertising of Texas Inc.
20-1029
Issue: Whether the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert.

Golan v. Saada
20-1034
Issue: Whether, upon finding that return to the country of habitual residence places a child at grave risk, a district court is required to consider ameliorative measures that would facilitate the return of the child notwithstanding the grave risk finding.

Posted in Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, The Civil Rights Act, the Clean Air Act and the Sixth Amendment, SCOTUSblog (Feb. 19, 2021, 7:36 PM), https://www.scotusblog.com/2021/02/the-civil-rights-act-the-clean-air-act-and-the-sixth-amendment/

Viewing and funeral of Malcolm X, February 23 to 27, 1965. Click for details.

Legislative Alert:

Senator Corman says proposal to move Pa. appeals courts to regional elections won’t be on May ballot

“We want to take some time, and maybe hold some hearings and get as much input on it as possible.”

This report refers to House Bill 38, which was reported out by the House Judiciary Committee on January 13 and tabled.

By ANNE DAHANY/WPSU, February 17, 2021. Click for full report from WITF.

(State College) — A proposed amendment to Pennsylvania’s Constitution that would change how Supreme Court and appeals court judges are elected could have been on the state ballot as early as May, but Senate President Pro Tem Jake Corman said he expects there to be greater review of the issue first.

The Pennsylvania General Assembly passed the proposal in the 2019-20 session. A Constitutional Amendment has to pass in two consecutive sessions before it goes to voters as a referendum.

Republicans have pushed for the change, but Corman said he doesnot think it will be on the ballot this May.

“We want to take some time, and maybe hold some hearings and get as much input on it as possible,” Corman said.

Judges on Pennsylvania’s Supreme Court and other appeals courts are currently elected statewide. The proposal would divide the state into regions that elect those judges.

Corman said it’s worth considering other options too, including merit-based selection and gubernatorial appointments with Senate approval that would distance judges from politics.

“The predicament that we put our judicial candidates in by having to run statewide is a delicate one, and one that at least deserves review,” he said.

Critics say judges should be the best in the state, not picked to represent a certain region. And, they say, the proposal is at least partly because Republicans were unhappy with a Supreme Court decision on legislative redistricting.

‘I love you.’ It’s a simple statement loaded with meaning, yet often misunderstood and misinterpreted, even by the person declaring those words. (Hulton Archive/Getty Images) via http://newsletters.cbc.ca/q/11mfqTjyJpMmfG2TSEzgOIl/wv

Happy Valentine’s Day

Governor Wolf’s Legislative Plan is posted on the Governor’s website at https://www.governor.pa.gov/2021-plan/. It states, “Building on efforts to reform our criminal justice system, the governor is proposing bail reform, indigent defense funding, a comprehensive expansion of our Clean Slate Law, and other policies that will build on bipartisan efforts to reform our criminal justice system.”

PennLive reports that the budget plan proposes that people who were wrongly convicted of crimes would be paid $50,000 for each year they were incarcerated. The funds would go to exonerees who have had convictions overturned on the grounds that they were innocent of the crime accused. The new program could apply, for example, to inmates who have seen convictions overturned and subsequently had charges dropped, or those who were acquitted in a new trial.

Representative Summer Lee (D-Allegheny) has proposed legislation to eliminate cash bail. Click for the link to her Memorandum of January 19, 2021.

The information below is from Crisci Associates PA Capitol Digest.

The House and Senate are not in session this week. The House Appropriations Committee will have budget hearings on the Department of Corrections at 10 a.m. on February 17.

Click for Pennsylvania Bulletin of February 13, 2021.

Headlines from Crisci Associates

A Push to Grant Driver’s Licenses to Undocumented People is Underway in PA

With One Supreme Court Seat Up for Grabs, PA’s 2021 Judicial Elections Start to Take Shape

Wolf Takes State Out of Appeal Over Victim Rights Amendment

Commonwealth Court Hears Argument on Challenge to Second-Degree Murder Penalty

PA’s Criminal Justice System is Still Rigged Against the Poor. Wolf’s Call for Indigent Defense Funding is a Start

THE BEST OF THE MARSHALL PROJECT

“The feds aren’t policing their own.” U.S. Marshals have often acted like local police over the past five years, only with more violence toward civilians and less accountability to the public. Two-thirds of arrests by marshals and the task forces they organized with local officers during that time came from enforcing local warrants. Task force members do not wear body cameras and operate under permissive use-of-force rules. In collaboration with The Arizona Republic and the USA TODAY Network, Simone Weichselbaum and Sachi McClendon and The Republic’s Uriel J. Garcia found that from January 2015 to September 2020, “at least 177 people were shot by a marshal, task force member or local cop helping in a marshals arrest; 124 people, mostly suspects and a handful of bystanders, died.”

What 120 executions tell us about justice in America. Our acclaimed series, “The Next to Die,” which tracked hundreds of scheduled executions over the past five years, revealed how the U.S. death penalty system is still marked by delay, uncertainty and trauma for the families of victims and the condemned alike. Executions since 2015 have been slowed or canceled by legal challenges, bureaucratic intransigence, evolving U.S. Supreme Court guidance and, over the past 11 months, the coronavirus. Tom Meagher, Katie Park and Andrew R. Calderón have our story as “Next to Die” ends its run. More from TMP: Follow “Death Sentences,” our new series on the troubled past and uncertain future of capital punishment.

“They put the dogs on me.” Officers in Baton Rouge, Louisiana, sicced their police dogs on unarmed people with savage frequency between 2017 and 2019. K-9s bit at least 146 people, roughly one-third of whom were 17 or younger. Nearly all of the people bitten were Black and most were suspected by police of commiting non-violent crimes. Among them was Charles Carey, a teenager who was attacked by a trained dog after police chased him when they mistakenly thought he was riding a stolen dirt bike. In collaboration with The Advocate’s Bryn Stole and Grace Toohey here is the latest in our continuing series on police dogs in America. TMP Context: When police violence is a dog bite

Rooked out of prison board games, they played chess in their own minds. When coronavirus concerns came to his Texas prison, Harlin Pierce was disappointed to learn that meant no more board games among prisoners. At first, Pierce and a friend tried to continue their regular chess matches by yelling out their moves from their respective cells. Then they decided they would just play each match in their own minds, whenever they would see each other. “Every one of us has the ability to cultivate the perspective we want for ourselves and apply it to our experience,” writes Pierce, who is serving 33 years for murder. In collaboration with The Daily Beast here is the latest in our “Life Inside” series.

The Marshall Project’s first story published in both English and Spanish on our site. Andrew R. Calderón reported two weeks ago on some of the 26,000 young immigrants in the U.S. who often have to wait for years in fear they will be deported before their green card applications come through. Now, read the story en español: “Les Dijeron Que Podían Quedarse en EE.UU. Pero Igual Pueden Ser Deportados.” More from TMP: Here again, in collaboration with DocumentedNY, is the original English version.

COVID-19 death toll in prison reaches 2,400, but the number of new cases eases to the lowest level since October. Our tracker, produced in collaboration with the Associated Press, shows over 377,000 prisoners and more than 101,000 prison employees have now tested positive for the coronavirus since March. At least 181 prison staff have died after testing positive.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

Last week the Gimlet podcast “Resistancefeatured the story of Keith Davis, Jr., who was shot in the face by Baltimore Police in 2015, before he was convicted of murder and sentenced to 50 years in prison. He and his family contend the police framed him in order to deflect attention from their unjustified shooting of him. The episode tells the story of Davis’s ordeal, which is galling in its own right, but in keeping with the show’s focus on the movement for black lives it uses Davis’s relationship with his wife to examine Black love in the face of impossible odds. It explores how the criminal justice system is just the latest in a long line of structural barriers to Black relationships and Black families—from slavery to Jim Crow, from vagrancy statutes to the “man in the house rule,” which masqueraded as welfare reform in the 1950s and 60s. ”These things were meant to keep us from bonding and forming genuine relationships, never pouring into each other or building bridges together,” said producer Wallace Mack. Yet somehow, Keith and his wife Kelly and all the families before theirs have made it work. “That’s what Black love is and always has been,” Mack said. “It’s having all the conditions necessary for loving denied to you, and responding by making your own thing out of the void.” It’s a moving hour you won’t soon forget. —Beth Schwartzapfel

Propublica and The Asbury Park Press dove deeply into the contracts between police unions and the New Jersey towns and cities that employ them. They surfaced with a trove of gimmicks bestowing millions of dollars in benefits that few other workers receive. One town guaranteed a retiring lieutenant $121,000 for unused sick time. Another bestows “terminal leave”–six months pay, no work required, as a parting kiss on the cheek. Yet another pays cops $109 an hour for side gigs like monitoring traffic at construction sites. And to keep the ball rolling, “past practice” clauses mandate the cities keep paying benefits never written in a contract. One city with 45 officers and 24,000 residents paid a 48-year-old chief $342,000 upon retirement in 2014. Now the city manager, he said it’s impossible to kill “past practice” clauses. “It’s almost like you’d need a stick of dynamite to get it out of the contract,” he said. “Nobody’s going to give in.” Nice work if you can get it. —Joseph Neff

Supreme Court won’t allow Alabama execution without a pastor.

By AMY HOWE, SCOTUSblog, February 12, 2021

The Supreme Court on Thursday night ruled that the execution of an Alabama man must remain on hold unless the state allows the man, Willie Smith III, to have his pastor by his side in the execution chamber. The justices rejected a request by the state to undo a ruling by the U.S. Court of Appeals for the 11th Circuit, which had blocked the state from executing Smith.

The justices also lifted a stay of execution entered by the 11th Circuit in a separate proceeding, clearing the way for the state to execute Smith if it agrees to allow him to be accompanied by his pastor in the execution chamber. However, the Associated Press reported shortly after the Supreme Court’s ruling that Alabama had called off Smith’s execution, which had been scheduled to take place under an execution warrant that designated Thursday as the execution date. The Supreme Court issued its ruling at around midnight eastern time – or about 11 p.m. central time, just one hour before the execution warrant expired.

Smith, 51, was sentenced to death for the 1991 robbery and shooting death of 22-year-old Sharma Johnson in Birmingham, Alabama.

Four justices — Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett — all signed an opinion, written by Kagan, that said the state failed to adequately justify its policy of barring spiritual advisers from the execution chamber. Three justices — Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh — indicated that they would have allowed the execution to go forward under Alabama’s policy. The remaining two justices – Justices Samuel Alito and Neil Gorsuch – did not publicly disclose how they voted, but at least one of them must have voted with the three liberal justices and Barrett to prevent the execution from occurring without a spiritual adviser.

Until 2019, Alabama’s Department of Corrections allowed a Christian chaplain employed by the state to be in the execution chamber during lethal injections, but it did not allow outside spiritual advisers. It changed that policy and barred all spiritual advisers from the execution chamber in response to a March 2019 ruling from the Supreme Court in an emergency death-penalty appeal known as Murphy v. Collier. In that case, a Buddhist inmate challenged Texas’ policy of allowing Christian and Muslim spiritual advisers in the execution chamber while excluding clergy representing other religions, arguing that the policy discriminated against him. The court put the Buddhist inmate’s execution on hold, and Kavanaugh wrote a separate opinion suggesting that one solution would be for the state to bar all spiritual advisers from the execution chamber. Both Texas and Alabama adopted that policy.

Smith went to federal court to challenge the state’s new policy, arguing that the total ban on spiritual advisers in the chamber violates both the Constitution’s guarantee of free exercise of religion and a federal law that protects inmates’ religious rights. On Wednesday, the 11th Circuit sided with Smith and blocked the state from executing him unless it allowed his personal spiritual adviser, a Christian pastor, to join him in the chamber.

The state asked the Supreme Court to intervene on Thursday morning. It stressed that although inmates have their spiritual advisers with them until they go into the chamber, and can see them in the viewing room, the ability to exclude everyone except corrections officials from the execution chamber is essential to “preserving the security and solemnity of the execution.” And in any event, the state added, Smith’s challenge came too late – nearly two years after the state changed its policy.

Smith urged the justices to leave the 11th Circuit’s ruling in place. He dismissed the state’s concerns about security as overblown, pointing to a series of recent executions conducted by the federal Bureau of Prisons in which inmates were permitted to have their personal spiritual advisers with them in the execution chamber without incident. Smith also pushed back against the state’s suggestion that his challenge was untimely, noting that it was filed “nearly 60 days” before his scheduled execution, much earlier than the case of the Buddhist inmate whose execution the Supreme Court stayed in 2019.

The state needed five votes to lift the 11th Circuit’s ruling and allow the execution to proceed without Smith’s pastor in the execution chamber.

Thomas indicated, without saying anything more, that he would have granted the state’s request. Roberts and Kavanaugh also would have allowed the execution to go ahead without Smith’s pastor in the chamber. In a short opinion dissenting from the denial of the state’s request, Kavanaugh (joined by Roberts) explained that, in his view, the state’s policy of excluding all spiritual advisers from the chamber “serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room.” But in light of the court’s ruling in Smith’s case and in a similar case out of Texas, Kavanaugh reasoned, states should likely “figure out a way to allow spiritual into the execution room, as other States and the Federal Government have done.”

Kagan wrote an opinion concurring in the decision to keep the 11th Circuit’s ruling on the spiritual adviser in place. Breyer, Sotomayor, and the court’s newest justice, Amy Coney Barrett, joined that opinion. Kagan explained that any restrictions on Smith’s religious rights must satisfy a stringent test – which, she concluded, Alabama’s policy cannot. Kagan acknowledged that prison security is a compelling interest, but she emphasized that the federal government and some states have allowed clergy members without a connection to the government to attend executions without resulting in any security concerns. The state can “take any number of measures to ensure that a clergy member will act responsibly during an execution,” she suggested, including background checks or requiring a pledge of good behavior. But it cannot “simply presume that every clergy member will be untrustworthy — or otherwise said, that only the harshest restriction can work.”

Alito and Gorsuch did not indicate how they had voted, but the public votes of the other seven justices (with four concurring in the decision to keep the 11th Circuit’s ruling in place and three dissenting) indicate that either Alito or Gorsuch (or both) voted to keep the lower court’s ruling in place. If both had voted to lift the lower court’s ruling, there would have been five votes to do so.

In a separate order, the justices lifted a temporary stay of execution that the 11th Circuit had entered on Wednesday to give it more time to consider Smith’s claim that, because he is intellectually disabled, the state should have provided him with help in reviewing a document that would have allowed him to choose an alternate method of execution.

The state had urged the justices to revoke the stay, telling them that – like Smith’s spiritual-adviser claim – it had been filed too late. Moreover, the state added, Smith had not shown that the state was aware of his intellectual disability or that he needed help to complete the form, which would have allowed him to opt to be executed by lethal nitrogen rather than through a controversial three-drug lethal injection protocol.

Smith’s attorneys, who told the justices that Smith’s IQ is between 64 and 75, asserted that corrections officials have long known that he is intellectually impaired and therefore should have provided him with assistance to understand and complete “a highly complex and complicated form” to choose execution by lethal nitrogen. When officials failed to do so, Smith’s attorneys argued, he was denied an opportunity to opt out of a protocol “that has continuously been challenged as causing pain and suffering.”

This article was originally published at Howe on the Court.

Posted in Featured, Capital cases, Emergency appeals and applications

Recommended Citation: Amy Howe, Court won’t allow Alabama execution without a pastor, SCOTUSblog (Feb. 12, 2021, 2:35 AM), https://www.scotusblog.com/2021/02/court-wont-allow-alabama-execution-without-a-pastor/

Petitions of the week: 3-D printed firearms and liability for police shootings

By JAMES ROMOSER, SCOTUSblog, February 12, 2021.

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, when a state attorney general can be pulled into court in another state and when a police officer is immune from civil liability for fatally shooting a passenger in a fleeing car.

Grewal v. Defense Distributed is a dispute between the attorney general of New Jersey and a Texas company that develops digital files used to manufacture 3D-printed guns. In 2018, the attorney general, Gurbir Grewal, sent a cease-and-desist letter to Defense Distributed, warning that distributing such files to New Jersey residents over the internet would violate New Jersey law. In response, the company sued Grewal in federal court in Texas. It sought an injunction barring Grewal from taking any enforcement action against the company, which it argued would violate the First and Second Amendments.

The Texas district court dismissed the lawsuit after finding that it had no personal jurisdiction over Grewal. The U.S. Court of Appeals for the 5th Circuit reversed and ruled that the case could proceed. Grewal argues in his cert petition that the 5th Circuit’s decision is at odds with the Supreme Court’s case law on personal jurisdiction. He also claims that the 5th Circuit created a circuit split on the question whether state officials subject themselves to jurisdiction in other states merely by sending cease-and-desist letters across state lines.

City of Hayward v. Stoddard-Nunez arises from a police officer’s fatal shooting of a passenger in a fleeing car. In 2013, an officer in Hayward, California, attempted to stop a car on suspicion of drunk driving. After initially stopping in a parking lot, the driver refused to exit the car. Instead, he drove past the officer’s patrol car and fled the scene. The officer, who testified that the car swerved toward him as it fled, fired nine shots into the car, killing a passenger. The passenger’s next-of-kin sued the officer and the city under 42 U.S.C. § 1983, arguing that the officer violated the passenger’s Fourth Amendment right to be free from unreasonable seizures.

The district court dismissed the lawsuit, but the U.S. Court of Appeals for the 9th Circuit reinstated it, concluding that a reasonable jury could find that the officer fired the fatal shot after the car had already passed him and posed little threat to the officer or the public. The officer and the city ask the Supreme Court to take up the case to resolve two issues: (1) the proper of level of generality that courts should use to assess whether an officer violated “clearly established law” for the purpose of deciding whether that officer is entitled to qualified immunity, and (2) whether a shooting of a passenger under these circumstances counts as a seizure under the Fourth Amendment.

These and other petitions of the week are below:

Brown v. Polk County, Wisconsin
20-982
Issue: Whether the Fourth Amendment permits jail officials to conduct a physical, penetrative search of the vagina and/or anus of a pretrial detainee without a warrant, probable cause or exigent circumstances, including in cases of persons detained for minor nonviolent non-drug offenses like shoplifting.

Grewal v. Defense Distributed
20-984
Issue: Whether a nonresident state official subjects itself to personal jurisdiction in another forum state when it sends a single cease-and-desist letter to a single resident in that state.

Smith v. Tyson
20-988
Issues: (1) Whether the review required under Section 2254 of the Antiterrorism and Effective Death Penalty Act of 1996 and Cullen v. Pinholster is violated by reliance upon a “some ambiguity” standard utilized by the U.S. Court of Appeals for the 3rd Circuit to find a due process violation without affording the required benefit of the doubt to both defense counsel and the trial court; (2) whether the 3rd Circuit’s decision granting habeas relief on the basis of alleged erroneous jury instructions in a state accomplice murder trial erred by failing to apply the Supreme Court’s own precedent in Waddington v. Sarasaud; and (3) whether, by ignoring whole sections of the trial court’s charge to the jury with respect to accomplice liability and failing to view it in the context of the trial record, the 3rd Circuit erred in concluding that there exists a substantial and not just a conceivable likelihood of a different result.

England v. Hart
20-991
Issue: Whether the “objective inquiry” required by Davis v. United States for an assertion of the right to counsel may be based on subjective factors.

Dominguez v. United States
20-1000
Issue: Whether attempted robbery under the Hobbs Act qualifies as a “crime of violence,” meaning that it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

City of Hayward, California v. Stoddard-Nunez
20-1006
Issues: (1) Whether an accelerating fleeing driver’s sudden turn deprives a threatened shooting officer of qualified immunity; and (2) whether an unintended victim-passenger of a fleeing vehicle is “seized” for purposes of the Fourth Amendment.

Shinn v. Ramirez
20-1009
Issue: Whether application of the equitable rule the Supreme Court announced in Martinez v. Ryan renders the Antiterrorism and Effective Death Penalty Act, which precludes a federal court from considering evidence outside the state-court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, inapplicable to a federal court’s merits review of a claim for habeas relief.

Rranxburgaj v. Mayorkas
20-1010
Issue: Whether legal determinations antecedent to agencies’ discretionary decisions to commence proceedings, adjudicate cases or execute removal orders “arise from” these decisions for purposes of 8 U.S.C. § 1252(g), which provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the U.S. attorney general to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”

Louisiana Real Estate Appraisers Board v. Federal Trade Commission
20-1018
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among counsel to the petitioner in this case.]
Issue: Whether and under what conditions orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.

Posted in Featured, Cases in the Pipeline

Recommended Citation: James Romoser, 3D-printed firearms and liability for police shootings, SCOTUSblog (Feb. 12, 2021, 5:32 PM), https://www.scotusblog.com/2021/02/3d-printed-firearms-and-liability-for-police-shootings/

Presidents’ Day, February 15, 2021

The information below is from Crisci Associates PA Capitol Digest.

The House and Senate are not in session this week. The Pennsylvania Board of Probation and Parole has a board meeting, Wednesday at 9 a.m.

Last week, the House passed SB 2 (116-86) — a joint resolution proposing amendments to the Constitution of the Commonwealth of Pennsylvania to provide for equality of rights on the basis of race and ethnicity, the termination or extension of a disaster emergency declaration and require action by the General Assembly to extend an emergency declaration beyond twenty-one days.

This joint resolution has been approved by the General Assembly in two consecutive legislative sessions; and the constitutional amendments will now be placed on the May 18 primary ballot for voters to approve or reject.

The House passed HB 187 (202-0) to provide for limited liability for donating food past the labeled date code recommended by the manufacturer. This bill goes to the Senate for consideration.

Budget Report

Governor Wolf Releases 2021-22 Budget Plan. On Wednesday, Governor Wolf virtually delivered his seventh budget address. Governor Wolf’s executive budget plan spends $37.8 billion, an increase of $3.8 billion, or 11.1 percent, over the current year, after considering the request of $903 million to fully fund the current year.

Highlights of Governor Wolf’s 2021-22 Budget Plan for Criminal Justice

  • $168 million for a service fee for PA police services provided to every municipality.
  • A $9.6 million investment in two additional cadet classes in 2021-22.
  • $1.3 million increase to support the PICS gun checks system.
  • Revenue generated from the legalization of adult-use cannabis to be used to support historically disadvantaged small businesses through grant funding. Additionally, a portion of the revenue would support restorative justice programs.
  • Other parts of his plan under the criminal justice category include more diversity in police hiring, monetary cash bail reform, probation reform, expansion of clean slate, expanding eligibility for elderly and citizens that are in the infirmary to be released from prison, the creation of an office of indigent defense and compensation for wrongfully convicted individuals of $50,000 per year of wrongful incarceration.


ICYMIclick here for the highlights, detailed summaries, tracking spreadsheets and more.


Budget Hearings The House Appropriations Committee released their FY 2021-22 budget hearing schedule. The first hearings begin on Tuesday, February 16. View their full schedule here.


The Senate Appropriations Committee also released their FY 2021-22 budget hearing schedule. The first hearings begin on Monday, March 8. View their full schedule here.

Click for Pennsylvania Bulletin for February 6, 2021.

Virginia legislature votes to abolish death penalty. Click for report from Washington Post.

Headlines from Crisci Associates

Philly Council Offers First Draft of Its Proposed Police Oversight Commission

PA Voters Will Get the Last Word in Struggle Between Wolf and Lawmakers. Here’s What You Need to Know.

PA Lawmakers Consider Fast-Track Plan for Abuse Lawsuit Window

PA for Modern Courts + Philadelphia Bar Association: Op-Ed: Proposed Constitutional Amendment Threatens Independence of PA Appellate Courts

THE BEST OF THE MARSHALL PROJECT

The others choked by the cop who killed George Floyd. Minnesota prosecutors will be able to tell jurors in Derek Chauvin’s upcoming trial that the former Minneapolis cop charged with murdering Floyd used a similar technique on another person he arrested years earlier. But several other people have stepped forward to accuse Chauvin of using excessive force and showing a callous disregard for their pain. “Looking back on Floyd, that could have been me,” one said. “And I would no longer be alive right now to even tell my story.” Chauvin’s judge ruled last week that most of those stories, at least for now, will be shielded from jurors. In collaboration with The New York Times, Jamiles Lartey and Abbie VanSickle have our story.

How the search for contraband strips a person of basic human dignity. Corey Arthur, imprisoned in New York since 1997, says he’s been stripped-frisked by police or corrections officers over 1,000 times in his life, the first time when he was just 14. In prison, it happens “whenever a guard felt there was a need for him to search my naked body in the name of security,” he writes. Corrections officials say they have “zero tolerance for violence and abuse” but Arthur is convinced the assaults are more about domination than safety. “I fought back as hard as I could, but gloved fingers penetrated every hole in my body. It was no longer about searching for contraband.” Here is the latest in our “Life Inside” series.

The rate of new COVID-19 cases in prisons eases to 2 percent last week, mirroring a general decline in coronavirus cases around the country. But the death toll among prisoners nears 2,400. Over 100,000 prison employees also now have tested positive for the virus, and at least 174 have died. Check out our updated tracker, published In collaboration with the Associated Press.

When the severely mentally ill languish for decades on death row. The U.S. Supreme Court ruled nearly 35 years ago that the government cannot execute people who are mentally “incompetent” and unable to understand why they are to be put to death. But the justices left it up to each state to define “incompetency.” The result has been a mishmash of standards and rulings that in cases across the country have left the severyeaely mentally ill free from the threat of execution but still left in isolation on death row. “There’s just no real legal mechanism to reassess what should be done with those people,” says one of their lawyers. Keri Blakinger and Maurice Chammah have our story.

The Civil Obedience Act of 1968 has its moment. Federal prosecutors last summer started using a little-known federal “civil disorder” law to press their own felony charges against police protesters in Portland, Oregon, when local prosecutors balked. Now, as Christie Thompson reports, the Justice Department is using the same law against pro-Trump Capitol rioters. Defense attorneys for the protesters say the law is “hopelessly” unconstitutional—vague and overbroad—and discriminatory in its history and purpose. Published in partnership with The Oregonian.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

The Pittsburgh nonprofit newsroom PublicSource published a frankly horrifying investigation into how often the staff of the local jail strap people suffering from mental illness into a restraint chair, drawing on an impressive array of jail records, court documents, and human sources (as well as some national context from The Marshall Project). Reporter Juliette Rihl also highlights the lingering trauma for those forced into the chair. A woman named Kimberly Andrews tells her, “It’s always fresh in my head like it was yesterday or today, or like somebody’s about to run up in here right now and strap me down to a chair for hours. And not feed me or let me go to the bathroom.” —Maurice Chammah

This New Yorker story is an autopsy of the Trump administration’s efforts to dismantle protections offered by the immigration and asylum systems. That might sound dry, but it’s woven through with the stories of the people who lived through these changes. The desperate mother who sends her daughter to cross the border alone. The students who are trying to track the byzantine system so that they can help unwind the changes when a new administration comes to power. The Iraqi man stuck in limbo, even after risking his life to translate for American soldiers. He told reporters: “In Iraq, I was like an amulet,” he said. “I kept every soldier I worked with safe. But now my life is lived in a prison.” It’s an essential piece of journalism. —Abbie VanSickle

Petitions of the Week By ANDREW HAMM

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the discharge of student-loan debt for “undue hardship” and the statute of limitations for IDEA “child-find” violations.

The Bankruptcy Code allows the discharge of student-loan debt if repayment would cause the borrower “undue hardship.” The U.S. courts of appeals, however, apply different tests to decide what counts as an “undue hardship.” One test tries to look holistically at the “totality of the circumstances.” In McCoy v. United States, however, the U.S. Court of Appeals for the 5th Circuit applied what is known as the Brunner test. This three-part test requires someone with student loans to show: “(1) that [she] cannot maintain, based on current income and expenses, a ‘minimal’ standard of living for herself and her dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that [she] has made good faith efforts to repay the loans.” Because Thelma McCoy had secured a part-time job, among other things, the 5th Circuit found that she did not satisfy the Brunner test’s second prong. Arguing that the circuit split is often outcome-determinative, McCoy asks for the justices’ review.

Independent School District No. 283 v. E.M.D.H. ex rel. L.H. and S.D. presents the justices with a procedural question under the Individuals with Disabilities Education Act: How long do parents have to complain about a school district’s alleged failure to provide a “free appropriate public education” to a child with a disability? The statute gives parents two years, but a question remains as to when the two-year clock starts running. In this case, a Minnesota child with various psychological disorders entered a psychiatric day-treatment facility in May 2015. In June 2017, the child’s parents filed an administrative complaint that the district had failed in its “child-find” obligation, a district’s duty to ensure “[a]ll children with disabilities residing in the State … are identified, located, and evaluated.” In response, the district argued that two years had elapsed. However, the U.S. Court of Appeals for the 8th Circuit ruled that the violation was not isolated to May 2015 but continued day after day into the limitations period. In its petition, the district argues that this decision created a circuit split and asks for the justices’ review.

These and other petitions of the week are below:

McCoy v. United States
20-886
Issue: Whether the U.S. Court of Appeals for the 5th Circuit erred in applying the test from Brunner v. New York State Higher Education Services Corp., which prohibits discharge unless the debtor can prove, among other things, a “total incapacity” to repay the debt in the future, instead of the totality test to determine whether a debtor would suffer an “undue hardship” absent discharge of her student loan debt.

Independent School District No. 283 v. E.M.D.H. ex rel. L.H. and S.D.
20-905
Issue: Whether the continuing-violation doctrine applies to the two-year statutory time limit to file an administrative complaint under the Individuals with Disabilities Education Act.

Alaska v. Wright
20-940
Issue: Whether, when an offender has fully served the sentence imposed pursuant to a state conviction, a federal habeas court has jurisdiction to consider a 28 U.S.C. § 2254 challenge to that conviction merely because it served as a predicate for an independent federal conviction under which the offender is now in custody.

Atkins v. Williams
20-941
Issues: (1) Whether the unavailability of funds or other resources negates the subjective component of a deliberate indifference claim under the Eighth Amendment; and (2) whether, if lack of funds is a valid defense at all, a defendant can assert this defense when sued in his or her official capacity for injunctive relief.

Stewart v. City of Euclid, Ohio
20-951
Issue: Whether, when a municipal employee has violated the Constitution, a plaintiff must point to “clearly established law” (such as would overcome a defense of qualified immunity by an individual officer) in order to prove deliberate indifference for municipal liability purposes.

Ellis v. Liberty Life Assurance Company of Boston
20-953
Issue: What the correct test to apply is in deciding whether an otherwise applicable state law—here, a state law prohibiting discretion-conferring provisions in insurance contracts—can be displaced by an Employee Retirement Income Security Act of 1974 plan’s choice-of-law clause.

Owens v. Stirling
20-975
Issues: (1) For claims of ineffective assistance of trial counsel, what standard is to be used by federal courts of appeals for determining whether the underlying constitutional claim is “substantial” under Martinez v. Ryan, and how does it relate to the determination that a petitioner has met the requirements to obtain a Certificate of Appealability, under 28 U.S.C. § 2253(c) and as described by the Supreme Court in Miller-El v. Cockrell; and (2) whether, under the Martinez standard, it is proper for courts of appeals determining the substantial quality of the underlying constitutional claim to rely on an imbalanced consideration of the record, including ignoring evidence in the record in support of a petitioner’s underlying constitutional claim—as happened in Freddie Owens’s case.

Posted in Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Student-loan discharges in bankruptcy and public education for disabled kids, SCOTUSblog (Feb. 5, 2021, 5:59 PM), https://www.scotusblog.com/2021/02/student-loan-discharges-in-bankruptcy-and-public-education-for-disabled-kids/

February 9, 1825. House of Representatives elects John Quincy Adams as President of the United States. Click for details from history.com.

In Re: Order Adopting Rule 463 and Revising Comments to Rules 458, 460, 462 & 546 of Criminal Procedural Rules – No. 528 Criminal Procedural Rules Docket

The information below is from Crisci Associates PA Capitol Digest.

THIS WEEK

The House and Senate are scheduled for voting sessions on Monday, Tuesday and Wednesday. The Governor will give his budget address on Tuesday at 11:15 a.m. The Senate Judiciary Committee meets Monday to consider Senate Bill 137 (establish drug recognition expert training fund); and House Bill 14 (amend Constitution to allow two year window to sue for child sexual abuse).

Click for Pennsylvania Bulletin of January 30, 2021.

LAST WEEK

On Wednesday, the House passed the following bills:

HB 14 — a joint resolution amending Article I, Section 11 of the PA Constitution to provide for a two-year window in which civil lawsuits alleging childhood sexual abuse may be filed in court; notwithstanding any otherwise applicable statute of limitations defense. (Passed 187-15)

HB 55 — amendments to the Constitution prohibiting the denial of equal rights on the basis of race or ethnicity; excluding concurrent resolutions regarding termination or extension of disaster emergency declarations from having to be presented to the Governor; and requiring legislative approval of Emergency Disaster Proclamations beyond twenty-one days. (Passed 116-86)

HB 14 and HB 55 now head to the Senate for their consideration.

On Wednesday the Senate passed SB 87 — amending Titles 18 (Crimes and Offenses), 23 (Domestic Relations) and 42 (Judiciary and Judicial Procedure) to increase the penalties of crimes related to child pornography, to create a child sexual abuse task force and to provide for a sentence enhancement for sexual abuse of children. (Passed 46-2). SB 87 heads to the House for their consideration.

On Tuesday, the Senate passed SB 2, a Joint Resolution proposing amendments to the Constitution of the Commonwealth of Pennsylvania to provide for equality of rights on the basis of race and ethnicity, the termination or extension of a disaster emergency declaration and require action by the General Assembly to extend an emergency declaration beyond twenty-one days. (Passed 28-20)

HEADLINES FROM CRISCI ASSOCIATES

What to Watch for in PA Governor’s Budget Proposal

Confronted with Significant Flaws in COVID Data, PA Corrections Officials Concede ‘It’s Unacceptable’

Op-Ed: Jennifer Storm: I’m Leaving as PA’s Victim Advocate, But the Work Never Ends

State Rep. Frankel Builds Support for Hate Speech Legislation in Wake of Capitol Riots

PA Could Become a National Outlier in How it Elects Appellate Judges. Here’s Why Experts Are Worried.

PA Voters to Get Final Say on Limiting Governor Disaster Powers

Calls to Ban Firearms in PA Government Buildings Intensity Following Capitol Insurrection

Statute of Limitations Reform Takes Another Step in PA Legislature

Thousands of Drug, Alcohol Recovery Homes in PA Still Operate Without State Oversight

THE BEST OF THE MARSHALL PROJECT

The “TV version” of prison isn’t always what prison is like. As he was cycling in and out of trouble as a young man, Benjamin Boyce figured he would need to bulk up physically and emotionally to survive what he believed would be the daily horrors of prison life. When he finally arrived in prison, in Michigan, he learned that the sporadic abuse he endured seldom came from other prisoners.“The thousands of men who were caged with me were mostly good guys stuck in a bad situation,” writes Boyce, who was released from prison in 2005 and now teaches college communication classes.

Legal limbo. Abandoned, abused or neglected, some 26,000 young immigrants in the U.S. worry they will be deported before their green card applications come through. Federal law allows them to begin the process leading to permanent residency, but applicants have soared while the cap on green cards has remained steady. At times, local judges have stymied progress because they don’t understand how the law works. And COVID-19 has only worsened delays.

The death penalty and the hinge of history. Capital punishment was briefly outlawed from 1972 to 1976. It was resurrected by a sharply divided U.S. Supreme Court evaluating newly created rules governing capital cases in Texas and four other states. The court’s ruling allowed Texas to proceed with capital punishment. Since then, state executioners have killed more than 500 prisoners.

The rate of new COVID-19 cases decreases slightly inside state and federal prisons. A 3 percent increase over last week. But nearly 366,000 prisoners have now tested positive since last March. And there have been at least 2,314 prisoner deaths. There have also been nearly 98,000 reported cases among prison employees. At least 170 prison staff have died.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

For almost a year now, prisons have been incubators for the coronavirus; by the end of 2020, more than a fifth of the people held in state and federal lock-ups had fallen ill. But now that vaccines are here, many prisoners and staff are not willing to take them. This week Keegan Hamilton at VICE News dove into the vaccination problems facing the Federal Bureau of Prisons, where some union leaders report that half or more of the staff are refusing shots. The agency initially planned to take care of getting the new drugs to workers before vaccinating prisoners – but so many staff refused that officials at some institutions began offering the unused doses to incarcerated people, many of whom also refused. “Nobody’s really getting anything directly from the CDC because everybody says the government is just being too politically minded right now,” one prisoner told Hamilton. “Even the staff were telling inmates, frankly, ‘We’re not going to take it. We don’t want to be guinea pigs.’” – Keri Blakinger

Change could be coming to the Texas prison system – name change, at least. As Jolie McCullough at the Texas Tribune reported, a Republican state lawmaker is proposing to rename prisons that honor former slavers. The suggestion, which Rep. James White announced Friday, follows The Marshall Project’s reporting last year on the origin of prison names across the country, including in Texas. The Lone Star State’s 99 lock-ups include one facility named after a former Confederate captain, another named after a family who oversaw convict leasing and another named after the slave plantation that once sat on the same ground as the current prison. “We’ve got correctional officers who have lost their lives, we’ve got crime victims that have contributed immensely to good victim’s rights advocacy,” White said. “I just think there are other Texans that we can probably associate a name with a unit.” – Keri Blakinger

PETITIONS OF THE WEEK By ANDREW HAMM

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the men-only draft is unlawful sex discrimination and whether law enforcement can compel testimony in the form of a phone passcode.

The Military Selective Service Act requires men but not women to register for the draft. In 1981’s Rostker v. Goldberg, the Supreme Court upheld the law from a challenge of sex discrimination because women at that time were categorically banned from serving in combat roles. The Department of Defense lifted the ban on women in combat in 2013. National Coalition For Men v. Selective Service System is a challenge to the men-only draft on the ground that the reasoning from Rostker no longer applies to the modern military. The petition further argues that Rostker was itself wrongly decided because the Supreme Court “ultimately justified one sex-based discrimination by reference to another, rather than examining whether the combat ban was itself discriminatory.”

Robert Andrews is a New Jersey police officer who came under investigation for allegedly passing information about a narcotics investigation to the suspect. Investigators seized Andrews’ phones, but they were unable to unlock the phones to access the data. Officials sought a discovery order to compel Andrews to disclose his passcodes, which Andrews argued would violate his Fifth Amendment right against self-incrimination. The New Jersey Supreme Court ruled that a passcode, comprising a series of characters, was of “minimal testimonial value” for which the state could — and had here — overcome the constitutional protection by proving the phones belonged to Andrews. Claiming state and federal courts are divided on this question, the petition in Andrews v. New Jersey asks the justices to weigh in.

Finally, U.S. Citizenship and Immigration Services v. City and County of San Francisco, California is another challenge to the Trump administration’s so-called “public charge” rule. The rule interprets a provision of the Immigration and Nationality Act in which an immigrant can be denied a green card if, “in the opinion of” the secretary of homeland security, the person is likely to become dependent on government assistance. In 2019, the Department of Homeland Security broadened the public-charge determination to include temporary use of benefits such as Medicaid, food stamps and federal housing assistance. Local governments and immigrants’ rights groups have challenged the rule. The Supreme Court has relisted petitions in similar cases, Department of Homeland Security v. New York and Wolf v. Cook County, Illinois

These and other petitions of the week are below:

Broadway v. United States
20-836
Issues: (1) Whether courts owe deference to the Sentencing Commission’s commentary when it expands the scope of the Sentencing Guidelines; and (2) whether the rule of lenity and the right to due process preclude deference under Stinson v. United States when commentary to a Sentencing Guideline would increase a sentence.

Fry v. Rand Construction Corp.
20-861
Issues: (1) Whether the lower court erred in adopting what is, in essence, a “sole cause” standard for a “but-for” cause, in direct conflict with the Supreme Court’s holdings in Burrage v. United States and Bostock v. Clayton County; and (2) whether the correct causation standard for petitioner Arlene Fry’s Family and Medical Leave Act claim is but-for, motivating factor or negative factor.

Holland v. Westmoreland Coal Co.
20-880
Issues: (1) Whether the exception to the Anti-Injunction Act in South Carolina v. Regan — in which the Supreme Court held that the AIA did not bar South Carolina from filing an original-jurisdiction action in the Supreme Court to raise a 10th Amendment challenge to an income tax assessed on private citizens — is available to debtors who want to avoid paying a tax for reasons unrelated to the tax’s validity; and (2) whether Coal Industry Retiree Health Benefit Act premiums are “any tax” protected by the Anti-Injunction Act.

Jackson v. Hudson
20-911
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel to the petitioner in this case.
Issue: Whether 28 U.S.C. § 2255 — which allows a person in federal custody to challenge the legality of his detention by filing a post-conviction motion, as well as a petition for a writ of habeas corpus under 28 U.S.C. § 2241 if the Section 2255 remedy is “inadequate or ineffective to test the legality of his detention” — is “inadequate or ineffective” when, at the time of petitioner’s initial Section 2255 motion, circuit precedent foreclosed a potential claim, but that precedent has since been overruled by the Supreme Court.

National Coalition For Men v. Selective Service System
20-928
Issue: Whether, in light of the Department of Defense having lifted the ban on women in combat, the Supreme Court should overrule Rostker v. Goldberg, which upheld the men-only draft because women at that time were categorically prohibited from serving in combat roles, and hold that the federal requirement that men but not women register for the Selective Service, authorized under 50 U.S.C. § 3802(a), violates the right to equal protection guaranteed by the Fifth Amendment.

Andrews v. New Jersey
20-937
Issue: Whether the self-incrimination clause of the Fifth Amendment protects an individual from being compelled to recall and truthfully disclose a memorized passcode, when communicating the passcode may lead to the discovery of incriminating evidence to be used against him in a criminal prosecution.

U.S. Citizenship and Immigration Services v. City and County of San Francisco, California
20-962
Issues: (1) Whether entities that are not subject to the public-charge ground of inadmissibility contained in 8 U.S.C. § 1182(a)(4)(A), and which seek to expand benefits usage by aliens who are potentially subject to that provision, are proper parties to challenge the final rule that an alien is “inadmissible” if, “in the opinion of the [Secretary of Homeland Security] at the time of application for admission or adjustment of status, [the alien] is likely at any time to become a public charge”; and (2) whether the final rule is likely contrary to law or arbitrary and capricious.

Posted in Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, The men-only draft and compelled iPhone passcodes, SCOTUSblog (Jan. 29, 2021, 5:13 PM), https://www.scotusblog.com/2021/01/petitions-of-the-week-the-men-only-draft-and-compelled-iphone-passcodes/

February 6, 1788. Massachusetts becomes the sixth State to ratify the Constitution.

The information below is from Crisci Associates PA Capitol Digest.

The House has voting session days scheduled for January 25, 26 and 27. The House Judiciary Committee meets Tuesday at 10 a.m. to consider the following bills:

The Senate has voting session days scheduled for January 25, 26 and 27. The Senate Judiciary Committee meets January 25 to consider the following bills:

Senate Bills 84, 85 and 86 providing for filling a vacancy in the position of District Attorney for counties other than Philadelphia

Click for Pennsylvania Bulletin of January 23, 2021.

Supreme Court decides Commonwealth v. Cochran concerning restitution.

THE BEST OF THE MARSHALL PROJECT

Biden executive orders are a start on immigration. The new president signed six executive actions, reversed the discriminatory Muslim travel ban, paused some deportations for 100 days and unveiled the outlines of a sweeping new bill to create a pathway to citizenship for more than 10 million undocumented immigrants. Now comes the harder part: negotiating with Congress over that bill as legislators tackle new coronavirus-relief legislation and Trump’s impeachment trial.

A 3 percent increase in COVID-19 cases inside state and federal prisons. The tally nears 356,000 prisoners infected since March. At least 2,228 prisoners have died of COVID-related causes. Over 94,000 prison employees now have tested positive as well, and staff deaths rose sharply this week.

A pardon primer, just in time for the final Trump flurry. The federal clemency system was broken long before Donald Trump became president, experts and reform advocates argue. Some say the pardon process, at a minimum, should be moved out of the Justice Department to preclude federal prosecutors from playing such a key role.

“I should have been tested.” Corrections officials across the country are releasing prisoners without COVID-19 tests or without adequate quarantining. Out of the 31 prison systems that responded to our survey, 17 states and the federal Bureau of Prisons are testing incarcerated men and women before they are freed. And officials in just 13 states and the federal system coordinate the release of prisoners with local health officials. Many returnees, and their families, say that prison officials aren’t doing nearly enough to stop the spread of the virus.

THE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

At The Connecticut Mirror — among the best of the nonprofit media outlets to emerge in recent years — writer Kelan Lyons offers a model for a new kind of local criminal justice story. Yes, we hear about how Clyde Meikle killed his own cousin by shooting him in the stomach with a sawed-off shotgun, and how his cousin’s family was destroyed by the murder. But then we hear about how Meikle himself had been “shot, stabbed and burned before he reached his 20s,” and how he began drinking with his father at age ten. Once in prison, Meikle finally got the educational and emotional support he needed, and now even the head of the state prison system is calling him a “poster boy candidate” for early release. Lyons, the writer, zooms out to situate Meikle in a larger conversation going on in Connecticut (which we’ve covered as well) about how to make a more rehabilitation-focused prison system. I want to read the book version of this story, or see the movie. — Maurice Chammah

In a startling investigation, ProPublica reporters found that, despite the New York Police Department’s ban on chokeholds, officers are still using the maneuver—and going unpunished for it. Although the city’s Civilian Complaint Review Board had found 40 uses of chokeholds since the 2014 death of Eric Garner, no officers had been fired for using a chokehold; most lost vacation days or faced no punishment. — Abbie VanSickle

This year marks a grim centennial for Tulsa, Oklahoma: 100 years since the 1921 race massacre, when White mobs terrorized and murdered Black citizens, destroying the prosperity center known as “Black Wall Street.” The city has poured resources into revitalizing the area in recent years, hoping to create a tourism hub and a monument to reconciliation. But the Washington Post takes an unvarnished look at how millions in city tax incentives and loans have largely benefitted White-owned firms that have won redevelopment contracts. Black entrepreneurs and activists say the city’s efforts have failed to make things right in terms of economic opportunities and reduced them to renters in what should be a renewed center of commerce for the Black community. — Cary Aspinwall

PETITIONS OF THE WEEK BY ANDREW HAMM

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the federal government’s state-secrets privilege to protect classified information from disclosure.

In United States v. Zubaydah, respondent Zayn Husayn, also known as Abu Zubaydah, is a former associate of Osama bin Laden who was detained abroad after his capture in Pakistan and who is now being held at the U.S. government’s Guantanamo Bay detention facility. Zubaydah alleges that, before being transferred to Guantanamo, he was held at a CIA “dark site” in Poland, where two former CIA contractors used “enhanced interrogation techniques” against him. Zubaydah, through his attorneys, intervened in a Polish criminal investigation into the CIA’s conduct in that country, and he sought to compel the U.S. government to hand over evidence connected with that investigation. Though the government has declassified some information about Zubaydah’s treatment in CIA custody, it has protected other information as privileged state secrets. Rejecting the government’s argument, the U.S. Court of Appeals for the 9th Circuit allowed discovery in the case to proceed.

In Federal Bureau of Investigation v. Fazaga, Yassir Fazaga and two other Muslim men from Southern California brought multiple constitutional claims alleging that the FBI used a confidential informant to covertly gather information about Muslims in their communities based solely on their religion. The district court dismissed the claims on the basis of the state-secrets privilege. The 9th Circuit reversed and remanded for further proceedings, instructing the district court, with restrictions, to review the material over which the privilege was claimed to determine whether the surveillance was authorized and conducted lawfully.

The federal government is asking the Supreme Court to review the 9th Circuit’s rulings in both cases.

These and other petitions of the week are below:

Miles v. California
20-808
Issues: (1) Whether a court reviewing a claim under Batson v. Kentucky may consider reasons distinguishing stricken jurors from those accepted by the prosecutor when the prosecutor did not cite the distinguishing reason in the trial court as a basis for the strike; and (2) whether, for purposes of comparative juror analysis, the jurors being compared must have expressed the same combination of responses in all material respects for the comparison to have significant probative value.

Brewer v. Hooks
20-825
Issues: (1) Whether probable cause or arguable probable cause exists to seek a search warrant when an officer relies upon an informant who turns himself in, admits commission of multiple including unreported/ unsolved crimes, and whose information is partially corroborated; (2) whether an officer retains qualified immunity when he takes the additional step of consulting with and relying upon the advice of an assistant district attorney that probable cause exists prior to seeking and securing a search warrant; and (3) whether the subject of a knock-and-announce search warrant raising a weapon at officers executing such a warrant breaks the causal connection between the allegedly flawed search warrant and damage claims, including the death of a homeowner shot by officers who warned the subject homeowner to drop his weapon before firing.

Brown v. Davenport
20-826
Issue: Whether a federal habeas court may grant relief based solely on its conclusion that the test from Brecht v. Abrahamson is satisfied, as the U.S. Court of Appeals for the 6th Circuit held, or whether the court must also find that the state court’s application of Chapman v. California was unreasonable under 28 U.S.C. § 2254(d)(1), as the U.S. Courts of Appeals for the 2nd, 3rd, 7th, 9th and 10th Circuits have held.

United States v. Abu Zubaydah
20-827
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.

Federal Bureau of Investigation v. Fazaga
20-828
Issue: Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.

Washington v. Ali
20-830
Issue: Whether Graham v. Florida and Miller v. Alabama require an individual proportionality determination before imposing any sentence on a juvenile offender convicted in adult court.

Washington v. Domingo-Cornelio
20-831
Issue: Whether Graham v. Florida and Miller v. Alabama require an individual proportionality determination before imposing any sentence on a juvenile offender convicted in adult court.

Miesen v. Munding
20-857
Issues: (1) Whether the plaintiff in a derivative action, brought under diversity jurisdiction, must plead and prove the adequacy of its derivative demand letter as part of Federal Rule of Civil Procedure 23.1’s pleading requirements and whether the court must apply the law of the state of incorporation to determine the letter’s adequacy; and (2) whether a de-novo or an abuse-of-discretion standard applies to the review of dismissals of derivative actions under Rule 23.1.

Allen v. Wells Fargo & Co.
20-866
Issues: (1) Whether, under Fifth Third Bancorp v Dudenhoeffer, fiduciaries of an employee stock ownership fund are effectively immune from duty-of-prudence liability for the failure to publicly disclose inside information; and (2) whether Dudenhoeffer’s framework extends beyond prudence-based claims and applies to duty-of-loyalty claims against ESOP fiduciaries.

Posted in Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: Two cases on the state-secrets privilege, SCOTUSblog (Jan. 22, 2021, 1:36 PM), https://www.scotusblog.com/2021/01/petitions-of-the-week-two-cases-on-the-state-secrets-privilege/

Boston Globe begins “fresh start” program to allow people to request deletion of reports of their criminal conduct.

The Boston Globe has joined a handful of newsrooms around the country doing something once unthinkable: changing old articles because they are ruining a person’s life.

The newspaper on Friday launched its Fresh Start initiative, which allows people to petition to have information about them removed from or added to old stories, to have their names anonymized, or to have the stories delisted from Google searches. The Globe will prioritize stories involving minor crimes and those from long ago, but will also consider ones about “embarrassing” noncriminal behavior. Click for full report from Washington Post.

Headlines from Crisci Associates

Opinion: Another Problem with Judicial Districts: The Threat of Judicial Extremism

PA Prisons Don’t Always Tell Families When Inmates Are Sick. Officials Are Defending That Policy.

January 29, 1861. Kansas admitted to Union as 34th State.

The State Capitol is closed to the public due to COVID 19 restrictions. The State Capitol will be closed Monday to employees due to the Martin Luther King Holiday, and Tuesday and Wednesday due to safety concerns with the Presidential inauguration. Click for report from NBC10.

The information below is from Crisci Associates PA Capitol Digest.

The House and Senate are not in session this week. The House and Senate reconvene on January 25.

On Tuesday, Attorney General Josh Shapiro (D), Auditor General-elect Tim DeFoor (R) and Treasurer-elect Stacy Garrity (R) are scheduled to be sworn in. 

On January 13, the House Judiciary Committee approved two Amendments to the Constitution of Pennsylvania.


HB 14 — a joint resolution amending Article I, Section 11 of the PA Constitution to provide for a two-year window in which civil lawsuits alleging childhood sexual abuse may be filed in court; notwithstanding any otherwise applicable statute of limitations defense. (Passed 24-1) Note: This joint resolution was passed by the House and Senate during the 2019-20 legislative session.


HB 38 — a joint resolution proposing integrated amendments to the Constitution of the Commonwealth of Pennsylvania, organizing the judiciary into representative districts and further providing for residency requirements. (Passed 13-12) Note: This joint resolution was passed by the House and Senate during the 2019-20 legislative session. Chancellor Lauren McKenna sent a letter to the Committee in opposition to House Bill 38.


On January 13, the House State Government Committee approved one Amendment to the Constitution of Pennsylvania.


HB 55 — a joint resolution proposing constitutional amendments to add race and ethnicity under the Declaration of Rights Section of the Pennsylvania Constitution; and change the Emergency Declaration provision to limit emergency declarations to 21 days and need legislative approval to continue thereafter. (Passed) Note: This joint resolution was passed by the House and Senate during the 2019-20 legislative session.

To be added to the Constitution, each bill will have to be approved by the House and the Senate and be approved in a referendum by the voters.

Click for Pennsylvania Bulletin of December 16, 2020.

Headlines from Crisci Associates

House GOP Advances Plan to Elect PA Judges by Region; Opponents Say it Would ‘Gerrymander the Court’

Six Changes to PA’s Constitution are Making Their Way Through the Legislature. Most Could End Up Before Voters.

PA House Committee Approves Bill for Constitutional Amendment to Limit Gov’s Emergency Declarations to 21 Days

PA Firearms Background Checks Shatter Record in 4th Quarter 2020

PA State Police Resume Tracking Racial Data During Traffic Stops in Response to SpotlightPA Report

newsletter-mark-c8ed094d73d10a49043a2e4269f325b51bb85aa9b49231567845d5507b90724f.pngTHE BEST OF THE MARSHALL PROJECT

Over 2,100 prisoners, at least, have died of COVID-19 behind bars since last March. Coronavirus cases rose another 4 percent last week in state and federal prisons around the country. The tally is over 343,000 cases. More than 90,000 prison employees also have tested positive for COVID-19 and at least 146 have died. Only two states, Wyoming and Vermont, have yet to report a COVID-19-related death. In collaboration with the Associated Press, here is our updated tracker.

The extraordinary costs of killing the condemned. Justice Department officials were so eager to execute condemned federal prisoners last summer during the pandemic, they spent estimated millions on five executions in Terre Haute, Indiana. Taxpayer money went for food, hotel rooms, and other expenses for witnesses and staff, according to federal records obtained by the ACLU. TMP’s Keri Blakinger and Maurice Chammah have the details on some of the expenses, like nearly $6,500 for potato chips.

When White violence begets laws that end up punishing people of color. Even before the Capitol riot there was renewed political interest in enacting a federal domestic terrorism law that explicitly defines the crime. The white supremacy that helped motivate the Trump riot has stoked that interest. The history of such efforts, however, suggests that past episodes of white terrorism have generated laws and policies that disproportionately harm people of color. The Antiterrorism and Effective Death Penalty Act, passed in the wake of the Oklahoma City bombing, is only one example. TMP’s Eli Hager has more.

Wesley Lowery is joining The Marshall Project as a contributing editor. He will spearhead a new initiative to develop original locally-reported investigative stories, continuing The Marshall Project’s expansion into local journalism. Lowery will help us brainstorm how best to rethink local criminal justice reporting and reach audiences not served by traditional news media, as well as serve as a mentor to Marshall Project reporters. Lowery, who is also a correspondent for CBS News, was previously a national correspondent at The Washington Post.

newsletter-mark-c8ed094d73d10a49043a2e4269f325b51bb85aa9b49231567845d5507b90724f.pngTHE BEST OF THE REST

Criminal justice stories from around the web as selected by our staff.

Luke Mogelson of The New Yorker recounts what he saw and heard, in vivid detail, as Trump supporters stormed the Capitol, defacing government property and ultimately taking the lives of civilians and law enforcement alike. He writes that “the attack on the Capitol was a predictable apotheosis of a months-long ferment,” explaining that over the past four years, nationalist and racist rhetoric from the president has fueled a growing consensus in far-right circles that the United States is on the verge of civil war. This story is an intimate record of the events of that day, and the straight lines linking it to the defining moments of Donald Trump’s presidency. – Andrew R. Calderon

The Appeal has published a story and spreadsheet documenting law enforcement officers from around the country who attended the Trump rally that preceded the Capitol insurrection. There was nothing illegal about attending that rally, of course, and many of these individuals—including police officers, elected sheriffs, and state troopers—have denied participating in the invasion of the building. But many questions remain to be asked, and the best-placed people to ask those questions are reporters from newspapers, radio stations, and television outlets in the communities where these officers live and work. The spreadsheet approach is a creative way to push forward the next round of accountability journalism. — Maurice Chammah

Petitions of the week: Three Second Amendment petitions and a Wiretap Act claim against Facebook

By ANDREW HAMM

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether Facebook plug-ins violate the Wiretap Act and whether the Second Amendment protects an individual’s right to possess firearms outside the home or after a conviction for a nonviolent offense.

Passed in 1968, the Wiretap Act makes it unlawful for someone to “intentionally intercept[] … any wire, oral, or electronic communication,” unless that person “is a party to the communication.” Facebook users brought a class action alleging that the tech company violated the Wiretap Act between 2010 and 2011. Specifically, the users claim that Facebook plug-ins on different websites allowed Facebook to gather URL data even when they were logged out of Facebook, which the users contend was an unlawful “interception.” The district court dismissed the case on the ground that Facebook was a “party to the communication.” Acknowledging a circuit split, the U.S. Court of Appeals for the 9th Circuit ruled that the case could proceed. In Facebook v. Davis, the company asks the justices to review and reverse the 9th Circuit’s decision.

District of Columbia v. Heller held that the Second Amendment protects an individual’s right to possess firearms at home. The decision further indicated that longstanding firearms bans for felons were “presumptively lawful.” Under 18 U.S.C. § 922(g)(1), individuals convicted of crimes punishable by over one year’s imprisonment are barred from possessing firearms. Holloway v. Rosen and Folajtar v. Barr ask whether applications of the ban to nonviolent offenders violate the Second Amendment. Raymond Holloway cannot possess firearms because of a misdemeanor conviction for driving under the influence. Lisa Folajtar is barred because of a felony conviction for willfully making a materially false statement on her tax returns.

In Holloway’s case, the district court ruled that the ban was unconstitutional as applied to Holloway, who argued that he was not the type of “unvirtuous citizen” who has historically been disarmed because, among other things, his offense was a nonviolent misdemeanor for which his sentence was less than one year. The U.S. Court of Appeals for the 3rd Circuit disagreed, determining that Holloway’s DUI was “serious” enough to consider him an “unvirtuous citizen.” In Folajtar’s case, both the district court and the 3rd Circuit rejected her argument that her nonviolent crime was not “serious” enough for the ban. Both petitions ask the Supreme Court to reverse the decisions below and to clarify the standards for when “presumptively lawful” felon-possess bans rise to a Second Amendment violation.

Heller also left unresolved the extent of Second Amendment protections outside the home. In New York State Rifle & Pistol Association Inc. v. Corlett, Robert Nash and Brandon Koch applied for New York licenses to carry firearms outside the home. The licensing officer denied their requests after determining that, under New York law, they had “failed to show ‘proper cause’ to carry a firearm in public for the purpose of self-defense, because [they] did not demonstrate a special need for self-defense that distinguished [them] from the general public.” Nash, Koch and the New York State Rifle & Pistol Association ask the Supreme Court to take their case because the lower courts are split over the strength of Second Amendment protections outside the home.

These and other petitions of the week are below:

Facebook Inc. v. Davis
20-727
Issue: Whether an internet content provider violates the Wiretap Act when a computer user’s web browser instructs the provider to display content on the webpage the user visits.

Bognet v. Boockvar
20-740
Issues: (1) Whether the petitioners, four individual voters and one congressional candidate, have standing to raise their elections clause, electors clause and equal protection clause claims; (2) whether the Pennsylvania Supreme Court usurped the Pennsylvania General Assembly’s paramount authority from the Constitution to “direct [the] Manner” for appointing electors for president and vice president and to prescribe “[t]he Times, Places and Manner” for congressional elections; (3) whether the Pennsylvania Supreme Court’s extension violates the petitioners’ right to have their votes counted without dilution and their right not to have their votes treated in an arbitrary and disparate manner under the equal protection clause; and (4) whether Purcell v. Gonzalez counsels against enjoining unconstitutional usurpations of authority to regulate federal elections by state courts and executive branch officials.

Confederated Tribes and Bands of the Yakama Nation v. Yakima County, Washington
20-753
Issue: Whether the United States can change the scope of its re-assumption of Pub. L. 83-280 jurisdiction over crimes involving Indians in Indian Country years after the re-assumption became effective under 25 U.S.C. § 1323 without the Yakama Nation’s prior consent required by 25 U.S.C. § 1326.

Serrano v. U.S. Customs and Border Protection
20-768
Issue: Whether, when the government seizes a vehicle for civil forfeiture, due process requires a prompt post-seizure hearing to test the legality of the seizure and continued detention of the vehicle pending the final forfeiture trial.

Holloway v. Rosen
20-782
Issue: Whether a lifetime firearms prohibition based on a nonviolent misdemeanor conviction violates the Second Amendment.

Servotronics Inc. v. Rolls-Royce PLC
20-794
Issue: Whether the discretion granted to district courts in 28 U.S.C. § 1782(a) to render assistance in gathering evidence for use in “a foreign or international tribunal” encompasses private commercial arbitral tribunals, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held, or excludes such tribunals without expressing an exclusionary intent, as the U.S. Courts of Appeals for the 2nd, 5th and, in the case below, the 7th Circuit, have held.

Houston Community College System v. Wilson
20-804
Issue: Whether the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member’s speech.

RollinsNelson LTC Corp. v. United States, ex rel. Winters
20-805
Issue: Whether the False Claims Act requires pleading and proof of an objectively false statement.

Folajtar v. Barr
20-812
Issue: Whether 18 U.S.C. § 922(g)(1), which permanently prohibits nearly all felons—even those convicted of nonviolent crimes—from possessing firearms for self-defense, violates the Second Amendment, as applied to an individual convicted of willfully making a materially false statement on her tax returns.

New York State Rifle & Pistol Association Inc. v. Corlett
20-843
Issue: Whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

Posted in Facebook Inc. v. Davis, Bognet v. Boockvar, Confederated Tribes and Bands of the Yakama Nation v. Yakima County, Washington, Serrano v. U.S. Customs and Border Protection, Holloway v. Rosen, Servotronics Inc. v. Rolls-Royce PLC, Houston Community College System v. Wilson, RollinsNelson LTC Corp. v. U.S., ex rel. Winters, Folajtar v. Barr, New York State Rifle & Pistol Association Inc. v. Corlett, Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: Three Second Amendment petitions and a Wiretap Act claim against Facebook, SCOTUSblog (Jan. 15, 2021, 1:41 PM), https://www.scotusblog.com/2021/01/petitions-of-the-week-three-second-amendment-petitions-and-a-wiretap-act-claim-against-facebook/

January 20, 1949. Midshipmen from the U.S. Naval Academy march up Pennsylvania Avenue during Inaugural Parade of President Harry S Truman. Note the blimp above capitol dome.

On January 13, the House Judiciary Committee approved two Amendments to the Constitution of Pennsylvania.


HB 14 — a joint resolution amending Article I, Section 11 of the PA Constitution to provide for a two-year window in which civil lawsuits alleging childhood sexual abuse may be filed in court; notwithstanding any otherwise applicable statute of limitations defense. (Passed 24-1) Note: This joint resolution was passed by the House and Senate during the 2019-20 legislative session.


HB 38 — a joint resolution proposing integrated amendments to the Constitution of the Commonwealth of Pennsylvania, organizing the judiciary into representative districts and further providing for residency requirements. (Passed 13-12) Note: This joint resolution was passed by the House and Senate during the 2019-20 legislative session. Chancellor Lauren McKenna sent a letter to the Committee in opposition to House Bill 38.


On January 13, the House State Government Committee approved one Amendment to the Constitution of Pennsylvania.


HB 55 — a joint resolution proposing constitutional amendments to add race and ethnicity under the Declaration of Rights Section of the Pennsylvania Constitution; and change the Emergency Declaration provision to limit emergency declarations to 21 days and need legislative approval to continue thereafter. (Passed) Note: This joint resolution was passed by the House and Senate during the 2019-20 legislative session.

Source: Crisci Associates, January 13, 2021

To be added to the Constitution, each bill will have to be approved by the House and the Senate and be approved in a referendum by the voters.

The House Judiciary Committee is scheduled to consider House Bill 38 at 10 a.m. Wednesday morning.  The bill provides for a Constitutional Amendment to divide Pennsylvania into judicial districts for each appellate court.  It is identical to House Bill 196 which passed the House and Senate in the last term of the General Assembly.  If House Bill 196 passes both the House and Senate this year, it will be placed on the ballot for approval or rejection by the voters.  

The Philadelphia Bar Association opposes House Bill 38.  On Tuesday, Chancellor Lauren McKenna sent the attached letter to the Chairs of the House Judiciary Committee, the three members of the Committee from Philadelphia (Representatives Chris Robb, Jason Dawkins and Joe Hohenstein) and to Deborah Gross of Pennsylvanians for Modern Courts.  A copy of House Bill 38 is attached.


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