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

Chair of House Committee on Law and Order announces subpoenas on investigation of crime in Philadelphia. Click for report from ChesCo.

The House returns to session on September 12. The Senate returns to session on September 19.

Co-Sponsorship Memoranda

Fixing a Loophole in Pennsylvania’s Gun Background Check System by Representative Jason Ortitay (R-Allegheny, Washington)

Gun Violence Task Force by Representative Jared Solomon (D-Philadelphia)

Source:  Website of the Pennsylvania General Assembly.

Click for Pennsylvania Bulletin for August 6, 2022.

CRIMINAL JUSTICE PETITIONS OF THE WEEK by KALVIS GOLDE

101 Houseco, LLC v. United States
22-56
Issue: Whether a third-party claimant holding title to property that has been ordered forfeited as part of a criminal defendant’s punishment must be permitted, as a matter of due process, to challenge the underlying forfeiture order.

Marshal v. Texas
22-63
Issues: (1) Whether the Texas Court of Criminal Appeals’ application of the equitable doctrine of laches constitutes an independent and adequate state-law ground that bars review of petitioner’s constitutional claims; (2) whether the court’s application of laches violated petitioner’s right to due process of law; and (3) whether the prosecution is estopped from relying on the doctrine of laches when its misconduct caused the delay in filing the habeas corpus application.

Recommended Citation: Kalvis Golde, Water and electric quarrels test the limits of tribal power, SCOTUSblog (Aug. 5, 2022, 3:04 PM), https://www.scotusblog.com/2022/08/water-and-electric-quarrels-test-the-limits-of-tribal-power/

Secretary of State James Byrnes looks on as President Harry Truman signs the United Nations charter in Washington on Aug. 8, 1945.

Secretary of State James Byrnes looks on as President Harry S. Truman signs the United Nations charter in Washington on Aug. 8, 1945. | AP Photo. Photo from politico.com

August 8, 1945. President Truman signs United Nations Charter. With the President’s signature, the United States became the first natiion to ratify the United Nations Charter. Click for report from history.com.

September 30 is deadline to comment on proposed changes to Appellate Rules

The Appellate Court Procedural Rules Committee is considering proposing to the Supreme Court the amendment of Pennsylvania Rules of Appellate Procedure 311, 1311 and 1312 governing orders sustaining venue, personal jurisdiction, or in rem jurisdiction.
Click for text and report of the Appellate Court Procedural Rules Commmittee.

The House returns to session on September 12.  The Senate returns to session on September 19.

Recently introduced bills

Representative Thomas L. Mehaffie, III (R-Dauphin) has introduced House Bill 2771 which would require  high school students to complete a course in personal economics and personal finance before graduating from high school.  Click for Co-Sponsorship Memorandum.  The bill was referred to the House Education Committee.

Representative Dan Frankel (D-Allegheny) has introduced House Bill 2775 updating the offense of ethnic intimidation and renaming the offense “hate-based intimidation.”  Click for Co-Sponsorship Memorandum. The bill was referred to the House Judiciary Committee.

Co-Sponsorship Memoranda

Wrongful Conviction Compensation by Representative Francis A. Ryan (R-Lebanon)

Immunity protection for the manufacturing of controlled substances for approved Federal drug trials by Representative Tracy Pennycuick (R-Montgomery)

Prohibiting Firearms in the Capitol by Representative Angel Cruz (D-Philadelphia)

Source:  Website of the Pennsylvania General Assembly.

Click for Pennsylvania Bulletin for July 30, 2022.

SCOTUSBLOG: Lengthlier decisions and shrinking cohesion: Indications for the future of the Supreme Court.

By JAKE S. TRUSCOTT and ADAM FELDMAN, July 28, 2022.

When the Supreme Court ended the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, the justices collectively wrote more than 200 pages of opinions. Justice Samuel Alito’s 35,631-word majority opinion spanned 108 pages (including appendices). The joint dissent from the three liberal justices was 66 pages. Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh added concurring opinions totaling 31 pages.

The Dobbs majority opinion was the third-longest Supreme Court opinion since the beginning of the 1946-47 term, according to our analysisDobbs is also the only example of a case where a complete draft of the majority opinion was leaked prior to the publication of the final draft. The long lapse between Feb. 10 – when the leaked draft was marked as having been circulated among the justices – and the June 24 release of the final opinion serves as the first time the public has been given a glimpse into the court’s drafting process.

The process and the outcome in Dobbs reveal two burgeoning themes in the court’s work: fewer unanimous decisions and lengthier overall opinions. Both trends could further diminish perceptions of a collegial and productive court.

Click for the rest of the report.

Recommended Citation: Jake S. Truscott and Adam Feldman, Lengthier opinions and shrinking cohesion: Indications for the future of the Supreme Court, SCOTUSblog (Jul. 28, 2022, 4:26 PM), https://www.scotusblog.com/2022/07/lengthier-opinions-and-shrinking-cohesion-indications-for-the-future-of-the-supreme-court/

August 4, 1944. Anne Frank is captured. Click for report from history.com.

Pennsylvania Commission on Sentencing  July 28, 9 a.m. on Zoom.  The Commission will be holding this special virtual public meeting for the purpose of reviewing sentencing guidelines proposals and to vote to approve the selection of a Deputy Director for Administration and Outreach.  Click to register.

The House returns to session on September 12. The Senate returns to session on September 19.

Evading arrest bill becomes law without Governor’s signature. Act 95 of 2022 amends Title 18 concerning evading arrest or detention on foot and harming a police animal while evading arrest or detention. (Source: Dentons Cohen & Grigsby’s Weekly Recap).

Recently introduced legislation.

Senator Camera Bartolatta (R-Beaver, Greene, Washington) introduced Senate Bill 1296 which would repeal statutes requiring incarcerated individuals to pay co-pays for medical services.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senator Steven Santasiero (D-Bucks) has introduced Senate Bill 1300 restricting assault weapons and large capacity magazines.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senator John I. Kane (D-Chester, Delaware) has introduced Senate Bill 1302 which would require the showing of identification before purchasing firearm ammunition.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Representative Pam Snyder (D-Greene, Fayette, Washington) has introduced House Bill 2732 which would lower the age for exemption from jury duty from 75 to 70.  The exemption applies to those persons who request it. Click for Co-Sponsorship Memorandum.  The bill was referred to the House Judiciary Committee.

Representative Anthony M. DeLuca (D-Allegheny) has introduced House Bill 2745 eliminating probation as an option for penalty for contempt of court in protection from abuse cases.  Click for Co-Sponsorship Memorandum.  The bill was referred to the House Judiciary Committee.

Representative Paul Schemel (R-Franklin) has introduced House Bill 2754 to amend the slayers statute to cover elder abuse.  Click for Co-Sponsorship Memorandum.  The bill was referred to the House Judiciary Committee.

(Source: Website of Pennsylvania General Assembly).

Click for Pennsylvania Bulletin for July 23, 2022.

Commonwealth v. Ryan Pownall, No. 17 EAP 2021. This case involves a pretrial motion in a case involving a killing by a police officer. The Supreme Court’s decision centered on when is a pre-trial order dispositive and ripe for an appeal.

Click for Opinion by Justice Dougherty

Click for Concurring Opinion by Justice Dougherty

Click for Dissenting Opinion by Justice Wecht

PETITIONS OF THE WEEK by Kalvis Golde

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

In three of the past four terms, the Supreme Court has rejected broad readings of white-collar criminal laws urged by the federal government. Those decisions concerned conduct ranging from wire and computer fraud to tax violations. This week, we highlight cert petitions that ask the court to consider, among other things, whether the government is correct that a federal identity-theft statute broadly applies to anyone who merely says or writes someone else’s name while committing a crime, or instead requires intentional misrepresentation of identity.

Although most people associate identity theft with having a bank account stolen, people use false names when committing all sorts of crimes. In 2004, Congress passed sentencing enhancements meant to crack down on this growing issue. When David Dubin allegedly overbilled Medicaid by $92 for psychological testing performed on a young patient in an emergency shelter in Texas, a federal prosecutor charged Dubin with health care fraud. The prosecutor also charged him with “aggravated identity theft” under the 2004 enhancements because Dubin wrote the patient’s name on the bill submitted to Medicaid for reimbursement. A jury convicted Dubin on both counts.

Dubin argued that the identity-theft enhancement applies only when someone intentionally lies about their or someone else’s identity as part of a crime, neither of which he did here. Remarking that “this doesn’t seem to be an aggravated identity theft case,” the trial judge nonetheless upheld the verdict under binding precedent in the U.S. Court of Appeals for the 5th Circuit. The judge voiced “hope [he would] get reversed on the aggravated identity count.” That hope fell short by one vote, as the full 5th Circuit affirmed by a vote of 9-1-8.

In Dubin v. United States, Dubin asks the justices to provide clarity on this issue, which he says has now split nine of the 13 circuit courts of appeals. The answer matters to Dubin because the enhancement added two years onto his prison sentence. But it also matters for the country, he argues, because under the 5th Circuit’s reading “the additional two-year sentence applies not only to most every commission of healthcare fraud, but would also sweep in tax preparers, immigration attorneys, and anyone else convicted of submitting any form on someone’s behalf that contains a misrepresentation unrelated to the person’s identity.”

A list of this week’s featured petitions is below:

Momphard v. Knibbs
22-8
Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred in finding that a reasonable officer in petitioner’s position would not have perceived a danger that justified lethal force; and (2) whether the 4th Circuit erred in defining respondent’s clearly established constitutional right in a general sense by stretching cases with superficial similarities for purposes of abrogating qualified immunity.

Dubin v. United States
22-10
Issue: Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.

Cuker Interactive, LLC v. Pillsbury Winthrop Shaw Pittman, LLP
22-18
Issue: Whether a federal court deciding a state-law issue in a bankruptcy case must apply the forum state’s choice-of-law rules or federal choice-of-law rules to determine what substantive law governs.

McCutchen v. United States
22-25
Issue: Whether, for purposes of the Fifth Amendment’s taking clause, a delegation of general legislative rulemaking authority to an agency constitutes an inherent restraint on title to any personal property that could be subsequently subjected to a prospective legislative rule, rendering the physical taking of the property non-redressable.

Posted in FeaturedCases in the Pipeline

Cases: Momphard v. KnibbsDubin v. United StatesCuker Interactive, LLC v. Pillsbury Winthrop Shaw Pittman, LLPMcCutchen v. United States

Recommended Citation: Kalvis Golde, Health care fraud case sharpens dispute over what counts as “aggravated identity theft”, SCOTUSblog (Jul. 22, 2022, 4:31 PM), https://www.scotusblog.com/2022/07/health-care-fraud-case-sharpens-dispute-over-what-counts-as-aggravated-identity-theft/

House Judiciary Committee Chair Peter Rodino (with gavel) commences an impeachment hearing on July 29, 1974.
 Keystone-France/Gamma-Keystone via Getty Images https://www.vox.com/2014/8/7/5970967/what-was-watergate-scandal-nixon

July 27, 1974: House Judiciary Committee passes first article of impeachment of President Nixon. Click for report from history.com.

The House returns to session on September 12. The Senate returns to session on September 19.

The Pennsylvania Commission on Sentencing meets July 28 at 9 a.m. Public meeting to review sentencing guideline proposals and to vote to approve the selection of a Deputy Director for Administration and Outreach. To attend register at https://bit.ly/SpecialVirtualPublicMtg2022July28

The Governor has signed the following bills:
House Bill 773 which increases the penalties for those who have multiple convictions for driving under the influence.

House Bill 940 which provides for a sentencing enhancement for the killing of a domestic animal in the cases of burglary or criminal trespass and makes it a crime to intentionally torture or kill police animals.

House Bill 975 which provides that a caretaker of a care-dependent person commits a felony of the third degree if the caretaker engages in sexual intercourse.

House Bill 2032 which amends the Sexual Assault Testing and Evidence Collection Act, providing that failure to report injuries by firearm or criminal act does not constitute an offense if the submission of sexual assault evidence is an anonymous submission.

House Bill 2039 which provides for the right of crime victims to be notified of and attend bail hearings.

House Bill 2125 which removes the term “homosexual” from the definition of offenses related to prostitution and obscene materials and performances. 

House Bill 2157 which adds restrictions and increases penalties for misuse of fireworks.House Bill 2271 providing for sentencing enhancements related to the offense of sexual extortion.

House Bill 2271 providing for sentencing enhancements related to the offense of sexual extortion.

House Bill 2464 which updates statutes relating to crime victims.

Senate Bill 588 amends Title 18 (Crimes and Offenses) and in general provisions, further providing for when prosecution barred by former prosecution for different offense.

Senate Bill 904 permitting probation officers to use technology portals in lieu of requiring offenders on probation to appear in person.  “Technology portal” is defined as “a device, including a cellular phone and other electronic device, that allows simultaneous voice and video communication.”

Senate Bill 905 adds to the powers and duties of the Pennsylvania Commission on Crime and Delinquency’s County Adult Probation and Parole Advisory Committee by requiring them to make recommendations and standards for probation and parole personnel, including circumstances under which an offender’s schedule should be weighed when making scheduling decisions.

Senate Bill 1179 updating the Domestic and Sexual Violence Victim Address Confidentiality Act by adding victims of human trafficking and victims of kidnapping as being eligible to apply to become program participants in the address confidentiality program.

House investigation concerning prosecution of violent crimes in Philadelphia

House Speaker Bryan Cutler (R-Lancaster) announced he appointed members to the Select Committee on Resorting Law and Order (established via House Resolution 216). Rep. John Lawrence (R-Chester/Lancaster) will serve as Chair; the other members of the committee being Reps. Wendi Thomas (R-Bucks), Torren Ecker (R-Adams/Cumberland), Amen Brown (D-Philadelphia) and Danilo Burgos (D-Philadelphia). See: PA House committee formed to consider Philly DA’s impeachment. ABC27, updated July 14, 2022.

Click for Pennsylvania Bulletin for July 16, 2022.

(Sources: Websites of Pennsylvania General Assembly, Governor Tom Wolf, Pa Code and Bulletin. Also Dentons Cohen & Grigsby’s Weekly Recap.)

THE BEST OF THE MARSHALL PROJECT

More proof there’s no scientific way to predict a defendant’s future dangerousness. The Texas justice system trusted psychiatrist Edward Gripon 16 years ago when he predicted that convicted murderer Ramiro Gonzales would pose a threat to others if he did not get the death penalty. Will the Texas trust Gripon now that he says that Gonzales should not be executed this week because he has since transformed himself behind bars? The case highlights Texas’ particularly harsh capital sentencing standard that requires an estimate of future dangerousness to dictate a defendant’s fate. In collaboration with The Independent, TMP’s Maurice Chammah and Keri Blakinger have our story.

A journey toward police reform in the shadow of New York City. In partnership with NPR’s Embedded podcast, The Marshall Project has been investigating policing in Yonkers, just north of New York City, which has a long history of brutality, corruption and racism among its officers. The Justice Department has been monitoring the city’s police department for more than a decade. Yonkers’ police commissioner, John Mueller, has committed to reform. In the first episode of our four-part series, we explore whether change is possible there and ask what reform would look like.

“Everyone is sweating, even if they’re standing still.” Demetrius Buckley, a writer serving a second-degree murder sentence in Michigan, reminds us of the toll summer heat takes on incarcerated people. His sheets are dampened by humidity even when he is not laying on them. The floors sweat. The pages of his books in his cell warp on their shelves. “I suspect this moisture has to be some kind of health hazard, with dangerous bacteria and mold growing and spreading. And even though I don’t usually have allergy symptoms, I begin to heave and huff,” he writes in the latest in our “Life Inside” series.

Rachel Kincaid joins The Marshall Project. TMP has hired Rachel Kincaid as its first Newsletter Manager. In this new role, Kincaid will help grow and strengthen the organization’s efforts to connect directly with readers through newsletters. “Rachel has such a range of skills — from editing to management to newsletter development and more,” said Heather Ciras, TMP’s Director of Audience Development.

THE BEST OF THE REST

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

A new retrospective on the landmark death penalty ruling handed down 50 years ago by the U.S. Supreme Court. “Fifty years after Furman, few of the death penalty’s flaws have been corrected; its opponents argue even more have come to light.” The Washington Post TMP Context: Capital punishment has been limited by states, instead. The Marshall Project

“I didn’t feel like I had a choice.” For more than a century, the Junior Reserve Officers’ Training Corps has sought to instill U.S. military values in teenagers through courses in public high schools. But over the past five years, at least 33 JROTC instructors have been criminally charged with sexual misconduct toward their young students. The victims tend to come from disadvantaged backgrounds and were hoping to parlay their training into military careers. The Pentagon certifies the instructors, but state and local officials don’t require them to have teaching certificates or be regularly monitored. The New York Times

A milestone in Boston policing. Michael Cox, a former Boston police officer beaten by his fellow cops 25 years ago when they mistook him for a shooting suspect, will leave his post as police chief in Ann Arbor, Michigan and return to lead the Boston Police Department. Cox sued that department in 1995 for civil rights violations and fought for years to force police officials to acknowledge the brutality and cover-up that marked his case. The Boston Globe He promised on Wednesday to make the department, notorious for its racist history, more diverse for the officers who work in it and for the communities they serve. The Associated Press

DNA evidence from a single strand of hair cracks a 40-year-old murder case. Police arrested a 70-year-old Nevada man and charged him with murdering a 5-year-old girl four decades ago in Seaside, CaliforniaThe New York Times

Blame the Bundys, too. Far-right militia groups, led by extremists like Cliven Bundy, tested federal resolve for years in political showdowns in Western states. That helped draw support for insurrectionist groups like the Oath Keepers, Proud Boys and Three Percenters. Slate

More: “Constitutional sheriffs,” members of a right-wing law enforcement group, continue to hew to baseless claims about the results of the 2020 election. They met this week in Las Vegas to share conspiracy theories and pledge to continue to investigate election results. Kansas City Star TMP Context: The rise of the anti-lockdown sheriffs. The Marshall Project

The abortion rights pushback continues across the country. Alan Braid, an abortion provider who defied Texas’ abortion ban last year, says he will open new clinics in Illinois and New Mexico. The Washington Post Prosecutors in Charlotte, Atlanta and Indianapolis have pledged not to use public resources to pursue abortion providers. The Washington Post Republicans blocked a Senate bill that would guarantee the right to interstate travel for abortions. CNN More: Public health officials in the Biden administration have warned pharmacists that their refusal to fill contraception and abortion pill prescriptions may violate federal law. Politico

Criminal Justice Petition of the Week by Kalvis Golde

Shoop v. Cunningham
21-1587
Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit erred by granting habeas relief based on an alleged misapplication of its own circuit precedent under the Antiterrorism and Effective Death Penalty Act, which generally prohibits courts from awarding habeas relief to state prisoners but lifts that prohibition with respect to prisoners in custody because of a state-court ruling that was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; and (2) whether, when the requirements for a federal evidentiary hearing are otherwise satisfied but Federal Rule of Evidence 606(b)(1) forbids considering the only evidence supporting an evidentiary hearing, a court must hold the hearing regardless.

Recommended Citation: Kalvis Golde, Officers question award of post-mortem damages under Section 1983, SCOTUSblog (Jul. 15, 2022, 2:47 PM), https://www.scotusblog.com/2022/07/officers-question-award-of-post-mortem-damages-under-section-1983/

https://bloximages.newyork1.vip.townnews.com/stltoday.com/content/tncms/assets/v3/editorial/d/99/d999130e-f8be-520c-aa55-7cfe87b6df58/5b4f3d33d7d77.image.jpg?resize=1333%2C1003

July 18, 1940. FDR nominated for third term. Click for report from history.com.

Governor Wolf has signed the following bills into law:

House Bill 1561 (Act 32) amends the Mental Health Procedures Act to further clarify confidentiality practices, bringing the commonwealth into alignment with federal confidentiality laws. 

House Bill 1563 (Act 33) amends the Pennsylvania Drug and Alcohol Abuse Control Act to further clarify confidentiality practices, bringing the commonwealth into alignment with federal confidentiality laws. 

Senate Bill 904 (Act 46) permits a probation officer to use technology portals in lieu of requiring offenders on probation to appear in person. Under the bill, “technology portal” is defined as “a device, including a cellular phone and other electronic device, that allows simultaneous voice and video communication in real time between the offender and the probation officer.”

Senate Bill 905 (Act 47) adds to the powers and duties of the Pennsylvania Commission on Crime and Delinquency’s County Adult Probation and Parole Advisory Committee by requiring them to make recommendations and standards for probation and parole personnel, including circumstances under which an offender’s schedule should be weighed when making scheduling decisions.

Senate Bill 1179 (Act 50) updates the Domestic and Sexual Violence Victim Address Confidentiality Act by adding victims of human trafficking and victims of kidnapping as being eligible to apply to become program participants in the address confidentiality program.

Recently passed legislation

On July 6, the House passed Senate Bill 588 (183-17) clarifying double jeopardy.  The bill, having previously passed the Senate, was presented to the Governor.

On July 1, the House concurred with Senate amendments to House Bill 2039 (141-59).  The Bill would amend the Crime Victims Compensation Act to give victims the right to testify at bail hearings.  The bill was presented to the Governor.

On July 1, the House concurred with Senate amendments to House Bill 331 (173-27) concerning legitimate cannabis related businesses.  The bill was presented to the Governor.

Newly Introduced bills

Representative  Christopher Quinn (R-Delaware) has introduced House Bill 2711 adding mitragynine and 7-hydroxmitragynine (found in Kratom) to the schedule of controlled substances.  Click for Co-Sponsorship Memorandum.  The bill was referred to the House Judiciary Committee.

Representative Chris Rabb (D-Philadelphia) has introduced House Bill 2717 providing for inflation adjustment for the grading of certain offenses.  Click for Co-Sponsorship Memorandum.  The bill was referred to the House Judiciary Committee. 

Representative Chris Rabb (D-Philadelphia) has introduced House Bill 2718 (allowing incarcerated persons to vote) and House Bill 2719 (allowing incarcerated individuals to cast absentee ballots).  Click for Co-Sponsorship Memorandum.  The bills were referred to the House State Government Committee.

Representative Chris Rabb (D-Philadelphia) has introduced House Bill 2720 providing for the offense of drug delivery resulting in death.  Click for Co-Sponsorship Memorandum.  The bill was referred to the House Judiciary Committee.

Representative Angel Cruz (D-Philadelphia) has introduced House Bill 2722 concerning the registration of animal abuse offenders.  Click for Co-Sponsorship Memorandum.  The Bill was referred to the House Judiciary Committee.

Representative Chris Rabb (D-Philadelphia) has introduced House Bill 2723 providing a defense for the crime of theft of leased property.  Click for Co-Sponsorship Memorandum.  The bill was referred to the House Judiciary Committee.

The House returns to session on September 12. The Senate returns to session on September 19.

Click for Pennsylvania Bulletin for July 9, 2022.

(Source: Website of Pennsylvania General Assembly)

THE BEST OF THE MARSHALL PROJECT

Nicholas and Tori talk it through. As soon as Nicholas Brooks was taken to Rikers Island jail in New York, he discovered that telling staff he was depressed would land him in solitary. Later, in prison, he learned that he could talk to other incarcerated people about their own depression if he approached them as journalistic subjects. “I liked the idea of discussing mental health without the fear of being placed in an isolation cell. And maybe understanding the struggles of others would help me get out of my own head,” writes Brooks in the latest in our “Life Inside” series.

What’s next for New Orleans’s justice reforms now that violent crime is rising? For decades, New Orleans has been home to one of the most punitive and abusive criminal legal systems in the world. In recent elections, voters opted for a slate of progressives who touted a new approach — but as violent crime has risen, so has backlash and fear. There’s no evidence that new policies are contributing to crime — the increase started before the reformers took office and mirrors increases elsewhere — but the political tensions are testing the movement. In collaboration with NBC News, TMP’s Jamiles Lartey has our story.

Your intuition is correct: Mass shootings are both rare and on the rise in the U.S. There is no national, legal definition of “mass shooting.” But, even applying the most conservative definition, there has been a marked increase in the last five years in the number of deadly incidents, like the massacre at the Fourth of July parade in Illinois on Monday. The attacks have brought higher death tolls, too, across the country. In the past five years, assault-style weapons were used in nearly half of mass shootings, compared to a third of them in the previous five years. TMP’s Anastasia Valeeva, Wendy Ruderman and Katie Park have our analysis.

THE BEST OF THE REST

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

“A mass shooter creation machine.” Trying to understand the mind of the mass shooter in Illinois this week means comprehending a dark, online subculture. NPR More: The Highland Park shooting highlights flaws in Illinois’s gun restrictions. Officials say the suspect showed warning signs of violence, but in the end, he was able to lawfully purchase the gun he allegedly used in the attack. The New York Times The investigation into the shooter, Robert E. Crimo III, highlights the absence of a national gun registry that would allow law enforcement officials to quickly trace weapons. The Daily Beast TMP Context: What you need to know about the rise in mass shootings in the U.S. The Marshall Project

A rare legal win for drug distributors in an opioid lawsuit. A federal judge in West Virginia this week ruled in favor of three companies who had been sued in a civil case for the harm caused by distributing 81 million pain pills in one county over eight years. USA Today The ruling by U.S. District Judge David Faber, came nearly a year after the same three corporate defendants, AmerisourceBergen, Cardinal Health and McKesson, paid $21 billion to settle similar claims brought by state attorneys general and other plaintiffs. The Washington Post

A reminder that prison food sucks (and causes health problems that go largely untreated behind bars). The Appeal TMP Context: What’s in a prison meal? The Marshall Project

The Justice Department is investigating Texas’ controversial “Operation Lone Star,” recently obtained state records reveal. The feds are reportedly looking into alleged civil rights violations under the multibillion-dollar border initiative pushed by Texas Gov. Greg Abbott and his political allies. There have already been published reports about the mistreatment of National Guard troops sent to patrol the border and arrests deep into the state that have nothing to do with border enforcement. ProPublica/Texas Tribune TMP Context: The seven times Texas officials misled the public about Operation Lone Star. The Marshall Project

There are more victims of post-traumatic stress disorder (and crime) than you think. Virginia Eubanks was shocked when her partner was attacked by a group of men after leaving a corner store in Troy, New York. He suffered devastating physical injuries, from which he slowly healed, but it was the PTSD he endured that had a devastating impact on Eubanks, who, as his caregiver, struggled to make sense of the gulf between their lives before and after the attack. “Fighting through the aftermath of the attack was exhausting. But it was also very simple, all action and no feeling,” she writes. The New York Times

We need to talk more about the deadly link between climate change and incarceration.

“No national data exists; but as of 2019, 13 states in the hottest regions of the country do not provide universal air conditioning in state prisons.” The Crime Report TMP Context: The lethal toll of hot prisons. The Marshall Project

First meeting of the Niagra Movement, Fort Erie, Ontario, 1905. https://www.wellandtribune.ca/ths/news/canada/2019/02/18/naacp-s-first-meeting-was-held-in-canada-but-there-were-no-canadians-there.html

July 11, 1905. First meeting of the Niagra Movement. Click for details from history.com.

Happy Birthday USA

Commonwealth v. Prinkey: Supreme Court rules that a challenge to a sentence as presumptively vindictive and is congnizable under the PCRA.

Click for Opinion of Justice Wecht.

Click for Dissenting Opinion by Justice Mundy.

July 31 is the deadline to apply for position on the Committee on Rules of Evidence.

Applicants should be knowledgeable about the Pennsylvania Rules of Evidence and possess trial court experience. The Committee meets approximately three times a year at locations in the eastern, western and middle parts of the Commonwealth. Meetings are generally one day in duration. Click for instructions to apply.

Bills Passed by House of Representatives

Senate Bill 814 —  providing for the offense of evading arrest or detention on foot.  (127-73).  This bill, having previously passed the Senate, will go to the Governor.

Senate Bill 1179 — confidentiality of addresses of victims of domestic and sexual violence.     (200-0).  This bill having previously passed the Senate, will go to the Governor.

Bills Passed by Senate

House Bill 2039 — right of victim to testify at bail hearing.   (46-4). This bill goes to the Senate.

House Bill 1563 —  confidentiality of patient records. (46-4). This bill, having previously passed the House, will go to the Governor.

House Bill 1561 — confidentiality of patient records under the Mental Health Procedures Act.  (47-3).  The bill, having previously passed the House, will go to the Governor.

Newly Introduced Bills

Senate Bill 1295 — providing for the offense of fentanyl delivery resulting in death.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senate Bill 1300 — assault weapons and large capacity magazines.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Senate Bill 1302 — identification required for purchase of firearm ammunition.   Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

Co-Sponsorship Memoranda

Reasonable and Responsible Firearm Purchasing Rules by Senator John I. Kane (D-Chester, Delaware)

Pennsylvania Gun Incident Reporting System  by Representative Danielle Friel Otten (D-Chester)

Statewide Gun Buyback Program by Representative Angel Cruz (D-Philadelphia)

Click for Pennsylvania Bulletin for July 2, 2022.

THE BEST OF THE MARSHALL PROJECT

Moving forward from Furman. Fifty years ago, the U.S. Supreme Court briefly struck down the death penalty as “cruel and unusual punishment.” Then, as now, public support for capital punishment had waned amid questions about racial disparities and other problems. But there have been big changes in the legal and political landscape since Furman v. Georgia was decided in 1972. If its recent decisions are any indication, the Supreme Court itself is far more conservative and supportive of capital punishment. And several states since 1972 have stopped their “machinery of death” by outlawing capital sentences. In collaboration with The New York Times, Maurice Chammah has our story.

Welcome Geoff Hing. Hing joins The Marshall Project as a data reporter to contribute to our investigative journalism. “Geoff will help expand our horizons, deepen our understanding, and help build a healthy, skeptical data culture in our newsroom,” said David Eads, our data editor.

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

Biden wants an exception to the filibuster to codify abortion rights under federal law. The president said Congress must act swiftly to protect the rights of women seeking the procedure. The New York Times More: Internet searches for abortion medication soared after the leak of the U.S. Supreme Court ruling striking down Roe v. Wade. CNN Police and prosecutors will use an array of new technologies to try to get online access to the private, medical information of women seeking abortions. The Verge In the near-term, many people seeking abortions are likely to travel to states where the procedure is still available. The 19th What about women on probation or parole who want to get abortions but cannot cross state lines? Prison Policy Initiative

At least 46 people found dead in a trailer in San Antonio, Texas, on Monday evening. Police and immigration officials say they were migrants who were abandoned by smugglers and left without water in brutal heat. “This is nothing short of a horrific human tragedy,” said San Antonio Mayor Ron Nirenberg. The Associated Press One of the deadliest human smuggling episodes in recent history. Los Angeles Times “I am heartbroken by the tragic loss of life today,” said Homeland Security Department Secretary Alejandro Mayorkas. Twitter Texas Gov. Greg Abbott baselessly blamed President Joe Biden for the deaths. Houston Chronicle

“They’re not going to hurt me.” Former President Donald Trump angrily ordered U.S. Secret Service officials to make it easier for his armed right-wing supporters to storm the U.S. Capitol, a former White House aide testified on Tuesday. The Washington Post Trump also lashed out at one of his Secret Service agents when his security detail refused to drive him to the Capitol to bolster the coup attempt, Cassidy Hutchinson told lawmakers. The New York Times Who is Hutchinson? Slate More: Rudy Giuliani and former White House Chief of Staff Mark Meadows sought a pardon after the Capitol riot. USA Today

The justices undercut their landmark tribal ruling in Oklahoma. The U.S. Supreme Court ruled 5-4 on Wednesday that states share jurisdiction with the federal government to prosecute crimes by non-Native Americans against Native Americans on tribal lands. The New York Times The decision marks a retreat from a 2020 decision that recognized expansive tribal sovereignty over criminal cases and was marked by a clash between two conservative justices. CNN Related: Read the decision. U.S. Supreme Court TMP Context: The last time the justices weighed in on Oklahoma’s relationship with Native American tribes, they delivered a stinging defeat to state officials. The Marshall Project

Biden v. Texas ends with a win for Biden. The U.S. Supreme Court on Thursday allowed the Biden administration to end the controversial “Migrant Protection Protocols,” a Trump-era policy that required non-Mexican asylum seekers and other migrants to wait in Mexico while their U.S. immigration cases played out. The New York Times Chief Justice John Roberts sided with the Court’s three liberal members in acknowledging broad presidential discretion over immigration. The Washington Post Related: Read the decision. U.S. Supreme CourtTMP Context: Chaos in immigration courts after MPP invoked. The Marshall Project

Pickets promote acceptance in front of Independence Hall during the first Reminder Day on July 4, 1965. (New York Public Library)

Gay History – July 4, 1965: Philadelphia’s First Independence Hall Annual Reminder Protest

Click for report from the Encylcopedia of Greater Philadelphia

Click for report from Back 2 Stonewall

Commonwealth v. Thorne: PA Supreme Court holds that the Court’s sentencing jurisprudence (that challenges implicating the legality of sentence cannot be waived) applies equally to constitutional challenges to Revised Subchapter H of SORNA.

Click for Opinion by Justice Brobson.

Click for Dissenting Opinion by Chief Justice Baer.

The House and Senate return to session on June 27, 2022.

Bills Passed by House of Representatives

House Bill 2648 — State Inspector General to appoint special prosecutor for unemployment compensation fraud.  199-0.  Referred to Senate Labor and Industry Committee.

House Bill 1393Legalizing fentanyl test strips.  200-0.  Referred to Senate Judiciary Committee.

House Bill 3148Sexual Assault Testing and Evidence Collection Act.  200-0.  Referred to Senate Judiciary Committee.

House Bill 2527 — Immunity from criminal prosecution for administering opioid antagonist.  200-0.  Referred to Senate Judiciary Committee.

Bill Passed by Senate

Senate Bill 569Correctional and Forensic Employees Investigation Procedure Act.  48-2.  Referred to House Labor and Industry Committee.

Newly Introduced Bills

Representative Kristine Howard (D-Chester) has introduced House Bill 2705 which would broaden the eligibility for Protection From Abuse Orders.  Click for Co-Sponsorship Memorandum.

Representative Kristine Howard (D-Chester) has introduced House Bill 2688 establishing the Pennsylvania Firearms Buyback Program.  Click for Co-Sponsorship Memorandum.  The bill was referred to the House Judiciary Committee.

Representative Perry Warren (D-Bucks) has introduced House Bill 2687 providing for civil liability for firearm owner for loss or theft.  Click for Co-Sponsorship Memorandum.  The bill was referred to the House Judiciary Committee.

Click for Pennsylvania Bulletin for June 25, 2022.

(Sources: Websites of Supreme Court of Pennsylvania and Pennsylvania General Assembly)

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Introducing The Marshall Project – Cleveland. We’ve opened the first in a national network of local newsrooms that will cover criminal justice. Read this introductory letter from our Cleveland Editor-in-Chief Jim Crutchfield.

A victory for Louisiana’s incarcerated youth. State lawmakers have enacted new restrictions on the use of solitary confinement, following an investigation by TMP’s Beth Schwartzapfel, ProPublica’s Annie Waldman and NBC News’ Erin Einhorn. They found boys as young as 14 were spending weeks isolated in decrepit conditions, deprived of everything from mattresses to educational materials. Louisiana joins about one-third of states that restrict solitary confinement for youth.

People on parole can vote in Colorado. Earlier this year, TMP reported that Colorado officials had not updated voter registration forms to reflect a 2019 law restoring the right to vote for more than 11,000 people on parole. Now we’ve created a community resource with key information about voting rights in Colorado in Spanish and English. The visual explainer will be shared with community groups, reentry services, advocacy organizations and parole offices in Colorado, who intend to distribute it as a flier in print and online. In collaboration with The Colorado Sun, TMP’s Alexandra Arriaga, Andrew Rodriguez Calderón, Celina Fang, Bo-Won Keum, and Liset Cruz have our explainer, illustrated by artist Zeke Peña. En Español

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

Abortion is no longer a constitutional right in the U.S. The Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization sends regulation of abortion back to individual states, the culmination of a calculated, long-term legal challenge to Roe v. Wade. The New York Times About half of states will severely restrict or outright ban abortion, some immediately, others within weeks. Quartz Related: Read the ruling. Supreme Court

Concealed carry everywhere. In a Second Amendment case with wide-ranging implications, an ideologically divided Supreme Court overturned a New York law requiring people to demonstrate a need before getting a permit to carry a gun in public. Now, Americans officially have a Constitutional right to carry guns outside their homes, no matter what state they’re in. CNN The ruling expands upon the court’s controversial 2008 Heller decision, which first established an individual right to keep and bear arms. New York Times Related: Read the ruling (and the dissents). Supreme Court Also related: An amicus brief from a coalition of public defender groups argues in favor of overturning New York’s law, on racial equity grounds. Supreme Court

You have the right to remain silent, but no way to enforce it. Meanwhile, in a separate decision also split along ideological lines, the Supreme Court said that police officers who fail to read your Miranda rights before interrogating you are violating your Constitutional rights — but you can’t sue them for doing so. Reason “The majority here, as elsewhere, injures the right by denying the remedy,” Justice Elena Kagan wrote in a dissent. CNN

The blink of an eye. Most active shooter incidents end before the police arrive, according to an analysis of 433 attacks over the past ten years. In about half of all cases, the attacker either flees or dies by suicide, the research showed. About one-third of the time, the police either shoot or subdue the attacker. “It’s direct, indisputable, empirical evidence that this kind of common claim that ‘the only thing that stops a bad guy with the gun is a good guy with the gun’ is wrong,” said one expert. The New York Times

“Guns 4 Ukraine.” It’s not uncommon for police departments to offer cash for guns, as part of an effort to get them off the streets with “no questions asked.” Less common is the final destination of the guns that Miami police are collecting: the front lines in Ukraine. The Washington Post

Getting out, graduating, breaking the cycle. NPR’s Elissa Nadworny followed two men as they were released from prison with almost enough credits to graduate from the prestigious Pitzer College after participating in a prison college program. They moved directly from prison to the bucolic California campus to complete their degrees. NPR It’s part of a series exploring the implications of Pell grants becoming available to prisoners for the first time since 1994. NPR

CRIMINAL JUSTICE DECISIONS FROM SUPREME COURT OF THE UNITED STATES

OPINION ANALYSIS
In 6-3 ruling, court strikes down New York’s concealed-carry law

By Amy Howe, SCOTUSblog, updated June 23, 2022, 4:06 p.m.

The Supreme Court on Thursday struck down a New York handgun-licensing law that required New Yorkers who want to carry a handgun in public to show a special need to defend themselves.

The 6-3 ruling, written by Justice Clarence Thomas, is the court’s first significant decision on gun rights in over a decade. In a far-reaching ruling, the court made clear that the Second Amendment’s guarantee of the right “to keep and bear arms” protects a broad right to carry a handgun outside the home for self-defense. Going forward, Thomas explained, courts should uphold gun restrictions only if there is a tradition of such regulation in U.S. history.

Click for rest of report.

OPINION ANALYSIS
A small, procedural win for prisoners challenging a state’s method of execution

By Lee Kovarsky, SCOTUSblog, June 23, 2022

On Thursday, a divided Supreme Court held that prisoners making Eighth Amendment challenges to a state’s execution method can proceed under 42 U.S.C. § 1983; they are not forced into federal habeas litigation that is procedurally doomed. Nance v. Ward was a 5-4 decision, with an opinion authored by Justice Elena Kagan and joined by Chief Justice John Roberts, as well as Justices Stephen Breyer, Sonia Sotomayor, and Brett Kavanaugh. For many state prisoners, had the court decided the case the other way, even timely and meritorious Eighth Amendment claims would trigger no federal remedy.

Some background on the case is in order. Challenges to sentence implementation often go through 42 U.S.C. § 1983, but claims that necessarily imply the invalidity of a conviction or sentence are said to be “Heck-barred” and must be diverted to the federal habeas channel. The logic is that prisoners who want to argue that they are unlawfully confined — the core function of the federal habeas privilege — cannot avoid the federal habeas restrictions simply by styling the challenge as a Section 1983 claim. (A Section 1983 claim alleges a constitutional violation by a state official.)

Click for rest of report.

OPINION ANALYSIS
A ruling that curtails the All Writs Act in habeas proceedings will be felt by state prisoners and federal courts

By Mridula Raman, SCOTUSblog, June 24, 2022

The Supreme Court in Shoop v. Twyford continued its sustained assault on efforts by prisoners to challenge their state-court convictions and sentences in federal court. In Tuesday’s 5-4 decision, the justices limited the ability of federal courts to use the All Writs Act to order states to transport prisoners, even when such transport could help prisoners investigate whether their convictions are unconstitutional. While the court’s decision plainly affects prisoners seeking relief in federal court, it may also affect the functioning of federal courts in diverse contexts.

As background, the federal district court in this case relied on the All Writs Act to order Ohio prison warden Tim Shoop to transport state death-row prisoner Raymond Twyford to a medical facility for neuroimaging. Twyford sought information that could support his habeas corpus proceedings, i.e., his challenge to his state-court conviction and death sentence. He pointed to the presence of bullet fragments lodged in his head from a self-inflicted gunshot wound, among other circumstances, to justify the imaging. The warden immediately appealed the district court’s transport order, and the U.S. Court of Appeals for the 6th Circuit affirmed. The Supreme Court took the case to consider whether and when federal courts may employ the All Writs Act in habeas corpus proceedings.

Click for rest of report.

June 29, 1972. Supreme Court strikes down death penalty in Furman v. Georgia.

Click for report from history.com.

Juneteenth

The House and Senate return to session on June 20.

The House Judiciary Committee meets June 21 at 9 a.m. to consider House Bill 717 (prohibit sale of assault weapons to persons under the age of 21 with exceptions).

Click for full schedule of House Committee meetings.

Click for full schedule of Senate Committee meetings.

On June 14, the Senate passed Senate Bill 1208 the use of debit cards to pay court costs, fines and restitution by a vote of 49-0.  The bill was referred to the House Judiciary Committee.

Newly Introduced Bills

Representative Melissa Shusterman (D-Chester, Montgomery) has introduced two firearms bills:

House Bill 2681—- Co-Sponsorship Memorandum is entitled Raising the Age to Purchase a Semi-Automatic Assault Rifle to 21. The bill was referred to the House Judiciary Committee.

House Bill 2680 —- Co-Sponsorship Memorandum is entitled Semi-Automatic Assault Rifle Training & Certification. The bill was referred to the House Judiciary Committee.

Representative Perry Warren (D-Bucks) has introduced House Bill 2687 to provide for civil liability for firearm owner for loss or theft.

Co-Sponsorship Memoranda

Ending the charging of children as adults in criminal prosecutions  (issued by 12 House Democratic members)

Permitting school employees to carry firearms in school. Issued by Representative Aaron Bernstine (R-Lawrence, Beaver, Butler)

Click for Pennsylvania Bulletin for June 18, 2022.

(Source of website of Pennsylvania General Assembly).

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“I grew up with redemption and forgiveness.” Carol Shapiro first visited a jail when she was 16. She has spent the five decades since working as an official, expert and advocate in and around corrections systems. She joined the New York Board of Parole five years ago, but quickly realized she could not do much to change its systemic problems. “I started to call what we were doing ‘conveyor belt justice,’ because you’d be busy preparing to lead the next interview instead of watching and listening closely to the one taking place. Then you might be writing an opinion during the next interview,” Shapiro told TMP’s Beth Schwartzapfel for the latest in our “Life Inside” series.

No place for a child. One of every three migrants held in overcrowded, freezing Border Patrol detention cells between February 2017 to June 2021 was a minor — far more than previously known, according to a new data analysis by The Marshall Project. About one-third of these children were detained for longer than 72 hours, a violation of legal limits. But border authorities have repeatedly failed to improve conditions for the children or change punitive practices that traumatize them. In collaboration with Politico Magazine, TMP’s Anna Flagg and Julia Preston have our story, with photographs by Kristen Luce.

It’s 2022. And national crime data is getting less reliable. Nearly 40% of police agencies in the U.S. did not successfully submit any data in 2021 to the FBI’s revised crime statistics collection program. It’s a large jump from past years. Police departments in New York City and Los Angeles did not submit data. Most law enforcement agencies in five of the six largest states didn’t, either. “The data gap will make it harder to analyze crime trends and fact-check claims politicians make about crime,” writes TMP’s Weihua Li in a new data dive about a historic crime reporting problem that experts say is likely to persist for years.

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

Federal hate crimes charges for the Buffalo gunman. Federal prosecutors charged 18-year-old Payton Gendron with 26 counts of hate crimes and weapons violations on Wednesday, making the avowed white supremacist eligible for the federal death penalty. The complaint offered chilling new details of the massacre. Buffalo News At one point during the shooting spree, authorities say, Gendron apologized to a White victim but did not kill him. Poughkeepsie Journal U.S. Attorney General Merrick Garland visited Buffalo on Wednesday to meet some of the victims’ families and survivors of the attack. The New York Times

A new report on the over-incarceration of adults and youth who identify as LGBTQ+. “LGBTQ+ adults are incarcerated at three times the rate of the total adult population. LGBTQ+ youth’s representation among the incarcerated population is double their share of the general population.” The Sentencing Project

Forty feet from disaster. The angry mob that stormed the Capitol shouting “Hang Mike Pence” came within 40 feet of the vice president last Jan. 6. The New York Times Former President Donald Trump was repeatedly told — before, during, and after the Capitol riot — that his effort to overturn the 2020 election was unlawful. The Washington Post Related: Congressional investigators now say they’ll ask Ginni Thomas, the wife of U.S. Supreme Court Justice Clarence Thomas, to answer questions about her documented role in the insurrection. Politico Finally: How to avoid the next coup, in 2024. The New Republic

“Google makes money while looking the other way.” For decades, Google executives have claimed they don’t accept gun ads. But they do accept them, through partner exchanges that allow gun companies and websites to benefit from Google’s systems while the company gets a cut of every ad. And there are millions of online ads relentlessly hawking assault rifles and other weapons. In the month or so surrounding the mass shootings in New York and Texas, 15 of the largest firearm sellers used and paid for Google systems that generated 120 million online impressions. ProPublica

Not-so-happy anniversary for the “Dreamers.” The Deferred Action for Childhood Arrivals (DACA) program began 10 years ago under the Obama administration. It was supposed to be a temporary fix, to give young undocumented immigrants some security about their daily lives. The Washington Post But no permanent legislative solution has appeared and none looks likely soon. That means a majority of undocumented teenagers are graduating from high school this year without any protection from deportation. The New York Times There are more than 100,000 young immigrants without DACA protection. Los Angeles Times

A model to emulate? Officials in Houston have been extraordinarily successful in reducing the city’s homeless population. They’ve done it by providing permanent housing for tens of thousands of people without homes. The New York Times

A new report updates us on the status of prison labor. “More than three quarters of incarcerated workers surveyed (76%) report facing punishment — such as solitary confinement, denial of sentence reductions, or loss of family visitation — if they decline or are unable to work.” Sentencing Law and Policy Related: Read the report. ACLU

PETITIONS OF THE WEEK

By Kalvis GOLDE, SCOTUSblog, June 17, 2022. Criminal justice cases only.

Elhady v. Bradley
21-1492
Issues(1) Whether, in an interlocutory appeal from the denial of qualified immunity, a court of appeals always has jurisdiction under 28 U.S.C. § 1291 to decide whether a remedy exists under Bivens v. Six Unknown Federal Narcotics Agents for the claim against which the appellant asserts qualified immunity; and (2) whether Bivens claims are categorically precluded at the border, even when the plaintiff is a U.S. citizen who challenges mistreatment on U.S. soil by federal law-enforcement officers performing traditional law-enforcement duties.

Twitter, Inc. v. Taamneh
21-1496
Issues: (1) Whether a defendant that provides generic, widely available services to all its numerous users and “regularly” works to detect and prevent terrorists from using those services “knowingly” provided substantial assistance under 18 U.S.C. § 2333 merely because it allegedly could have taken more “meaningful” or “aggressive” action to prevent such use; and (2) whether a defendant whose generic, widely available services were not used in connection with the specific “act of international terrorism” that injured the plaintiff may be liable for aiding and abetting under Section 2333.

Torcivia v. Suffolk County, New York
21-1522
Issues: (1) Whether a so-called “special-needs exception” to the Fourth Amendment exists and allows warrantless entry into the home of someone who is not subject to penal control or supervision; and (2) whether the court should overrule the judge-made qualified immunity doctrine as to non-police state actors.

Posted in FeaturedCases in the Pipeline

Cases: Elhady v. BradleyTwitter, Inc. v. TaamnehCostello v. CarterTorcivia v. Suffolk County, New York

Recommended Citation: Kalvis Golde, Pennsylvania’s congressional map returns to the court, SCOTUSblog (Jun. 17, 2022, 5:24 PM), https://www.scotusblog.com/2022/06/pennsylvanias-congressional-map-returns-to-the-court/

June 24, 1497. John Cabot, sailing for England, makes landfall in North America.

Click for details from history.com.

The House and Senate return to session on June 13.

Representative Greg Rothman (R-Cumberland) has introduced House Bill 2642 concerning sentencing for first degree murder.  Click for Co-Sponsorship Memorandum.    The bill would add an additional aggravated circumstance as to killings at schools, colleges, professional sports facilities, places of worship and government offices.  The bill was referred to the House Judiciary Committee.

The House Judiciary Committee meets at 10 a.m. on June 13 to consider the following bills:

House Bill 699 Safe storage of firearms when not in use. Click for Co-Sponsorship Memorandum.

House Bill 770 Certain assault weapons prohibited. Click for Co-Sponsorship Memorandum.

House Bill 1538 Local regulation of firearms and ammunition. Click for Co-Sponsorship Memorandum.

House Bill 1903 Extreme Risk Protection Orders. Click for Co-Sponsorship Memorandum.

Senate Bill 708 Amend Crime Victims Act. Click for Co-Sponsorship Memorandum.

Senate Bill 1040 Amend Crime Victims Act. Click for Co-Sponsorship Memorandum.

Senate Bill 1179 Victims of sex crimes. Click for Co-Sponsorship Memorandum.

Last week the House passed bills to modify the fireworks law (House Bill 2157) and remove homosexuality from the crimes code (House Bill 2125). Both bills move to the Senate.

Click for Pennsylvania Bulletin for June 11, 2022.

(Source: Website of the Pennsylvania General Assembly, Dentons, Cohen and Grigsby Weekly Recap)

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The “foul-mouthed pagan lesbian” who inspired a prison memoir. Susan Begg had a constructive suggestion for the young woman with whom she shared a cellblock and many crossword puzzles in a New York jail a decade ago. “Start journaling your experiences,” Begg said. “At the least, it’s too weird not to write down.” Her friend, Keri Blakinger, wisely took that advice and started chronicling her confinement. This week, Blakinger’s memoir, “Corrections in Ink,” was published to rave reviews. Sadly, Begg passed away in 2019, before she could see the manifestation of her advice. Blakinger’s tribute to Begg is the latest in our “Life Inside” series.

A Tupperware of heroin on the streets of Ithaca. Before she became a reporter chronicling the harsh world of prisons and jails as a staff writer for The Marshall Project, Keri Blakinger was a young woman with a major drug problem. In this excerpt from Blakinger’s new memoir, “Corrections in Ink,” she recounts the day in 2010 when she encountered a police officer in upstate New York. “I decide to make this arrest as painless as possible,” Blakinger writes. “I take out the coke with my left hand and as I’m handing it over, I take my right hand and pop the pills into my mouth and swallow them all dry.”

Prison tourism inches away from the “spooky, the gruesome and the salacious.” For decades, prison museums have relied on sensationalism, offering patrons a chance to pose for photos in old gas chambers or sit in a defunct electric chair. But change is afoot. Some prison museums are focusing more on educating visitors about prison life and less on encouraging guests to undermine the dignity of prisoners. In collaboration with Mother Jones, Hope Corrigan has our story. TMP Context: Turning prisons into haunted houses. The Marshall Project

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

An unsparing look at the insurrection. A House select committee opened historic hearings Thursday night with a cogent display of evidence linking former President Donald Trump and far-right extremist allies to the violent attempt to overthrow the results of the 2020 election. The Washington Post Graphic video and stark testimony detail a coup conspiracy. The New York Times “There were officers on the ground. They were bleeding. I was slipping in people’s blood. It was carnage,” Capitol Police officer Caroline Edwards testified. The Associated Press Some Republican lawmakers sought pardons from Trump following the insurrection. Politico A rare detour from tired Washington political theater. Los Angeles Times

The unrepentant. The consolidation of right-wing extremism has accelerated since the Jan. 6 Capitol riot and insurrection, experts say. Some groups have actually increased in membership. Not only have riot defendants connected with one another as they await their trials in Washington, D.C. — beyond bars, there is broader coordination among groups espousing political violence. The New Yorker Five Proud Boys members, including leader Henry “Enrique” Tarrio, now face new seditious conspiracy charges. The Washington Post Related: Fired from the White House and held in contempt by Congress, former Trump aide Steve Bannon is still a threat to American democracy, writes Jennifer Senior. The Atlantic

Federal officials plan to transfer migrants and others who are waiting for their immigration cases to conclude into the interior of the U.S. The plan is to ease crowds at border crossings in Arizona, California and Texas by sending asylum-seekers to cities like Los Angeles, Albuquerque, Houston and Dallas. NBC News More: Trump administration officials took extra steps to ensure that migrant children were separated longer from their parents, newly-disclosed emails reveal. Families separated during that period have filed at least 20 lawsuits seeking millions in damages from the federal government. The Washington Post

Simone Biles and 90 other gymnasts sue the FBI for failing to stop Larry Nassar from preying on his sexual assault victims. The civil lawsuit seeks $1 billion in damages. The Associated Press

Police reform lives in San Francisco. Like other cities around the country, San Francisco has its own health-crisis response team, modeled after the program pioneered years ago in Oregon. The dispatch team responds to episodes involving unarmed people who are homeless or in the throes of mental illness or drug addiction. Officials say the program is a big success. But one hurdle remains: Many Black residents won’t call 911 for help, fearing an armed police response. Mother Jones TMP Context: Olympia, Washington, the city that stopped sending the police to every 911 dispatch call. The Marshall Project

CRIMINAL JUSTICE PETITIONS OF THE WEEK

By Kalvis Golde
SCOTUSblog, June 10, 2022 at 6:06 pm

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Can a police officer rummage through your purse if they find you in someone else’s home that they have a warrant to search? And if your purse contains suspicious amounts of allegedly state-licensed medical marijuana, can federal authorities prosecute you for possession of a controlled substance? This week we highlight petitions asking the Supreme Court to consider, among other things, similar issues in two very different drug-related prosecutions.

Police in Mobile, Alabama, obtained a warrant to search a home, its owner, and a long list of objects (not including purses) because the home’s owner sold methamphetamine to a confidential informant. Upon arriving at the home, police found Nancy Powers asleep on the living room couch and the home’s owner and others asleep in various bedrooms. An officer noticed a purse beside the couch and, after confirming it belonged to Powers, searched it and found a bag containing $800 of powdered meth and a scale. Powers was arrested and convicted of intent to distribute and possession of meth. In Powers v. Alabama, she asks the court to decide whether, because neither she as an individual nor purses as an object were listed in the warrant, the officer’s search of her purse lacked probable cause and thus was “unreasonable” in violation of the Fourth Amendment.

Since 2015 Congress has attached a rider to its appropriations bills barring the Department of Justice from using funds “to prevent [states] from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Brian Bilodeau ran a series of marijuana grow-sites in Maine, which has a legal medical marijuana industry. After an extensive two-year investigation, federal narcotics officers entered Bilodeau’s sites, took samples of evidence they claimed was indicative of a black-market drug operation, destroyed the rest of the supply, and charged Bilodeau with knowing and intentional manufacture and possession of marijuana. In Bilodeau v. United States, the question for the court is whether Bilodeau’s subsequent prosecution by DOJ qualifies as the type of prosecution Congress intended to prohibit via the appropriations rider.

Powers v. Alabama
21-1486
Issue: Whether the search of a purse in the possession of a visitor present at a residence during the execution of a premises warrant violates the Fourth Amendment.

Bilodeau v. United States
21-1487
Issue: Whether and under what circumstances the rider to Congress’ 2019 appropriations bill – which provides that none of the funds made available to the Department of Justice may be used with respect to Maine and other states to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana – prohibits the DOJ from spending federal funds to prosecute criminal defendants for medical marijuana-related offenses.

City of Kent, Washington v. Jacobo-Hernandez
21-1491
Issue: Whether the excessive fines clause of the Eighth Amendment provides a livelihood preservation protection which can prevent the forfeiture of the instrumentality of a felony.

Posted in FeaturedCases in the Pipeline

Cases: City of Kent, Washington v. Jacobo-HernandezPowers v. AlabamaBilodeau v. United States

Recommended Citation: Kalvis Golde, Medical marijuana money and purses without probable cause, SCOTUSblog (Jun. 10, 2022, 6:06 PM), https://www.scotusblog.com/2022/06/medical-marijuana-money-and-purses-without-probable-cause/

Scene from 1944 film “Laura” Information on film from IMDb

June 13, 1966. Miranda rights established. Click for details from history.com.

July 5 is deadline to comment on proposed Criminal Rule 523.1 concerning pre-trial detention of minor defendant. Click for report and text.

The House returns to session on June 7. The Senate returns to session on June 6.

The Senate Judiciary Committee meets on June 7 at 11:30 a.m. to consider the following bills:

Senate Bill 691 creating new Common Pleas judgships for 20th (Huntingdon) and 26th (Columbia) Judicial Districts.

Senate Bill 1208 providing for payment of court costs, restitution and fines and for collection of court cost, restitutions and fines by private collection agency.

Senate Bill 1226 expungement of juvenile records.

Senate Bill 1228 disposition review hearings in Juvenile Court.

Click to livestream.

Newly Introduced Bills

Representative Greg Rothman (R-Cumberland) has introduced House Bill 2642 concerning sentencing procedures for first degree murder.  Click for Co-Sponsorship Memorandum.

Senator Art Haywood (D-Montgomery, Philadelphia) has introduced Senate Bill 1253 concerning licenses to carry firearms.  Click for Co-Sponsorship Memorandum.  The bill was referred to the Senate Judiciary Committee.

(Source: Pennsylvania General Assembly website).

Click for Pennsylvania Bulletin of June 4, 2022.

THE BEST OF THE MARSHALL PROJECT

The newest federal prison has become one of the deadliest. Illinois officials opened the Thomson prison in 2001, but it sat idle for years before the federal government purchased and retrofitted it. The Bureau of Prisons then moved people who had been incarcerated in the notorious Special Management Unit at the federal penitentiary in Lewisburg, Pennsylvania to Thomson. But now Thomson has severe staffing and violence problems, too. There have been five suspected homicides and two alleged suicides there since 2019. TMP’s Christie Thompson and Joseph Shapiro of NPR have our story. More: Five things to know about USP Thomson. The Marshall Project

USP Thomson draws congressional attention. Sens. Dick Durbin and Tammy Duckworth, and Rep. Cheri Bustos, three Democrats representing Illinois, asked Justice Department Inspector General Michael Horowitz on Thursday to open an investigation into violence and abuse at the Thomson prison. Amid staff shortages and “double-celling” of prisoners, several prisoners have been killed or died by suicide since the Bureau of Prisons opened the federal penitentiary a few years ago.

Your questions, and our answers, about the court system in Cleveland. Anyone with access to the internet can look up felony court cases in Cleveland and Cuyahoga County. But understanding how case outcomes may vary by judge or where defendants lived before their arrests is impossible without examining all the cases together. The court doesn’t release that data publicly, so The Marshall Project scraped it. Now, you can get answers to fundamental questions about the court, ask your own questions, and download the data. Here’s more of our ongoing coverage of Cleveland’s judicial systems, developed and maintained by TMP’s Rachel Dissell, Ilica Mahajan, Anna Flagg, and Katie Park.

THE BEST OF THE REST

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

Another mass shooting, in Tulsa, claims at least four victims. The suspect, who died by suicide, has not yet been identified. He was armed with a rifle and handgun when he entered a medical building and began shooting. Tulsa World More: There are other gun rights groups besides the National Rifle Association that are spending millions on lobbying efforts to steer gun policy in the U.S. USA Today The rise in mass shootings reignites a debate over guns and mental health. But experts say that most violent acts are committed by people with no confirmed mental illness. The Wall Street Journal

It’s not just you. Psychologists say that more and more Americans are suffering from the trauma of repeated mass shootings. The Washington Post

A lethal, accessible weapon. It’s easy to buy the rifle used by the Texas gunman and many other recent mass murderers. Quartz Teenagers in 44 states can buy semi-automatic weapons. The Trace Analysis: How the AR-15 rifle became so popular. The Washington Post Texans are divided about the need for stricter gun laws. That division is not reflected in the state’s loose gun laws. Politico The growing popularity and use of body armor is making mass shootings more deadly. New York Magazine More: Sen. Mitch McConnell’s decades-long effort to thwart gun control. The Washington Post

There are fewer unauthorized immigrants in California these days. That’s causing problems for the state’s massive agriculture industry, which has relied for centuries on cheap, human labor. The New York Times

The real world and “The Wire”: A rare look at a jury’s work in a high-profile case. When journalist and author Alec MacGillis became the foreperson of a Baltimore jury in an attempted-murder case, his public service as a juror coincided with his professional interest in reporting in gun violence. By chance, he was at the center of a case in which the victim of gun violence was Chris Clanton, an actor on “The Wire,” the epic television series about Baltimore crime, and now on “We Own This City,” a new HBO miniseries on police corruption in the city. ProPublica TMP Context: David Simon on Baltimore’s anguish. The Marshall Project

Remembering the Women’s House of Detention in New York City. It operated in Greenwich Village from 1932 to 1974 and played a profound role in the fight for LGBTQ rights, reports Hugh Ryan, the author of a book on the topic. WNYC

“I didn’t forget you, Harvey. My body didn’t forget you. I wish it could.” Hollywood mogul Harvey Weinstein spent his last months as a free man laboring under the delusion that he could still control the narrative surrounding the sexual assault allegations against him. He chewed through defense attorneys, tried to spin the media, and hoped that past campaign contributions would help stave off civil and criminal cases against him. The New Yorker A New York appeals court affirmed Weinstein’s conviction on Thursday. The Associated Press TMP Context: When prisoners say #MeToo. The Marshall Project

PETITIONS OF THE WEEK by ANDREW HAMM

(Petitions not involving criminal justice are omitted).

In Turkiye Halk Bankasi A.S. v. United States, a Turkish bank asks the justices to review its claim for protection from criminal prosecution. In its petition, Halkbank describes itself as a bank majority-owned by Turkey that the U.S. government has not disputed is Turkey for jurisdictional purposes. Federal prosecutors indicted Halkbank in a scheme, the government alleges, to “create a pool of Iranian oil funds in Turkey and the United Arab Emirates.” The U.S. Court of Appeals for the 2nd Circuit affirmed the district court’s denial of Halkbank’s motion to dismiss on the ground that the federal court had jurisdiction over the foreign sovereign under the general criminal statute, which gives the district courts jurisdiction over “all offenses against the laws of the United States.” In contrast, according to Halkbank’s petition, the U.S. Court of Appeals for the 6th Circuit has ruled that because the Foreign Sovereign Immunities Act only grants the district courts jurisdiction over foreign sovereigns in civil cases, the district courts lack such jurisdiction in criminal cases. 

Turkiye Halk Bankasi A.S. v. United States
21-1450
Issue: Whether U.S. district courts may exercise subject-matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of the Foreign Sovereign Immunities Act.

Johnson v. Winfrey
21-1466
Issues: (1) Whether a law enforcement officer violates clearly established law under the Supreme Court’s decision in Franks v. Delaware if the officer does not include information in an affidavit that may be material to probable cause, without regard to whether an objective officer could reasonably believe the submitted affidavit supported probable cause; (2) if not, whether Malley v. Briggs provides the appropriate analytical method for determining an officer’s immunity when information that may be material to probable cause is not included in the affidavit, or whether a different standard applies; and (3) whether setoff or contribution is available in a claim brought under 42 U.S.C. § 1983 as six circuits have held, or whether Section 1983 claims permit a plaintiff to obtain a double recovery, as three circuits have held.

Recommended Citation: Andrew Hamm, The return of the vaccine mandate for health workers and sovereign immunity for a Turkish bank, SCOTUSblog (Jun. 3, 2022, 5:07 PM), https://www.scotusblog.com/2022/06/the-return-of-the-vaccine-mandate-for-health-workers-and-sovereign-immunity-for-a-turkish-bank/

June 6, 1944. D-Day. Click for report from history.com.

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