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

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Supreme Court amends Juvenile Rules 515, 610, 612, and 632

Click for Amended Rules.

Click for Report.

Click for Order.

LEGISLATIVE UPDATE

The House and Senate meet October 25, 26 and 27.

Senate Bill 913, concerning comprehensive probation reform was introduced on October 18.  In a memorandum to their colleagues, Senators Lisa Baker (R-Luzerne, Pike, Susquehanna, Wayne, Wyoming), Camera Bartolotta (R-Beaver, Greene, Washington), and Anthony Williams (D-Philadelphia) explained that the bill would “minimize punishments for technical violations of probation and allow judges to shorten probation time for good behavior or for completing certain programs.”  The bill was referred to the Senate Judiciary Committee.  

House Bill 2005, which would require law enforcement agencies to record “a complete and contemporaneous recording of each custodial interrogation relating to the investigation of all offenses, including any attempt, solicitation or conspiracy to commit an offense.” In a memorandum to her colleagues, Representative Liz Hanbidge (D-Montgomery) wrote that the bill”would ensure that individuals’ rights are safeguarded during an interrogation, while also protecting our police officers from false allegations of misconduct. My bill would also create a grant program for police departments that do not have the funding to purchase the necessary recording equipment and/or to train personnel in the use of the equipment to ensure that all of our law enforcement agencies are following best practices.

The bill was introduced on October 21 and referred to the House Judiciary Committee.

Click for Pennsylvania Bulletin – October 23, 2021

THE BEST OF THE MARSHALL PROJECT

“Comfort with closeness is all we’re really teaching.” Police officials are pushing cops to train in jiu-jitsu to avoid resorting to excessive force when trying to subdue suspects. What police consider an option to de-escalate potentially deadly situations is a trend that started in Marietta, Georgia, and has spread to other departments around the country. Civil rights advocates and others worry that training officers in martial arts will just encourage cops to be more confrontational when dealing with civilians.

“Where I’m meant to be.” Sentenced to life in prison plus 30 years as a teenager, Fred Weatherspoon never expected to live free. But he was released from prison in 2018, at 42, and now he’s back in Chicago mentoring young people at a local nonprofit. Weatherspoon says he’s mostly hopeful when he sees the promise in the kids he helps. He also sees the peril that surrounds them. “I worry that they don’t understand that what happened to me — and other people in our community — can happen to them,” Weatherspoon said.

THE BEST OF THE REST

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

Don Miller spent 60 years amassing a collection of over 40,000 rare artifacts from around the world that he kept on his property in Indiana. He considered himself an amateur archaeologist, and believed he was doing a service to the preservation of culture and human history. But when the FBI showed up, they found the remains of hundreds of people, stolen artifacts and remnants of sacred sites here in the United States, all illegally obtained. It all amounted to the largest seizure and repatriation of stolen artifacts in U.S. history. — Andrew R. Calderon, data reporter

scotusblog.com

SUPREME COURT NEWS: Court adds two cases on Native American law and issues two opinions granting police officers qualified immunity

By AMY HOWE, Scotusblog, October 18, 2021

The Supreme Court on Monday morning added two new cases, both involving Native Americans, to its docket for this term. The justices also issued two unsigned decisions holding, without oral argument, that police officers are entitled to qualified immunity from lawsuits accusing them of using excessive force. The justices, however, did not act on several of the high-profile petitions that they considered at their private conference last week.

Two new grants on Native American sovereignty

In Denezpi v. United States, the justices agreed to consider whether a prosecution in the Court of Indian Offenses can trigger the Constitution’s double jeopardy clause. The Court of Indian Offenses is a trial court that operates in areas where tribes have jurisdiction over Native Americans, but where there are not tribal courts to fully exercise that jurisdiction. The question is whether the court constitutes a “federal agency” so that a conviction in that court bars a later prosecution in a federal district court for a crime arising out of the same incident. Merle Denezpi, a member of the Navajo tribe, pleaded guilty in the Court of Indian Offenses to an assault charge in 2017. Six months later, a federal grand jury in the U.S. District Court of the District of Colorado indicted Denezpi on a charge of aggravated sexual assault in Indian country based on the same underlying events. He was found guilty and sentenced to 30 years in prison.

Denezpi contends that his prosecution in federal court violated the Constitution’s ban on double jeopardy, which prohibits more than one prosecution for the “same offence.” Under a line of cases known as the dual-sovereignty doctrine, a crime under the laws of one sovereign is not the “same offence” as a crime under the laws of a second sovereign. Denezpi argues that the dual-sovereignty doctrine does not apply because the Court of Indian Offenses is a federal agency. The government, which views the court as a tribunal exercising the powers of a Native American tribe, says the dual-sovereignty doctrine permits the subsequent prosecution. The justices will hear oral argument next year, with a decision expected by summer.

In Ysleta del Sur Pueblo v. Texas, the justices will weigh in on a dispute over the application of state standards to tribal gaming operations on Native American land. The case involves a federal law that bars on tribal lands any gaming activities “prohibited by the laws of the State of Texas.” The question is whether the law prohibits any kind of gambling that is banned under state law, or whether it goes further and also prohibits any gaming that the state regulates. The Biden administration recommended that the justices grant review, which the justices did on Monday.

Two summary rulings on qualified immunity

The justices also issued two unsigned opinions in which they summarily – that is, without briefing on the merits or oral argument – reversed rulings by federal courts of appeals holding that police officers were not entitled to qualified immunity in lawsuits accusing them of using excessive force. The court’s opinion in Rivas-Villegas v. Cortesluna arose from a 2016 phone call by a 12-year-old girl reporting that Ramon Cortesluna, her mother’s boyfriend, had a chainsaw and was going to attack them. When Cortesluna came out of the house and – after being told not to – put his hands down, one police officer shot him twice. Officer Daniel Rivas-Villegas pushed him onto the ground and pressed his knee against Cortesluna’s back so that a colleague could handcuff him.

Cortesluna filed a federal civil rights lawsuit against the officers, arguing that they had used excessive force against him. A federal trial court concluded that the force used by both officers was reasonable and that the officers were entitled to qualified immunity. On appeal, the U.S. Court of Appeals for the 9th Circuit upheld that conclusion with regard to the officer who fired the shots, but reversed as to Rivas-Villegas. Because it was clearly established, the panel majority reasoned, that it was excessive force for a police officer to press his knee into the back of a suspect lying face down on the ground, hard enough to cause an injury, Rivas-Villegas was not entitled to qualified immunity.

Rivas-Villegas came to the Supreme Court last April, asking the justices to weigh in. In a six-page opinion, the justices reversed the 9th Circuit’s ruling. They emphasized that an official is entitled to qualified immunity when his conduct does not violate clearly established rights, and he would have been aware of those rights. Even if cases in the courts of appeals can qualify as “clearly established” law, the justices continued, the facts of the case on which the 9th Circuit relied were too different from the facts of this case for Rivas-Villegas to be “on notice that his specific conduct was unlawful.”

The court’s second unsigned opinion on Monday — in City of Tahlequah v. Bond — stemmed from a case filed by the estate of Dominic Rollice, a registered sex offender whom police officers were trying to remove from his ex-wife’s home. When asked to drop a clawed hammer, Rollice did not do so, prompting officers to fire at him and kill him. A federal district judge ruled that the officers’ use of force was reasonable and that the officers were entitled to qualified immunity.

The U.S. Court of Appeals for the 10th Circuit reversed. It ruled both that the officers’ conduct created the situation that led to the shooting, so that their use of force was unconstitutional even if it was reasonable at the moment it was employed. Moreover, the court of appeals concluded, the officers were not entitled to qualified immunity.

The city and the officers came to the Supreme Court in May, and on Monday the justices reversed. The justices explained that they did not need to decide whether the officers’ use of force was unconstitutional because the officers “plainly did not violate any clearly established law.” “Not one of the decisions” on which the 10th Circuit relied, the court stressed, “comes close to establishing that the officers’ conduct was unlawful.”

There were no dissents noted from either of Monday’s summary reversals.

Click for more Supreme Court news.

Recommended Citation: Amy Howe, Court adds two cases on Native American law and issues two opinions granting police officers qualified immunity, SCOTUSblog (Oct. 18, 2021, 12:39 PM), https://www.scotusblog.com/2021/10/court-adds-two-cases-on-native-american-law-and-issues-two-opinions-granting-police-officers-qualified-immunity/

PETITIONS OF THE WEEK: Texting in car, surveillance of a home, Section 1983 for Miranda

By ANDREW HAMM

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether officers who observe a driver using a cellphone have reasonable suspicion to pull the driver over for texting, whether agents’ around-the-clock video surveillance of a home for 18 months is a “search,” and whether a plaintiff may sue a police officer for questioning without giving Miranda warnings.

Iowa and other states prohibit texting while driving but allow cellphone usage for other purposes, such as navigation. In Steven Struve’s case, Struve v. Iowa, police officers pulled Struve over after observing Struve using a cellphone – for an unidentifiable reason – for 10 seconds while driving. The traffic stop led to Struve’s arrest for having methamphetamine in the backseat. Struve, who was never charged with violating Iowa’s texting-while-driving law, was convicted for possessing a controlled substance. Before trial, the district court rejected Struve’s argument that the officers had violated the Fourth Amendment in pulling him over without reasonable suspicion because they could not tell whether he was texting or using his cellphone legally. The Iowa Supreme Court ruled that the officers’ “common sense” inference that Struve was texting provided reasonable suspicion for the traffic stop. In his petition, Struve argues that the Iowa Supreme Court adopted a minority, and incorrect, position among states with similar laws.

In another Fourth Amendment case, Tuggle v. United States, Travis Tuggle claims that federal agents – without a warrant – maintained around-the-clock video surveillance of his home for 18 months. Tuggle asks the justices to rule that this conduct constituted a “search” under the Fourth Amendment and that the Constitution required the agents to get a warrant. In the decision below, the U.S. Court of Appeals for the 7th Circuit ruled that the surveillance was not a search because Tuggle lacked a reasonable expectation of privacy in his movements that were observable to any ordinary passerby. In his petition, Tuggle argues that the U.S. Court of Appeals for the 5th Circuit and the Colorado and South Dakota Supreme Courts have considered such long-term surveillance a “search” because it infringes expectation of privacy that society is prepared to recognize as reasonable.

Vega v. Tekoh concerns a plaintiff’s ability to bring a lawsuit for a constitutional violation under 42 U.S.C. § 1983 after a plaintiff is questioned without having been advised of constitutional rights under Miranda v. Arizona. Carlos Vega, a sheriff’s deputy in Los Angeles County, questioned Terence Tekoh, a suspect in an investigation into sexual assault, without giving Tekoh his Miranda warnings. Tekoh confessed. At trial, the court allowed the prosecution to introduce Tekoh’s confession on the ground that the questioning did not violate Miranda because Tekoh was not in custody at the time. The jury, however, found Tekoh not guilty. Tekoh then sued Vega under Section 1983 for failing to give him the Miranda warnings. In his petition, Vega argues that the U.S. Court of Appeals for the 9th Circuit’s decision to let Tekoh’s claim proceed was incorrect and in conflict with other circuits. Vega maintains that Miranda governs when statements are admissible as evidence at trial, and that not receiving the warnings is not itself a constitutional violation. Vega also argues that he was not the proximate cause of the confession’s introduction at trial because the prosecutor and the trial judge played intervening and superseding roles.

These and other petitions of the week are below:

Struve v. Iowa
21-374
Issue: Whether police officers in the more than 20 states that have laws that prohibit sending text messages on a cellphone while driving, but that allow drivers to use their cellphones for other purposes, such as navigation or playing music, have reasonable suspicion under the Fourth Amendment to initiate an investigatory traffic stop, when they observe a driver briefly holding and manipulating a cellphone, in a manner that does not indicate whether the cellphone is being used for a lawful or prohibited purpose.

Lamoureux v. Montana
21-427
Issue: Whether a statute that criminalizes speech intended to annoy or offend is unconstitutionally overbroad under the First Amendment.

Johnson v. Bethany Hospice and Palliative Care LLC
21-462
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among the counsel to the petitioners in this case.
Issue: Whether Federal Rule of Civil Procedure 9(b) requires plaintiffs in False Claims Act cases who plead a fraudulent scheme with particularity to also plead specific details of false claims.

National Pork Producers Council v. Ross
21-468
Issues: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Court’s decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim under Pike v. Bruce Church, Inc.

Black v. Pension Benefit Guaranty Corporation
21-495
Issues: (1) Whether the Employee Retirement Income Security Act permits the termination of a distressed pension plan through an agreement between Pension Benefit Guaranty Corporation and the plan administrator; (2) whether termination through such an agreement, which avoids a hearing, violates the participants’ constitutional rights to due process; and (3) whether, if ERISA and due process allow for termination by agreement, the termination’s substantive legality is to be judged under the standards in 29 U.S.C. § 1342(c), or whether it is enough that the conditions in Section 1342(a) to “institute” proceedings may exist.

Vega v. Tekoh
21-499
Issue: Whether a plaintiff may state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda v. Arizona.

Bank of America Corporation v. Fund Liquidation Holdings LLC
21-505
Issue: Whether a district court lacking Article III jurisdiction can create such jurisdiction by adding a new plaintiff via Federal Rule of Civil Procedure 17.

Tuggle v. United States
21-541
Issue: Whether long-term, continuous, and surreptitious video surveillance of a home and its curtilage constitutes a search under the Fourth Amendment.

Posted in FeaturedCases in the Pipeline

Cases: Struve v. IowaLamoureux v. MontanaJohnson v. Bethany Hospice and Palliative Care LLCNational Pork Producers Council v. RossBlack v. Pension Benefit Guaranty CorporationVega v. TekohBank of America Corporation v. Fund Liquidation Holdings LLCTuggle v. United States

Recommended Citation: Andrew Hamm, Texting in the car, surveillance of a home, and Section 1983 for Miranda, SCOTUSblog (Oct. 22, 2021, 5:29 PM), https://www.scotusblog.com/2021/10/texting-in-the-car-surveillance-of-a-home-and-section-1983-for-miranda/

October 26, 2001, President George W. Bush Signs the ...

October 26, 2001. President George W. Bush signs U.S.A. PATRIOT Act. Click for report from history.com.

NEWS FROM THE SUPREME COURT OF PENNSYLVANIA

The Honorable Joffie C. Pittman, III, appointed Administrative Judge of Traffic Court

Click for Order of the Supreme Court.

Aaron Marcus, Esquire appointed Chair of the Criminal Law Procedural Rules Committee.

Click for Order of the Supreme Court.

Supreme Court issues Order on Pennsylvania District Attorneys Association Petition in In re Constitutionality of SORNA, No. 45 MM 2021. Click for Order.

Pennsylvania Supreme Court Announces Plans to Commemorate 300th Anniversary of the Court.

Click for News Release.

A Closer Look at Protection from Abuse Orders in Pennsylvania.

Click for News Release.

NEWS FROM THE GENERAL ASSEMBLY

The House and Senate were out of session last week.  The House reconvenes on October 25.   The Senate reconvenes on October 18.

GHOST GUNS.  Representative Mike Zabel (D-Delaware) has introduced House Bill 1966which would amend the Uniform Firearms Act, at 18 Pa.C.S. Section 6110.3, to make the sale of firearms and firearm parts without serial numbers a felony of the second degree.  In a memorandum to his colleagues, Representative Zabel stated:

Under existing law, a person who cannot legally own a gun may purchase such parts and assemble an untraceable, or “ghost,” gun that is almost impossible for law enforcement to track.  These gaps in Pennsylvania law allow the high demand for untraceable guns and gun parts to be met without any oversight.  My legislation would close these loopholes by prohibiting the purchase, sale, and production of untraceable gun parts.On October 12, the bill was referred to the House Judiciary Committee.

Click for Pennsylvania Bulletin for October 18, 2021.

THE BEST OF THE MARSHALL PROJECT

Insult and injury. When her jailers accused her years ago of stashing drugs in her cell, TMP’s Keri Blakinger protested and said it simply wasn’t possible. She was drug-free and not a smuggler. It didn’t matter. Off to solitary confinement she went, never knowing what her guards found or why they considered it contraband. It was only years later that she stumbled across a likely answer: cheap, flawed field drug test kits. Their use in prisons and jails across the country is a big problem, and now the subject of a lawsuit in Massachusetts, where incarcerated people say that false positives result in punishment without due process. In collaboration with NBC News, Blakinger has the latest in our “Inside Out” series.

THE BEST OF THE REST

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

Over the past two decades, the New York Police Department has been spending more than their annual budgets every year. The cause? Overtime cost. A new analysis by Bloomberg’s CityLab found that in fiscal year 2020, among big-city police departments, officers from the NYPD logged the most hours while violent crimes like homicide continue to rise. When they broke down overtime data by precinct, they found that precincts with the most police officers often had the highest overtime hours per officer, and the highest number of lawsuits against police officers. — Weihua Li, data reporter

PETITIONS OF THE WEEK

By ANDREW HAMM

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether tribal immunity bars beachgoers from asserting a right of way to public beaches over a Native American tribe’s private property and whether the Bankruptcy Judgeship Act’s fee schedule violates the Constitution.

In Upper Skagit Indian Tribe v. Lundgren, the justices grappled with whether the “immovable-property exception” applies to tribal sovereign immunity. Under this exception, governments that own property in other jurisdictions are treated like private individuals, not as sovereigns, in any land disputes. After a majority decided to send that case back to the Washington Supreme Court on procedural grounds, a new petition in a different case now asks the justices to take the question up again. Jason Self launches kayaks on public beaches near Trinidad Harbor in California for his kayaking business. Self, as well as beachgoers, must cross private property to reach the beach, and a prior owner of the property dedicated a portion for that access. After the Cher-Ae Heights Indian Community of the Trinidad Rancheria purchased the property, Self brought a quiet-title action seeking recognition of the public easement across the property. The trial court and the California Court of Appeal agreed with the tribe that tribal sovereign immunity barred the suit. Self maintains that the immovable-property exception applies because the land is not part of a reservation or placed in trust (which would allow the tribe to veto any right-of-way over the land). The case is Self v. Cher-Ae Heights Indian Community of the Trinidad Rancheria.

The Constitution’s bankruptcy clause gives Congress the power to “establish … uniform Laws on the subject of Bankruptcies throughout the United States.” However, two distinct programs govern U.S. bankruptcy law, with most of the country under the U.S. Trustee program and six judicial districts in North Carolina and Alabama under the Bankruptcy Administrator program. The programs operated similarly until the Bankruptcy Judgeship Act of 2017 increased the fees in the U.S. Trustee program nine months before that of the Bankruptcy Administrator program and made the new fees apply to already pending cases only for the U.S. Trustee program. Siegel v. Fitzgerald emerges from the 2008 Chapter 11 bankruptcy of Circuit City Stores, Inc., under the U.S. Trustee program. Because the case was still pending in 2017, the trustee of the Circuit City liquidating trust claims it had to pay over $500,000 more in fees than would have been required under the Bankruptcy Administrator program. Citing a circuit split in which the U.S. Courts of Appeals for the 4th and 5th Circuits upheld the fees and the U.S. Court of Appeals for the 2nd Circuit rejected them as non-uniform, the trustee asks for the justices’ review.

These and other petitions of the week are below:

United States v. Washington
21-404
Issue: Whether a state workers’ compensation law that applies exclusively to federal contract workers who perform services at a specified federal facility is barred by principles of intergovernmental immunity, or is instead authorized by 40 U.S.C. § 3172(a), which permits the application of state workers’ compensation laws to federal facilities “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.”

Impax Laboratories, Inc. v. Federal Trade Commission
21-406
Issues: (1) Whether the presence of a “reverse payment” that exceeds a patentee’s saved litigation costs and the value of any services provided by a patent challenger suffices to render a patent settlement unlawful, despite the Supreme Court’s holding to the contrary in Federal Trade Commission v. Actavis, Inc.; and (2) whether courts reviewing antitrust challenges to patent settlements can disregard evidence of the strength of the patents at issue, as the U.S. Court of Appeals for the 5th Circuit held here, or instead whether they must consider what “the patent’s strength would otherwise permit,” as the U.S. Court of Appeals for the 3rd Circuit held in King Drug Co. of Florence v. Smithkline Beecham Corp.

Arellano v. McDonough
21-432
Issues: (1) Whether the rebuttable presumption of equitable tolling from Irwin v. Department of Veterans Affairs applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, whether the government has rebutted that presumption; and (2) whether, if 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, this case should be remanded so the agency can consider the particular facts and circumstances in the first instance.

Siegel v. Fitzgerald
21-441
Issue: Whether the Bankruptcy Judgeship Act violates the uniformity requirement of the Constitution’s bankruptcy clause by increasing quarterly fees solely in districts under the U.S. Trustee program, not in those under the Bankruptcy Administrator program.

Sackett v. Environmental Protection Agency
21-454
Issue: Whether Rapanos v. United States — in which the Supreme Court held that the Clean Water Act does not regulate all wetlands, but without a majority opinion explaining why that is so — should be revisited to adopt the plurality’s test for wetlands jurisdiction under the Clean Water Act, in which only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated.

Jobe v. National Transportation Safety Board
21-469
Issues: (1) Whether Exemption 5 of the Freedom of Information Act — which provides that federal agencies need not release privileged “inter-agency or intra-agency memorandums or letters” — includes an unwritten “consultant corollary,” under which documents prepared by private, outside consultants are deemed “intra-agency memorandums or letters”; and (2) whether any “consultant corollary” in FOIA Exemption 5 could ever render “intra-agency” the communications between an agency and (1) employees of a private, regulated company with an economic interest in the agency’s actions; or (2) the representative of a foreign government.

Brookhart v. Smith
21-475
Issue: Whether the U.S. Court of Appeals for the 7th Circuit violated 28 U.S.C. § 2254(d)’s strictures in awarding habeas relief to the respondent, Kenneth Smith, based on its own reweighing of the evidence rather than deferring to the state court’s contrary view.

Self v. Cher-Ae Heights Indian Community of the Trinidad Rancheria
21-477
Issue: Whether the immovable-property exception applies to tribal sovereign immunity.

Posted in FeaturedCases in the Pipeline

Cases: United States v. WashingtonImpax Laboratories, Inc. v. Federal Trade CommissionArellano v. McDonoughSiegel v. FitzgeraldSackett v. Environmental Protection AgencyJobe v. National Transportation Safety BoardBrookhart v. SmithSelf v. Cher-Ae Heights Indian Community of the Trinidad Rancheria

Recommended Citation: Andrew Hamm, Blocked beachgoers and bankruptcy bills, SCOTUSblog (Oct. 15, 2021, 12:43 PM),  https://www.scotusblog.com/2021/10/blocked-beachgoers-and-bankruptcy-bills/

ARGUMENT ANALYSIS: Justices appear to favor reinstating death penalty in Boston Marathon bomber case.

By AMY HOWE

The Supreme Court heard oral argument on Wednesday in the case of Dzhokhar Tsarnaev, who was convicted for his role in the 2013 Boston Marathon bombings, which killed three people and badly injured hundreds more. A jury sentenced Tsarnaev to death, but a federal appeals court threw out Tsarnaev’s death sentences last year. That prompted the federal government to come to the Supreme Court, asking the justices to reinstate the death penalty for Tsarnaev. After over 90 minutes of oral argument, a majority of the justices seemed inclined to do just that.

The ruling by the U.S. Court of Appeals for the 1st Circuit rested on two different rationales. First, the court of appeals concluded, the trial judge should have asked would-be jurors what media coverage they had seen or heard about Tsarnaev’s case. Second, the 1st Circuit held, the trial judge should have allowed Tsarnaev’s lawyers to introduce evidence that Tsarnaev’s brother, Tamerlan, was involved in a separate, unsolved triple murder two years before the bombings. 

Click for full report.

October 18, 1867. U.S. takes possession of Alaska. Click for report from history.com.

The House reconvenes on October 25. The Senate reconvenes on October 18.

House Bill 488 – amends Title 18 (Crimes and Offenses) to create a new crime “duty to report disappearance of a child” was passed by the House on October 6 by a vote of 155-44. The bill goes to the Senate for consideration.

MEDICAL CANNIBIS ADMINISTERED BY SCHOOL NURSES.  Representative Malcolm Kenyatta (D-Philadelphia) has introduced House Bill 1948 which would amend the Medical Marijuana Act to permit a school nurse to administer “medical marijuana to the patient while the patient attends school at a school district or charter school.”  On October 4, the bill was referred to the House Health Committee. 

ADULT USE CANNABIS.

Senator Mike Regan (R-Cumberland, York) has announced plans to introduce legislation to legalize adult use cannabis. In a memorandum to his colleagues, Senator Regan wrote:

My legislation will direct revenues to cities fighting violent crimes, organizations providing after-school programs for youth in disadvantaged neighborhoods, and local law enforcement for the necessary equipment, training, and education so they can truly serve and protect residents and focus on combatting the illegal drug trade that is responsible for so much of the crime, destruction, and death in our communities.

By dedicating another portion of revenues directly to our Pennsylvania State Police (PSP), we can rebuild our Motor License Fund, which PSP has relied on for the majority of their funding for too many years now. This will then allow for proper investment in Pennsylvania’s roads and bridges, offsetting the costs of building out our 21st century transportation needs and eliminating the supposed necessity for PennDOT’s bridge tolling plan. Further, a strong infrastructure will lead to more job creators and entrepreneurs investing in Pennsylvania’s economic future.

In addition to ensuring dedicated funding for law enforcement and our communities, my proposal will:

  • Legalize adult-use marijuana for those 21 years of age and older;
  • Establish a new regulatory control board;
  • Remove penalties for use and possession by adults;
  • Protect the Commonwealth’s medical marijuana program;
  • Allow for the legal purchase and possession of firearms regardless of one’s choice to use marijuana;
  • Provide for social equity, inclusion, and assistance for business entry into the industry;
  • Address DUI enforcement;
  • Develop education and deterrents for underage use and possession; and
  • Enhance Pennsylvania’s agricultural industry.

Representative Amen Brown (D-Philadelphia) has announced plans to introduce legislation to legalize adult use cannabis. In a memorandum to his colleagues, Representative Brown wrote:

We must take a practical, expeditious approach to ending the serious inequities that cannabis prohibitions created.  My bill, the Cannabis Regulation and Tax Act, will address all cannabis-related matters in the Commonwealth. Specifically will incorporate a novel social equity and investment platform designed to elevate the individuals and communities hardest hit by disproportionate enforcement of low-level cannabis possession laws by making a suite of opportunities available to qualified individuals and ensuring new businesses owned by qualified individuals have all the tools, training, and capital necessary to succeed over the long term.

My bill will also create thousands of family-sustaining jobs, bring billions of dollars in capital investment, create a new revenue stream for the Commonwealth that can be used to invest in social programs, and reduce crime. Simultaneously, my bill will enhance public safety by incorporating consumer protections, currently non-existent in the illicit cannabis market, and curbing that illicit market which is thriving and preying on vulnerable populations and our youth.

Legalizing and regulating cannabis is simply the right thing to do – ensuring that an equity lens is applied and that injustices caused by enforcement of drug laws are redressed.  It is right for my constituents.  It is right for the economy.  It is right for the Commonwealth.  Please join me in co-sponsoring this important legislation.

Click for Pennsylvania Bulletin of October 9, 2021

Governor Wolf announces that Pennsylvania prison population reaches 20 year low.

NEWS RELEASE, October 7, 2021. Click for link to news release.

Governor Tom Wolf announced today that as of October 1, the number of people incarcerated in state correctional facilities is 36,743 – the lowest total since 2001. The population total reflects a reduction of more than 8,300 individuals since the onset of the COVID-19 pandemic in March 2020. 

“My administration has taken a comprehensive approach to reducing the prison population, with an emphasis on rehabilitation for men and women who are incarcerated and opportunities after incarceration, and I’m proud of our successful efforts while ensuring public safety,” Governor Wolf said. “Most individuals who are incarcerated will be released at some point, so investing in resources and creating good policies ensures lower incarceration rates, a reduction in recidivism, and a better, more productive quality of life for re-entrants.​”

“Bipartisan support from the Wolf Administration and state legislators – particularly the Justice Reinvestment Working Group — has created an environment that allows the DOC to work toward decarceration,” said Pennsylvania Department of Corrections Acting Secretary (DOC) George Little, who noted that people of color represent 70 percent of the Pennsylvania prison population reduction since 2015. “Reducing the number of incarcerated individuals allows the DOC to focus on providing much needed mental health, drug treatment, and other services to the remaining incarcerated population.” 

During the pandemic, DOC staff has expedited furloughs of parolees from centers to home plans, coordinated with the parole board to maximize parole releases, reviewed parole detainers for those in county jails and state prisons, expedited the release process for reentrants with a pending approved home plan, and implemented a temporary reprieve program – all with the goal of keeping staff, incarcerated population, and the community safe. 

This summer, the DOC launched an interactive dashboard that allows users to track the state prison population, the number of people under parole supervision, recidivism and other key data over the past 20 years. The dashboard also provides context to the data, highlighting racial disparities that persist within the incarcerated population.   

Pennsylvania has taken a bipartisan approach to criminal justice reform and in recent years has: 

  • Created a partnership developed by the departments of Human Services and Corrections that will better connect people who are being released from state correctional institutions with opioid use disorder (OUD) treatment by connecting them to treatment through one of Pennsylvania’s Centers of Excellence (COE). 
  • Signed more than 1,500 pardons to date, more than any other governor in more than 20 years, including 95 pardons related to the Expedited Review Program for Non-Violent Marijuana-Related Offenses, a program introduced by the Board of Pardons and authorized by Lt. Governor John Fetterman in September 2019 to speed up the pardons’ application process for people with nonviolent marijuana possession or paraphernalia convictions. 
  • Granted 38 commutations, more than any other governor in more than 40 years, including 13 commutations in February 2021, for people who were sentenced to life. 
  • Passed Justice Reinvestment 2 addressing the high cost of incarceration in the state, strengthening support for county probation programs and fixing inadequate sentencing guidelines, and reforming the post-trial criminal justice system. 
  • Created a Fair-Chance hiring policy for state agencies that removes the criminal conviction question, otherwise known as “banning the box,” from non-civil service employment applications for agencies under the governor’s jurisdiction. 
  • Signed the “Clean Slate” bill, the first of its kind in the nation, to help those who have committed low-level offenses and have paid their penalty get back on the path to a blemish-free record, removing potential roadblocks to jobs, housing, health care, and education. 
  • Signed Act 95 of 2018, eliminating driver’s license suspensions for non-driving infractions. 
  • Signed Act 146 of 2018, extending the time a convicted individual has to file a post-conviction relief action to one year, from what was 60 days under current law. 
  • Signed Act 147 of 2018, updating Pennsylvania’s DNA testing law to reflect significant advances in technology and the lessons learned by criminal justice professionals since 2002. The legislation removes the supervision requirement that only people serving a sentence can apply for DNA testing. 
  • Signed Act 148 of 2018, a victim protection bill regarding housing options and emergency transfers. 

The Pennsylvania Department of Corrections oversees the operation of 23 state correctional institutions, one motivational boot camp, 14 community corrections centers, and nearly 40 contract facilities. For more information on the DOC, visit cor.pa.gov

THE BEST OF THE MARSHALL PROJECT

Dispatch from deadly Rikers Island. The jail complex is in the midst of a horrifying crisis of dysfunction and violence. Incarcerated people are slashing one another and dying by suicide at alarming rates. Demoralized corrections officers are calling out sick and quitting, leaving basic administrative functions unperformed. The Marshall Project spoke with detainees, corrections officers and government officials to share their perspectives on the Rikers crisis.

The generational impact of incarceration on mothers. In a documentary short and a photography project, Anna Rawls explores the lives of Charnal Chaney and G. King, the daughter of an incarcerated woman and an incarcerated mom, respectively. Chaney’s connection to her own children is impacted by her 18-year separation from her mother, and King searches for ways to heal herself from her experience in prison to be present for her children. The film will be screened on Sunday, Oct. 10, at the Tryon film festival in North Carolina and will be available online from Oct. 11 through Nov. 11.

THE BEST OF THE REST

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

What happens when you give a juvenile court judge unfettered power to handcuff and lock up children as young as 8. Reporters Meribah Knight of Nashville Public Radio and ProPublica’s Ken Armstrong (a beloved TMP alum) document the horror show that is juvenile court in Rutherford County, Tennessee. A White woman who touts her tough-on-crime credentials has held power over juvenile court since 2000, and has used it frequently to lock up Black children — even when they hadn’t committed a crime. Reading it, I felt the pain of the officer who called in sick rather than handcuff kids in pigtails, because he feared having a heart attack or breaking down in tears at the scene. — Cary Aspinwall, staff writer

In 1898, delegates in Louisiana set out to draft a state constitution with the express goal of establishing “the supremacy of the white race.” One instrument to that end: non-unanimous juries, which allowed a criminal defendant to be convicted even if one or two of the 12 jurors dissented. State voters squashed this remnant of Jim Crow in 2018, but some 1,500 people across the state remain in prison on non-unanimous verdicts. Nick Chrastil at The Lens tells the story of one of them: Brandon Jackson, who was convicted of armed robbery in 1997. He talks about the confusion and disappointment of remaining locked up even after the Supreme Court ruled (in Ramos v. Louisiana) that the trial that put him there was unconstitutional. “From my understanding, we are all under the same Constitution. So you are saying that the Constitution only applies to this part, but not this part?” — Jamiles Lartey, staff writer

ARGUMENT ANALYSIS: Argument over state secrets and CIA black sites takes unexpected turn in final few minutes.

By AMY HOWE

The justices on Wednesday were skeptical of efforts by a Guantanamo Bay detainee to obtain testimony and documents about his treatment under the U.S. government’s torture program at CIA “black sites” in the aftermath of Sept. 11, 2001. The government has contended that the information is protected by the “state secrets” privilege, a doctrine that allows the government to withhold information in litigation when disclosing it would compromise national security, and by the time the lawyer representing the detainee sat down on Wednesday the court seemed inclined to agree. The argument took an unexpected twist, however, when some justices proposed a different solution to the problem before the court: allowing the detainee himself to testify about how he was treated.

Click for full report.

ARGUMENT ANALYSIS: A search for coherence in interplay between AEDPTA and Brecht

By EVE BRENSIKE PRIMUS

The Supreme Court heard oral argument Tuesday in Brown v. Davenport to consider whether a Michigan prisoner, whose constitutional right to a fair trial was violated when he was visibly shackled before the jury, is entitled to habeas corpus relief. Both sides agree that there was a constitutional violation when Ervine Lee Davenport was shackled in front of the jury while facing a murder charge. The dispute centers on whether that error was harmless and, more specifically, what test a federal habeas court should apply when addressing a state prisoner’s claim that the state courts incorrectly deemed a constitutional violation harmless.

Click for full report.

ARGUMENT ANALYSIS: Justices probe both sides in clash over confrontation clause

By Shaakirrah Sanders

Tuesday’s oral argument in Hemphill v. New York made apparent that a New York evidentiary rule, known as the “door opening” rule, implicates the Sixth Amendment’s confrontation clause. But by the end of the hour-long argument, it wasn’t clear how the justices are inclined to deal with the interaction of the two.

Under the New York rule, a defendant who introduces evidence may “open the door” to the government’s responsive evidence and thereby forfeit the right to exclude that evidence, even if the government’s evidence ordinarily would violate the confrontation clause. If the court rejects application of New York’s rule, clarity could be offered on the scope of confrontation beyond the testimonial distinction recognized in Crawford v. Washington. If New York’s rule survives, the ruling may define on when defense counsel’s behavior constitutes a proper waiver of cross-examination beyond the failure to object to the introduction of testimonial evidence at trial.

Click for full report.

PETITIONS OF THE WEEK: International arbitration; McGirt retroactivity and anti-discrimination laws

By ANDREW HAMM

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, a potential replacement for the now-dismissed Servotronics Inc. v. Rolls-Royce PLC case concerning subpoenas for international arbitrations, whether McGirt v. Oklahoma should apply retroactively, and whether the Colorado Anti-Discrimination Act violates a website designer’s First Amendment rights.

In March, the Supreme Court granted certiorari in Servotronics Inc. v. Rolls-Royce PLC to resolve whether 28 U.S.C. § 1782(a) applies to private commercial arbitral tribunals. Section 1782 authorizes a district court to order a person who “resides or is found” within the district “to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” Servotronics involved a circuit split over whether a “foreign or international tribunal” includes private commercial arbitration. The U.S. Court of Appeals for the 4th Circuit allowed Servotronics to subpoena persons with first-hand knowledge of an incident relevant to an arbitration in London, but the U.S. Court of Appeals for the 7th Circuit rejected Servotronics’ subpoena request. However, the parties stipulated that the case be dismissed before the justices were scheduled to hear argument in the case, and on Sept. 29, the Supreme Court dismissed the case from its merits docket.

In ZF Automotive US, Inc. v. Luxshare, Ltd., the justices have a chance to take up the same issue again. In this case, a dispute emerged after Luxshare, a Hong Kong limited liability company, purchased a business unit from ZF Friedrichshafen AG, a German corporation headquartered in Germany. The contract provided for resolution by the rules of the German Institution of Arbitration. Following precedent in the U.S. Court of Appeals for the 6th Circuit, the district court granted Luxshare’s request to subpoena ZF Automotive US, Inc., a Michigan-based indirect subsidiary, on the ground that a private arbitration counts as a “foreign or international tribunal” for Section 1782. ZF Automotive US has filed a petition for certiorari before the judgment asking the justices to take this case in place of Servotronics.

In last year’s McGirt v. Oklahoma, the Supreme Court ruled that the eastern half of Oklahoma remains “Indian country” for purposes of the Major Crimes Act, meaning that the federal government, not the state, has authority for prosecuting Native Americans for major crimes committed on reservations. As reported on SCOTUSblog, Oklahoma has asked the justices to consider revisiting and overruling McGirt. In Parish v. Oklahoma, however, Clifton Parish’s petition asks the justices to go in the opposite direction and to rule that McGirt applies retroactively to convictions that were final when McGirt was announced. In August 2020, Parish, convicted and sentenced in Oklahoma court for second-degree murder, filed a petition for post-conviction relief on the grounds that he is a member of the Choctaw Nation and that his crime occurred within the historical boundaries of the Choctaw Nation. The Oklahoma Court of Criminal Appeals ruled that McGirt was not retroactive because the ruling was procedural. Parish argues that the decision is substantive because Oklahoma lacked the power to prosecute him.

In 303 Creative LLC v. Elenis, a website designer asks the justices to decide whether the Colorado Anti-Discrimination Act violates the free speech or free exercise clauses of the First Amendment. Lorie Smith of 303 Creative LLC wants to state on her website that she will not create websites that promote messages contrary to her faith, including same-sex marriage. Saying she fears the state will prosecute her for violating the CADA, she sued to challenge the law’s constitutionality. The U.S. Court of Appeals for the 10th Circuit upheld the CADA. For speech, the 10th Circuit ruled that Colorado had a compelling interest in ensuring access to Smith’s services, and for free exercise, the court ruled that the CADA was generally applicable. In her petition, Smith asks the justices to review these holdings and potentially, if the law is generally applicable, to revisit the prevailing standard from Employment Division v. Smith. (The justices considered a request to reconsider their cert denial in a similar case, Arlene’s Flowers Inc. v. Washington, in their “long conference” last week, and they have relisted it for Friday’s conference.)

These and other petitions of the week are below:

Rojas v. United States
20-1594
Issue: Whether the Federal Food, Drug and Cosmetic Act’s felony prohibitions on “dispensing” drugs reach the administering of drugs by practitioners, which has been left to state and local regulation for more than a century.

Jackson v. Hudson
21-347
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel to the petitioner in this case. This listing occurs without regard to the likelihood that certiorari will be granted.
Issue: Whether a federal prisoner is entitled to bring a habeas claim under the saving clause of 28 U.S.C. § 2255(e) to challenge the unlawful application of a mandatory minimum sentence, and imposition of a sentence that exceeded the proper statutory maximum, when his challenge was previously precluded by binding circuit precedent that has since been overruled by the circuit sitting en banc on the basis of an intervening decision of the Supreme Court.

John K. MacIver Institute for Public Policy, Inc. v. Evers
21-388
Issue: Whether the government’s selective exclusion of members of the press from the incoming governor’s official press conferences and briefings implicates the equal treatment guarantee of the First Amendment’s press clause, as the U.S. Courts of Appeals for the 1st, 2nd and District of Columbia Circuits have held, or instead should be analyzed under the speech clause’s forum analysis, as the U.S. Court of Appeals for the 7th Circuit below and the U.S. Court of Appeals for the 4th Circuit have held.

Delta Air Lines, Inc. v. Oman
21-396
Issue: Whether, consistent with the commerce clause and the deregulatory preferences of the Airline Deregulation Act, California may extend its wage-and-hour laws to flight attendants who spend the vast majority of their workweek outside of California simply because they report to a California airport to begin their multi-day, multi-state work shift.

ZF Automotive US, Inc. v. Luxshare, Ltd.
21-401
Issue: Whether 28 U.S.C. § 1782(a), which permits litigants to invoke the authority of United States courts 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, as the U.S. Courts of Appeals for the 2nd, 5th and 7th Circuits have held.

Kisor v. McDonough
21-465
Issue: Whether the term “relevant official service department records” in 38 C.F.R. § 3.156(c)(1)’s “reconsideration” provision encompasses all records that “go to a benefits criterion,” or is instead restricted to only those records that “relate to the basis of the [Department of Veterans Affairs’] initial denial of benefits,” as in Kisor v. Wilkie.

Parish v. Oklahoma
21-467
Issue: Whether McGirt v. Oklahoma applies retroactively to convictions that were final when McGirt was announced.

303 Creative LLC v. Elenis
21-476
Issues: (1) Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist’s sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment; and (2) whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable under Employment Division v. Smith, and if so, whether the Supreme Court should overrule Smith.

Recommended Citation: Andrew Hamm, International arbitration, McGirt retroactivity, and anti-discrimination laws, SCOTUSblog (Oct. 8, 2021, 5:14 PM), https://www.scotusblog.com/2021/10/international-arbitration-mcgirt-retroactivity-and-anti-discrimination-laws/

October 14, 1066. Normans victorious in Battle of Hastings. Click for report from Historic UK.

The House is in session October 4, 5 and 6. The Senate returns to session on October 18.

AIDING SUICIDE–Governor Wolf signed House Bill 184 on causing or aiding suicide (“Shawn’s Law”). Click for text of Act 71.

ADVERTISING CONSTITIONAL AMENDMENTS–Senate passed Senate Bill 738 (43 to 6) and Senate Bill 764 (36-13) to address errors which prevented referendum of Constitutional Amendment to open a two year window for law suits by child victims of sexual assault. The bills will be considered by a joint hearing of the House State Government and Judiciary Committees on October 4.

JURY DUTY EXEMPTION–On September 28, Senator Kristin Phillips-Hill (R-York) has introduced Senate Bill 883 which would exempt care givers from jury duty.  The exemption would be limited to persons who reside in a household with primary responsibility for the care of a child under the age of seven years or of an individual with a permanent physical or intellectual disability.  The care giver could not have employment outside of the home and not have alternate care available or cannot afford alternate care.  On September 28, 2021, the bill was referred to the Senate Judiciary Committee.

RECORDS OF CHILD ABUSE–On September 17, Senator Judy Ward (R-Blair, Cumberland, Franklin, Fulton and Huntingdon) introduced Senate Bill 871, which would make changes to the child protective laws as to maintenance and expungement of records of alleged child abuse.  On September 29,  the bill had second consideration and was recommitted to the Senate Appropriations Committee.

MUGSHOTS–State Representatives Chris Rabb (D-Philadelphia) and Emily Kinkead (D-Allegheny) are proposing legislation to prevent the release of mugshots prior to conviction. In a memorandum to their colleagues, Representatives Rabb and Kinkead stated, that while booking photographs and arrest records are often published by law enforcement agencies on their websites, “in many cases these ‘mug shots’ are circulating on for-profit websites long after local law enforcement has removed the photos, even if the charges were dropped, or the individuals in question were exonerated/not convicted.”

Click for Pennsylvania Bulletin of October 2, 2021.

October 31 is deadline to apply for Criminal Procedural Rules Committee. Click for details.

October 31 is deadline to apply for Continuing Legal Education Board. Click for details.

Membership terms usually require a two-, four- or six-year commitment, with a possibility for reappointment for a second term for some bodies.

The time commitment varies by entity. For example, most Rules Committees meet three-to-four times a year at locations throughout the state. Meetings generally last from one to one and one-half days.

If you would like to be considered to serve on a board, committee, advisory group or related independent entity, email the application, cover letter, resume and other pertinent information expressing your reasons of interest to SCApplications@pacourts.us. If you are unable to email documents, send them to Diane Bowser at the address listed at the top right of this page.

All applications will be retained for two years. In the event that additional positions become open on the committee or board for which an application was submitted, those retained applications will be considered for those openings within the two-year period.

The application requires applicants to answer whether criminal charges or formal charges of professional misconduct have ever been filed against the applicant. Applicants must inform the Court if there are any changes to that answer during the two-year retention period. Applicants should submit that information through the same address used to file the application. Download the committee membership application

The Supreme Court of Pennsylvania appreciates your desire to participate in this service. There is no compensation for service. All inquiries will receive thoughtful and careful consideration based on the need for specific experience and expertise.

THE BEST OF THE MARSHALL PROJECT

The Marshall Project wins the 2021 Collier Prize for State Government Accountability, for the 2020 series “Mississippi Penal System, Uncovered.” In it, we chronicled violence, financial improprieties and the continued existence of “debtors’ prisons” in Mississippi’s prison system. The award, given by the University of Florida College of Journalism and Communications, is shared with our reporting partner Mississippi Today.

THE BEST OF THE REST

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

This week, a new Wall Street Journal investigation found that more than 130 federal judges failed to recuse themselves from civil cases that involve companies that they or their family members invest in, breaking the law at the same time. These judges ruled in favor of the companies in two-thirds of the cases, and one judge in Texas had 138 cases where he had a conflict of interest. After this bombshell investigation, more than 50 judges notified parties involved that they should have recused themselves, and that may lead to more ripple effects and overturned rulings. “I dropped the ball,” one judge told WSJ when asked about his conflict of interests. “Thank you for helping me stay on my toes the way I’m supposed to.” — Weihua Li, data reporter

SCOTUS to hear case Monday on Armed Career Criminal Act

By Daniel Harawa

If you break into a storage facility and steal from 10 separate storage units, did you commit 10 offenses “on occasions different from one another”? The Supreme Court will answer this question in Wooden v. United States, yet another case concerning the scope of the Armed Career Criminal Act. The court will hear oral argument on Monday, the first day of the 2021-22 term and the first time the justices will be back in the courtroom for an in-person hearing in more than 18 months.

In 1997, James Wooden broke into a ministorage facility and stole items from 10 different storage units. Wooden pleaded guilty to 10 counts of burglary in Georgia state court and served an eight-year sentence.

Fast-forward 18 years. Wooden was sitting at home one evening when he heard a knock at his door. He answered to find an unknown man, who asked to speak with Wooden’s wife. Wooden invited the stranger inside while he went to get her. The stranger just happened to be a plain-clothes officer who knew of Wooden’s felony convictions. Because people with felony convictions are generally prohibited from possessing firearms, when the officer stepped inside and saw a gun, he arrested Wooden.

The federal government charged Wooden with being a felon in possession of a firearm — a crime for which the maximum punishment is 10 years’ imprisonment. The government also requested that Wooden be designated an armed career criminal under the Armed Career Criminal Act, in which case Wooden would be subject to a 15-year mandatory minimum. To qualify as an armed career criminal, a defendant must have three prior “violent felony” or “serious drug offense” convictions. Here, the government argued that Wooden’s 10 burglary convictions qualified as 10 “violent felonies” for ACCA purposes. To constitute separate convictions under ACCA, the crimes must be “committed on occasions different from one another.” Wooden argued that the 10 burglaries all occurred on the same “occasion,” and therefore counted for only one qualifying violent felony under ACCA.

The U.S. Court of Appeals for the 6th Circuit agreed with the government. It held that the crimes were committed on separate “occasions” because Wooden “committed ten distinct acts of burglary.” To the 6th Circuit, it was dispositive that “Wooden could not be in two (let alone ten) of [the storage units] at once.” Much like the 6th Circuit, other circuits had held that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously,” as in United States v. Carter, an 11th Circuit case. Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances. The 2nd Circuit, for instance, “distinguish[ed] between the defendant who simply commits several offenses in a connected chain of events and the defendant who … commits multiple crimes separated by substantial effort and reflection.” The Supreme Court granted certiorari to resolve this split.

Before the Supreme Court both Wooden and the government argue that ACCA’s structure, history, and purpose support their position.

Start first with Wooden’s arguments. He asserts that “[a]s used in ordinary speech,” events occur on the same “occasion” “when they arise from or exploit the same circumstances.” For instance, when you go to the mall and try on shoes, browse for furniture, and buy some ice cream, such an outing would “naturally be described, if part of a continuous trip to the mall, as having taken place on the ‘same occasion.’” Moreover, says Wooden, the legislative history shows that Congress was targeting the “habitual offender” when passing ACCA, as the statute was designed to cover those “who made a career of exploiting distinct criminal opportunities.” Plus, reminds Wooden, under the rule of lenity, any ambiguity in the statute must be resolved in favor of the defendant.

By contrast, the government argues that an “occasion” is “an occurrence, happening, or incident, that takes place at a particular point in time.” Under this understanding, the government urges a “temporal-distinctness test,” such that “the relevant ‘occasion’ for ACCA purposes is the point in time when each offense is ‘committed.’” This reading is superior, says the government, because it “is simple, manageable, and furthers ACCA’s goal of ensuring similar punishment for similarly situated offenders.” And to the extent that Wooden is arguing ACCA sweeps too broadly, responds the government, “it is not for this Court to rewrite the statute so that it covers only what the Court thinks is necessary to achieve what it thinks Congress really intended.”

Posted in FeaturedMerits Cases

Cases: Wooden v. United States

Recommended Citation: Daniel Harawa, What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer., SCOTUSblog (Oct. 1, 2021, 7:21 PM), https://www.scotusblog.com/2021/10/whats-an-occasion-scope-of-armed-career-criminal-act-depends-on-the-answer/

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 House of Representatives may vote by proxy, when the statute of limitations begins for state prisoners seeking DNA testing, a football coach’s post-game prayer and Texas’ new anti-abortion law.

For the first time in its history, the House of Representatives in May 2020 allowed absent members to delegate another member to vote on their behalf because of the public health emergency. House Minority Leader Kevin McCarthy, R-Calif., and other representatives filed suit on the ground that the Constitution requires in-person voting in Congress. The district court and U.S. Court of Appeals for the District of Columbia Circuit rejected these claims on the ground that the Constitution’s speech-or-debate clause prohibits judicial review of legislative actions such as voting. In McCarthy v. Pelosi, McCarthy maintains that the clause does not foreclose all judicial review and that other provisions, such as the quorum clause, indicate that physical attendance is a constitutional requirement.

In Skinner v. Switzer, the Supreme Court ruled that state prisoners could pursue post-conviction claims for DNA testing of crime-scene evidence in a federal civil rights action under 42 U.S.C. § 1983 if they have unsuccessfully sought testing under state procedures. In August 2019, Rodney Reed, convicted of a 1998 murder, filed a Section 1983 action in federal district court seeking DNA testing. The U.S. Court of Appeals for the 5th Circuit ruled that his filing was untimely because more than two years – the relevant statute of limitations – had passed since a state trial court first denied his 2014 request for DNA testing. Arguing that other circuits would not start the statute of limitations until the end of the appeals process, which in Reed’s case occurred in October 2017, Reed asks for the justices’ review. The case is Reed v. Goertz. (Last year, the court denied review in another case, Reed v. Texas, in which Justice Sonia Sotomayor, concurring in the denial, nonetheless noted a “pall of uncertainty over Reed’s conviction.”)

In January 2019, the Supreme Court denied a petition for certiorari from a football coach at a public high school who claimed that he lost his job because he prayed on the field after every game. At that time, four justices – Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh – noted that they concurred in the decision because the factual record was too undeveloped to grant preliminary relief to the coach, not because they “necessarily agree[d] with the decision (much less the opinion) below.” Since then, the district court and U.S. Court of Appeals for the 9th Circuit have rejected the coach’s claims. In Kennedy v. Bremerton School District, the coach has filed another petition that asks the justices to review whether his conduct is private and protected by the First Amendment.

Finally, as Amy Howe reported for SCOTUSblog, the justices again face Texas’ abortion law, S.B. 8, which prohibits abortions beginning around the sixth week of pregnancy. On Sept. 1, the court rejected an initial request by abortion providers to block the law from going into effect. In Whole Woman’s Health v. Jackson, the providers have filed a petition for certiorari before judgment, asking the justices to hear the case before the U.S. Court of Appeals for the 5th Circuit has made its decision.

These and other petitions of the week are below:

Byrd v. Lamb
21-184
Issue: Whether, under either step of the Abbasi test, line-level federal officers may be sued for violating the Fourth Amendment.

Wyoming v. Mahaffy
21-383
Issue: Whether the Supreme Court’s rejection in Rodriguez v. United States of de minimis extensions to traffic stops abrogated or limited Arizona v. Johnson, thereby prohibiting officers from posing any unrelated questions even where the inquiry does not measurably extend the duration of the stop.

McCarthy v. Pelosi
21-395
Issue: Whether the speech-and-debate clause forecloses judicial review of the constitutionality of the proxy voting resolution in this action against the speaker of the house, the clerk and the sergeant-at-arms; and (2) whether the U.S. House of Representatives resolution allowing members to cast floor votes by proxy is unconstitutional.

Kennedy v. Bremerton School District
21-418
Issues: (1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.

Nance v. Ward
21-439
Issues: (1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.

Reed v. Goertz
21-442
Issue: Whether the statute of limitations for a 42 U.S.C. § 1983 claim seeking DNA testing of crime-scene evidence begins to run at the end of state-court litigation denying DNA testing, including any appeals (as the U.S. Court of Appeals for the 11th Circuit has held), or whether it begins to run at the moment the state trial court denies DNA testing, despite any subsequent appeal (as the U.S. Court of Appeals for the 5th Circuit, joining the U.S. Court of Appeals for the 7th Circuit, held below).

Whole Woman’s Health v. Jackson
21-463
Issue: Whether a state can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

Posted in FeaturedCases in the Pipeline

Cases: Whole Woman’s Health v. JacksonByrd v. LambWyoming v. MahaffyMcCarthy v. PelosiKennedy v. Bremerton School DistrictNance v. WardReed v. Goertz

Recommended Citation: Andrew Hamm, House voting, DNA testing, a coach’s praying, and abortion returning, SCOTUSblog (Oct. 1, 2021, 4:57 PM), https://www.scotusblog.com/2021/10/house-voting-dna-testing-a-coachs-praying-and-abortion-returning/

October 4, 1970. Janis Joplin dies at age 27. Click for report from history.com.

Mural by Violet Oakley, Pennsylvania State Capitol

The House and Senate meet September 27, 28 and 29.

The House Judiciary Committee meets September 28 to consider the following bills: HB 1196 (granting standing to the House and Senate to intervene in court cases involving Constitutional challenges), HB 1564 (felons not to possess firearms), HB 1736 (prohibit publishing or disseminating booking photographs or mug shots for commercial use), HB 1836 (create offense of child torture).

EXTREME RISK PROTECTION ORDERS. On September 23, Representative Todd Stephens (R-Montgomery) introduced House Bill 1903 to create extreme risk protection orders (ERPO).  In a memorandum to their colleagues, Representative Stephens and Representative Jennifer O’Mara (D-Delaware) wrote, “ERPOs provide a mechanism for loved ones, family members, or law enforcement to ask a Judge to hold a hearing to temporarily disarm someone in crisis.”  The legislation provides for hearings, with the right to counsel and the right to court appointed counsel where the respondent cannot afford counsel, relinquishment of firearms for three to 12 months, and sanctions against persons who commit abuse of process.  House Bill 1903 has been referred to the House Judiciary Committee.

CAUSING OR AIDING SUICIDE.  On September 21, the House concurred to Senate amendments to House Bill 184 (“Shawn’s Law”) relating to causing or aiding a suicide.  The bill was presented to the Governor on September 22.  Click for report from Penn Live.  If the bill is signed into law, the Pennsylvania Commission on Sentencing would be required to provide for a sentence enhancement when at the time of the offense, the person who died by suicide or was aided or solicited to commit suicide is under the age of 18 years of age or has an intellectual disability or autism spectrum disorder.

Click for Pennsylvania Bulletin of September 25, 2021

In Commonwealth v. Purnell, Supreme Court authorizes balancing test for allowing comfort dogs to accompany witnesses in court.

Opinion by Chief Justice Baer

Concurring Opinion by Justice Donohue

NEWS

Supreme Court hears argument on Victims Right Amendment

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Released from psychiatric hospitals, but nowhere close to free. California has a “forensic conditional release” program designed to help people locked away for years in psychiatric hospitals transition safely back to society when they have been deemed “restored to sanity” after serious criminal charges. The idea is to make sure they aren’t overwhelmed by their reentry or dangerous to the community. But our investigation reveals that the program’s conditions are so onerous, they’ve created a form of legal limbo for patients, who often have to ask for permission to drive, work, open a bank account, travel or date.

“Police murdered my father three decades ago.” Aulzue “Blue” Fields was just 8 years old when his father died after being beaten by police. The episode traumatized him, infuriated him and pushed him into a life of crime and violence. Like his father, Fields served time behind bars before rehabilitating himself. He now works at a South Carolina non-profit organization dedicated to helping the formerly incarcerated avoid a return to prison. If his father hadn’t died the way he did, “I don’t think I would have grown up with such distorted views about society, White people and especially police,” Fields writes.

“It is building relationships with folks that haven’t had a voice before now.” Even when local officials embrace the need for sweeping reforms in prisons and jails, changes don’t come swiftly. The few reformers who have taken steps to make their prisons and jails safer say they started with small changes designed to chip away at a culture of brutality and indifference among corrections staff. In many places, it’s too soon to tell whether those changes will take hold.

When should first responders be held accountable for deaths in police custody? A Colorado grand jury this month indicted two paramedics for allegedly failing to adequately treat Elijah McClain after he was rendered unconscious by police officers in 2019. Such prosecutions are extremely rare, even as victims of police misconduct focus more on in-custody mistreatment by first responders. Wrongful death or injury claims against medical providers are usually resolved through civil litigation or disciplinary action. “At the heart of it, that is what we call medical malpractice or negligence,” says a lawyer who represents EMTs.

There are fewer people behind bars today than there were a decade ago. Census figures show a 13% drop in the number of incarcerated people since 2010, a drop of nearly 300,000 people, our new analysis finds. Roughly one-third of the drop came in two of the biggest states, New York and California. Incarceration rates rose in only four states: West Virginia, Alaska, Nebraska and Arkansas. The arrival of the coronavirus helped fuel some drops in prison populations. The question is whether that will change once the pandemic eases.

THE BEST OF THE REST

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

There is so much to read about the humanitarian crisis at Rikers Island, from explainers to data stories to first-person accounts to mayoral candidate Eric Adams’s strange dodges to my colleague Beth Schwartzapfel’s effort on Twitter to light candles for the dead. At the New York Times, columnist Ginia Bellafante was one of the few reporters to look ahead from the current mess at what comes next for incarceration in America’s biggest city. Assuming Adams takes office next year, he’ll have to decide the fate of Bill de Blasio’s plan to replace the jails at Rikers Island with smaller facilities around the city. I followed the planning effort in 2019, and the difficulties have not changed, from residents who don’t want jails in their neighborhoods, to the challenge of re-training corrections officers so you don’t just get “little Rikers around the city.” The new jail plan demands that only 3,500 people are in jail at any given time, while the current number may soon reach 6,000. Adams will have some tough choices to make. — Maurice Chammah, staff writer

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 Indian Child Welfare Act of 1978 violates equal protection under the Fifth Amendment and the anti-commandeering doctrine of the 10th Amendment and whether BB&T’s arbitration agreement as to a predecessor bank’s accountholders is valid under the Federal Arbitration Act.

Four petitions involve a decision by the en banc U.S. Court of Appeals for the 5th Circuit striking down some provisions of the Indian Child Welfare Act. Congress passed ICWA to respond to concerns that state child-welfare practices were causing large numbers of Native American children to be inappropriately removed from their families and tribes and placed with non-Native foster families or adoptive parents. ICWA established minimum federal standards for most child-custody proceedings involving Native American children.

In March 2018, three states and seven individuals challenged many provisions of ICWA as unconstitutional. Although the district court largely agreed with the challengers, the en banc 5th Circuit later upheld various provisions. However, the en banc 5th Circuit also affirmed — at times with a majority, at times by an equally divided court — other rulings by the district court. According to the 5th Circuit, some ICWA provisions violate the 10th Amendment because they impermissibly “commandeer” the states. Those provisions include, among others, a requirement that state agencies bear the cost and burden of providing expert testimony to justify placing Native children in foster care, a requirement that state agencies provide remedial services to Native families, and a requirement that state agencies maintain certain child-placement records. The 5th Circuit also affirmed the district court’s judgment that ICWA’s preference for adoptive placement with “other Indian families” and “Indian foster home[s]” violates the equal-protection component of the Fifth Amendment.

In Haaland v. Brackeen, the federal government asks the justices to review and to reverse the 5th Circuit. In addition to disputing the rulings under the Fifth and 10th Amendments, the government argues that the individual plaintiffs do not have legal standing to challenge ICWA’s placement preferences for “other Indian families” and “Indian foster home[s].” In Cherokee Nation v. Brackeen, the Cherokee Nation and three other tribes have filed a companion petition in defense of ICWA’s constitutionality. In Texas v. Haaland, Texas has filed a petition asking the justices to review ICWA provisions that, in the state’s view, the 5th Circuit erroneously upheld. Finally, in Brackeen v. Haaland, the individual challengers have filed their own petition for review.

In Branch Banking & Trust Company v. Sevier County Schools Federal Credit Union, BB&T asks the justices to review a decision of the U.S. Court of Appeals for the 6th Circuit invalidating BB&T’s modification to its bank services agreement to resolve disputes with accountholders through arbitration. To the 6th Circuit, the modification, though now nearly 20 years old, was invalid as to the accountholders whose accounts pre-dated the modification because their original agreement (with a predecessor bank) did not include any sort of dispute-resolution provision at all. BB&T argues that this reasoning conflicts with the Supreme Court’s modern Federal Arbitration Act jurisprudence.

These and other petitions of the week are below:

Ortiz v. Breslin
20-7846
Issues: (1) Whether the 14th Amendment prohibits prison authorities from indefinitely detaining supervisees based on an assumption that a municipality will not provide legally-mandated compliant housing; and (2) whether the Eighth Amendment bars prison authorities from extending incarceration for individuals based on their homelessness and indigence.

Belmora LLC v. Bayer Consumer Care AG
21-195
Issues: (1) Whether, in view of the principle of trademark territoriality, the zone of interests encompassed by Lanham Act Sections 43(a) and 14(3) extends to the foreign owner of a foreign trademark that has not registered or used the mark in the United States; and (2) whether, in the absence of an express limitations period in the Lanham Act, the timeliness of a Section 43(a) suit for false association and false advertising is governed by the most analogous state-law statute of limitations, or instead, by laches.

Branch Banking & Trust Company v. Sevier County Schools Federal Credit Union
21-365
Issue: Whether the Federal Arbitration Act displaces a state common-law rule forbidding companies from adding an arbitration requirement to their standard-form contract with customers unless the contract already includes a dispute-resolution clause.

Haaland v. Brackeen
21-376
Issues: (1) Whether various provisions of the Indian Child Welfare Act of 1978 — namely, the minimum standards of Section 1912(a), (d), (e), and (f); the placement-preference provisions of Section 1915(a) and (b); and the recordkeeping provisions of Sections 1915(e) and 1951(a) — violate the anticommandeering doctrine of the 10th Amendment; (2) whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families” and for “Indian foster home[s]”; and (3) whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.

Cherokee Nation v. Brackeen
21-377
Issues: (1) Whether the en banc U.S. Court of Appeals for the 5th Circuit erred by invalidating six sets of Indian Child Welfare Act provisions — 25 U.S.C. §§1912(a), (d), (e)-(f)1915(a)-(b), (e), and 1951(a) — as impermissibly commandeering states (including via its equally divided affirmance); (2) whether the en banc 5th Circuit erred by reaching the merits of the plaintiffs’ claims that ICWA’s placement preferences violate equal protection; and (3) whether the en banc 5th Circuit erred by affirming (via an equally divided court) the district court’s judgment invalidating two of ICWA’s placement preferences, 25 U.S.C. §1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard of Morton v. Mancari.

Texas v. Haaland
21-378
Issues: (1) Whether Congress has the power under the Indian commerce clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian; (2) whether the Indian classifications used in the Indian Child Welfare Act and its implementing regulations violate the Fifth Amendment’s equal-protection guarantee; (3) whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring states to implement Congress’s child-custody regime; and (4) whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress.

Texas v. Commissioner of Internal Revenue
21-379
Issues: (1) Whether an agency rule delegating rulemaking authority to a private entity violates the nondelegation doctrine; and (2) whether the statute of limitations applicable to a challenge to an agency rule that delegates rulemaking authority to a private entity starts to run when the agency delegates the authority or when the private entity exercises the delegated authority.

Brackeen v. Haaland
21-380
Issues: (1) Whether the Indian Child Welfare Act of 1978’s placement preferences — which disfavor non-Indian adoptive families in child-placement proceedings involving an “Indian child” and thereby disadvantage those children — discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement — the “virtually exclusive province of the States,” as stated in Sosna v. Iowa — and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.

Weiss v. National Westminster Bank, PLC
21-381
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel to the petitioners in this case.
Issue: Whether a person who knowingly transfers substantial funds to a designated foreign terrorist organizations aids and abets that organization’s terrorist acts for purposes of civil liability under Justice Against Sponsors of Terrorism Act.

Strauss v. Credit Lyonnais, S.A.
21-382
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel to the petitioners in this case.
Issue: Whether a person who knowingly transfers substantial funds to a designated foreign terrorist organizations aids and abets that organization’s terrorist acts for purposes of civil liability under Justice Against Sponsors of Terrorism Act.

Posted in FeaturedCases in the Pipeline

Cases: Ortiz v. BreslinBelmora LLC v. Bayer Consumer Care AGBranch Banking & Trust Company v. Sevier County Schools Federal Credit UnionHaaland v. BrackeenCherokee Nation v. BrackeenTexas v. HaalandTexas v. Commissioner of Internal RevenueBrackeen v. HaalandWeiss v. National Westminster Bank, PLCStrauss v. Credit Lyonnais, S.A.

Recommended Citation: Andrew Hamm, Four petitions on the constitutionality of the Indian Child Welfare Act, SCOTUSblog (Sep. 24, 2021, 2:59 PM), https://www.scotusblog.com/2021/09/four-petitions-on-the-constitutionality-of-the-indian-child-welfare-act/

Eight players indicted for fixing 1919 World Series. Click for report from history.com

The House is in session on September 20, 21 and 22. The Senate is in session September 21 and 22.

The Senate Judiciary Committee meets at 9:30 a.m., September 20 for a public hearing on probation reform as well as recommendations of the County Adult Probation and Parole Advisory Committee. Click to livestream.

Click for Pennsylvania Bulletin for September 18, 2021.

Bi-partisan election reform bill introduced by Senators David Argyll (R-Schuykill) and Sharif Street (D-Philadelphia).

Click for text of Senate Bill 878

Click for Memorandum

Click for report from Associated Press

Senator Katie Muth (D-Berks, Chester, Montgomery) introduces bill to establish state-wide rape kit tracking system.

Click for text of Senate Bill 860

Click for Memorandum

Senate Maria Collet (D-Bucks, Montgomery) introduces bill to prohibit LGBTQ+ panic defense.

Click for text of Senate Bill 854

Click for Memorandum

September 20, 2021 | 7:00 PM – 8:00 PM

Virtual Forum | Zoom
Pennsylvanians for Modern Courts and the Free Library of Philadelphia will host a virtual forum with the candidates for all of Pennsylvania’s appellate courts, including the Supreme Court, Superior Court and Commonwealth Court. All of the candidates on the ballot will participate, and attendees will have the opportunity to submit questions for the candidates.
Register Now
The Candidates
Supreme Court

Hon. P. Kevin Brobson
Pennsylvania Commonwealth Court President Judge

Hon. Maria C. McLaughlin
Pennsylvania Superior Court Judge
Superior Court

Hon. Timika Lane
Philadelphia County Court of Common Pleas Judge

Megan Sullivan
Deputy Attorney General
Commonwealth Court

Hon. J. Andrew Crompton
Pennsylvania Commonwealth Court Judge

Hon. Lori A. Dumas
Philadelphia County Court of Common Pleas Judge

Hon. David L. Spurgeon
Allegheny County Court of Common Pleas Judge

Stacy Sorokes Wallace
Attorney
Moderator

Maureen McBride
Partner, Lamb McErlane PC
Co-Chair, Pennsylvania Bar Association Appellate Advocacy Committee
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Revisiting the Attica riot in real time, 50 years later. We’ve been tracking in real time on Twitter the events of the prison uprising in upstate New York that took place half a century ago. It culminated on Sept. 13, 1971, when state troopers stormed the penitentiary to try to wrest back control from prisoners. In the latest in our “Looking Back” series, Tom Meagher and Pedro Burgos walk us through the @atticaghosts timeline.

The Marshall Project wins a Sheehan Award for investigative reporting. The National Press Club, which administers the award, cited two of our recent projects: Our Pulitzer Prize-winning series, Mauled: When Police Dogs Are Weapons, and our Goldsmith Award-winning reporting on violence and dysfunction in the Mississippi Prison System. “We are grateful for this recognition of our work,” said Susan Chira, TMP’s Editor-in-Chief.

THE BEST OF THE REST

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

The horrors of Rikers Island receive disproportionate attention — if only because New York City has a lot of media outlets — but jails throughout the country are in crisis. At the Riverfront Times, reporter Ryan Krull details a severe beating of a young man in a St. Louis jail, and zooms out on what makes such violence possible, from guard shortages to broken locks to the smuggled-in drug K2. Krull shows remarkable care in reporting on mental illness, attempting to preserve the anonymity of his primary subject, as well as his mother, so that he remains safe. The Riverfront Times is one of the last robust alt-weeklies around, and it’s a shame: This week brought nauseating stories from jails in CaliforniaWisconsin, and Georgia, all of which deserve a deep dive. — Maurice Chammah, staff reporter

In 1960, Robert Fuller gunned down five Black men in his front yard in Monroe, Louisiana, killing four. Students at Louisiana State University teamed up with the Mississippi Center for Investigative Reporting in “Killings on Ticheli Road,” a cold case narrative that radiates injustice, outrage and impunity. Fuller said he killed in self-defense. In truth, the five men worked in Fuller’s septic tank business and had come to demand back wages. Fuller waltzed out of the massacre scot-free after a grand jury declined to bring charges — but they did indict the sole survivor for attempted murder. Fuller went on to be the state leader of the Original Ku Klux Klan of America, Inc. There was no justice in this case, but at least there’s now a solid historical record. — Joseph Neff, staff reporter

What does it take for single moms living in poverty to apply for basic government help for her and her kids? In many cases, they are forced to identify the father of their children and when they got pregnant, among other deeply personal details. The government asks those questions in order to extract child support from the fathers, but instead of giving that money to the mother and the kids, the government will pocket it as reimbursementFor ProPublica, our former colleague Eli Hager found that women who are afraid of their children’s father or who don’t want to get them in trouble can be punished by receiving a smaller amount of aid, or lose aid all together. — Weihua Li, data reporter

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 Constitution limits court-martial jurisdiction over retired servicemembers, whether a plaintiff must prove prejudice to show that a defendant waived a right to arbitrate, and whether an airport supervisor who occasionally handles passenger baggage is a “transportation worker” exempt from arbitration.

Begani v. United States considers constitutional limits to military courts’ jurisdiction over retired servicemembers. Stephen Begani worked as a government contractor after 24 years of active-duty service. Special agents of the Naval Criminal Investigative Service arrested Begani in a sting at a Marine Corps air base, where he had expected to meet a minor with whom he had exchanged sexually charged messages. Begani was tried and convicted by court-martial. A panel of the Navy-Marine Corps Court of Criminal Appeals ruled that the court-martial violated Begani’s constitutional right to equal protection, but the en banc NMCCA disagreed and affirmed his conviction. The U.S. Court of Appeals for the Armed Forces also affirmed, noting that Begani is “still paid” by the military and “required to maintain military readiness” — though Begani disputes the latter characterization. In his petition, Begani asks the Supreme Court to review this decision and to limit military jurisdiction over retirees.

In 2011’s AT&T Mobility LLC v. Concepcion, Justice Antonin Scalia wrote for the majority that the Federal Arbitration Act requires lower courts to “place arbitration agreements on an equal footing with other contracts.” In Morgan v. Sundance, Inc., plaintiffs argue that lower courts have violated AT&T by making it harder to prove that a defendant has waived an arbitration clause than is necessary to prove waivers of other clauses. In this case, Robyn Morgan, who worked at a Taco Bell franchise owned by Sundance, Inc., filed a putative class action in federal court under the Fair Labor Standards Act. Sundance moved to dismiss and later filed an answer to her complaint, making various arguments but not insisting on arbitration. After mediation did not lead to settlement, Sundance moved to compel individual arbitration of Morgan’s claims. Although the district court ruled that Sundance had waived its arbitration argument by not making it earlier, the U.S. Court of Appeals for the 8th Circuit reversed because of “the absence of a showing of prejudice to Morgan.” In her petition, Morgan argues that lower courts are split on whether prejudice is a requirement to prove that a party has waived an argument, and that regardless, prejudice is not a required factor for waiver of other contractual clauses.

Southwest Airlines Co. v. Saxon presents the justices with another case involving the Federal Arbitration Act and a suit under the Fair Labor Standards Act. The FAA’s support of arbitration agreements contains an exemption for the “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The Supreme Court has said that the exemption’s residual clause, “any other class of workers,” refers only to “transportation workers,” but it has not further defined “transportation worker.” The present case developed from a wage dispute between Southwest Airlines Co. and Latrice Saxon, a ramp agent supervisor. In her role, she trains, supervises, and sometimes assists ramp agents in loading and unloading passenger baggage from airplanes. After Saxon filed suit in federal court under the FLSA, Southwest moved to dismiss in favor of arbitration. The district court agreed with Southwest that Saxon was not a transportation worker because she “did not physically transport goods at all, let alone out-of-state.” The U.S. Court of Appeals for the 7th Circuit reversed on the ground that “cargo loaders generally are a class of workers engaged in the actual transportation of goods,” including supervisors who occasionally load and unload baggage. Arguing that lower courts are split on the meaning of “transportation worker,” Southwest asks for review.

These and other petitions of the week are below:

Southwest Airlines Co. v. Saxon
21-309
Issue: Whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods themselves, are interstate “transportation workers” exempt from the Federal Arbitration Act.

Willis v. United States
21-311
Issues: (1) Whether the discretionary-function exception of the Federal Tort Claims Act shields the government from suit whenever a government agent fails to fulfill a mandatory duty that applies only in certain circumstances, on the theory that the agent must have determined those circumstances did not exist; and (2) whether the discretionary-function exception shields a government agent’s undisputed failure to exercise discretion.

Volkswagen Aktiengesellschaft v. Ohio, ex rel. Yost
21-312
Issue: Whether the Clean Air Act preempts state and local governments from regulating manufacturers’ post-sale, nationwide updates to vehicle emission systems.

Morgan v. Sundance, Inc.
21-328
Issue: Whether the arbitration-specific requirement that the proponent of a contractual waiver defense prove prejudice violates the Supreme Court’s instruction in AT&T Mobility LLC v. Concepcion that lower courts must “place arbitration agreements on an equal footing with other contracts.”

Begani v. United States
21-335
Issue: Whether the Constitution permits the court-martial of retired servicemembers for offenses committed after their discharge from active duty.

September 24, 1789. President Washington signs the Judiciary Act establishing the Supreme Court of the United States. Click for report from history.com.

Supreme Court rules on admissibility on rebuttal of forensic interview of child victim of sexual assault.

The House has a nonvoting session on September 15. The House and Senate return to session on September 20.

Senate Bill 855 concerning Firearms Safety Training is introduced. Click for text of bill.

Click for Pennsylvania Bulletin for September 11, 2021

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“I am always surrounded by people, yet I feel utterly alone.” For Tariq MaQbool, a Pakistani American Muslim serving a life sentence for double homicide, the fall of the Twin Towers on 9/11 ushered in an era of bigotry aimed at him in New Jersey’s criminal justice system. He faced it from the lawyers who handled his case — on both sides. He faced it from fellow prisoners and from corrections officers charged with protecting him. He even faced it from fellow Muslim prisoners. “Every terror attack by extremist Muslims was placed squarely on my shoulders,” writes MaQbool.

From final meals to final words. Most of the details of modern U.S. executions are based not on legal precedent, but on tradition and bureaucratic choice. Corrections officials decide what the condemned can eat, who they can see, how they can pray and even when and whether they can speak before being killed. Unsurprisingly, there’s been a great deal of litigation over these choices, some of which are still unsettled. For example, the Supreme Court delayed the execution of Texas death row prisoner John Henry Ramirez this week so they can hear his case claiming a violation of religious freedom. Ramirez wants his Baptist pastor to lay hands on him when he dies. Texas executioners so far have denied the request.

The Attica uprising, 50 years later. Fifty years ago this week, the men imprisoned at the Attica Correctional Facility in upstate New York took control of the prison, demanding reform and holding staff hostage. By the time the dramatic standoff ended, more than 40 prisoners and hostages were dead. The Marshall Project is revisiting the events of the historic uprising, minute-by-minute, for the next few days on Twitter: @ATTICASGHOSTS.

THE BEST OF THE REST

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

It’s not uncommon these days for a Democratic district attorney to score political points by saying he or she will never seek the death penalty. But in Utah, a Republican prosecutor made such a pledge this week, in what Deseret News columnist Jay Evensen calls “possibly the reddest jurisdiction in America.” And Republican legislators are laying the groundwork to abolish the punishment in the entire state next year. These are not the first conservatives to oppose the death penalty, but they are making arguments I have not heard widely yet, about how executions give too much publicity to the person who committed the crime. “The answer to preventing these types of horrible crimes is in education and prevention, before they occur,” Utah County Attorney David Leavitt says in a new video. “ No family wants to hear, ‘My child is dead, and that man got a long sentence.’ What they want to hear is, ‘My child was never killed.’” Will these arguments catch on more widely on the right? — Maurice Chammah, staff writer

PETITIONS OF THE WEEK

By ANDREW HAMM

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether two North Carolina legislators may intervene in a case challenging the state’s voter-ID law, whether a Black man on death row may present new evidence of racial bias in his jury selection, and whether a veteran may seek disability benefits previously denied under a since-rejected regulatory interpretation.

Berger v. North Carolina State Conference of the NAACP addresses the ability of North Carolina legislators to defend the state’s voter-ID law from lawsuits under the Constitution and the Voting Rights Act. After plaintiffs challenged the law, the president pro tempore of the state senate and the speaker of the state house of representatives sought to intervene in the case as state agents under a state law. The en banc U.S. Court of Appeals for the 4th Circuit eventually affirmed the district court’s denial of the legislators’ attempt on the ground that the state attorney general was adequately defending the law. In their petition, the legislators argue that courts are split as to whether an official seeking to intervene in a case under a state law must prove that the state’s interest is not adequately represented.

In Broadnax v. Lumpkin, James Broadnax asks for the Supreme Court to review a lower-court decision that prevented him from introducing evidence that may have proved racial bias in his trial. Federal law curtails the extent to which a federal court can consider arguments that a prisoner has not presented in state court. In Broadnax’s case, a Texas court had already rejected his challenge that racial bias tainted his trial, in which a nearly all-white jury convicted him, a Black man, of murdering two white victims. Since his state challenge, the prosecuting office disclosed to Broadnax’s counsel its files on Broadnax’s jury selection that it had earlier claimed were privileged. The files included spreadsheets identifying potential jurors by race (and the state had struck each of the Black potential jurors from the jury pool). Both the district court and the U.S. Court of Appeals for the 5th Circuit did not consider Broadnax’s new evidence, however, because it was not part of the record before the state courts. Broadnax argues that the Supreme Court has left open whether new evidence can allow for new arguments in federal court.

In the 1970s, the Department of Veterans Affairs denied Kevin George’s claim for disability benefits on the basis of a VA regulation — one that the U.S. Court of Appeals for the Federal Circuit later struck down as contrary to the unambiguous statutory text. Since then, George has sought a reversal of the denial of his claim under a standard of “clear and unmistakable error.” The Federal Circuit rejected George’s argument on the ground that the VA had applied the law in existence at the time. In his petition, George counters that a federal court’s interpretation of an unambiguous statute is not a mere change in interpretation but declares what the law has always meant. The case is George v. McDonough.

These and other petitions of the week are below:

SNH SE Ashley River Tenant, LLC v. Arredondo
21-196
Issue: Whether the Federal Arbitration Act preempts the South Carolina Supreme Court’s arbitration-specific approach to construing comprehensive powers of attorney to preclude an agent’s power to agree to arbitrate future claims.

George v. McDonough
21-234
Issue: Whether, when the Department of Veterans Affairs denies a veteran’s claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, that is the kind of “clear and unmistakable error” that the veteran may invoke to challenge VA’s decision.

Berger v. North Carolina State Conference of the NAACP
21-248
Issues: (1) Whether a state agent authorized by state law to defend the state’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant; (2) whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion; and (3) whether petitioners Philip Berger, the president pro tempore of the state senate, and Timothy Moore, the speaker of the state house of representatives, are entitled to intervene as of right in this litigation.

Broadnax v. Lumpkin
21-267
Issue: Whether, under 28 U.S.C. § 2254(d) and Cullen v. Pinholster, a federal habeas petitioner may present evidence of a prosecutor’s racially discriminatory intent in support of a claim under Batson v. Kentucky when the evidence was not available to the petitioner during state court Batson proceedings.

Posted in Featured, Cases in the Pipeline

Cases: SNH SE Ashley River Tenant, LLC v. Arredondo, George v. McDonough, Berger v. North Carolina State Conference of the NAACP, Broadnax v. Lumpkin

Recommended Citation: Andrew Hamm, North Carolina’s voter-ID lawsuit, racial bias in juries and a veteran’s disability claim, SCOTUSblog (Sep. 3, 2021, 7:28 PM), https://www.scotusblog.com/2021/09/north-carolinas-voter-id-lawsuit-racial-bias-in-juries-and-a-veterans-disability-claim/

SUPREME COURT BLOCKS EXECUTION, WILL CONSIDER INMATE’S RELIGIOUS LIBERTY CLAIMS

Inmate requested that his pastor pray out loud and put his hands on inmate’s body during execution. The Justices are now poised to weigh in more definitively on the rights of inmates to have spiritual advisers at their side in their final moment. Click for full report by Amy Howe on SCOTUSBLOG.

September 13, 1971. Massacre at Attica Prison. Click for report from history.com.

The House returns to session on September 27. The Senate returns to session on September 20.

The Pennsylvania Commission on Sentencing meets September 8 and 9 in State College.

The Commission on Sentencing will hold a Policy Meeting Wednesday, September 8th, from 1:00 to 5:00 p.m.

It will be live streamed.  View using this link:  Click here

It will also hold a Policy Meeting Thursday, September 9th starting at 9:00 a.m..  The Quarterly Meeting will begin at approximately 11:00 a.m.

These meetings will be live streamed.  View using this link:  Click here

If you wish to make a public comment during the public comment period during the Quarterly Commission Meeting, please register   Click here.

Click for Pennsylvania Commission on Sentencing Website.

Click for Pennsylvania Bulletin for September 4, 2021.

THE BEST OF THE MARSHALL PROJECT

Black Americans die at higher rates than White Americans at nearly every age. Black infants, especially, are affected by the disparity, which has persisted through centuries of racism and the unequal distribution of healthcare. Part of the problem traces back to the 1910 Flexner Report commissioned by the American Medical Association. In an effort to improve medical care for all, the report undermined health care for Black people by narrowing the medical field both in total numbers of doctors and in the racial and class diversity within their ranks. In collaboration with The New York Times, Anna Flagg has our report.

The great police retirement trend that wasn’t. Police officials around the country have claimed for months that disheartened cops are quitting in droves because of anti-police sentiment and reforms created in the wake of George Floyd’s murder last year. Bureau of Labor statistics do not support that narrative. In collaboration with Time, Weihua Li and Ilica Mahajan look into the numbers: Last year, as the overall U.S. economy shed 6% of workers, local police departments lost just under 1% of employees after a decade of steady expansion, federal data reveals. No surprise, say experts, who point to the many financial considerations that make it inconvenient for cops to quit.

“Creating conditions for businesses not to succeed.” Some prison labor programs lose money even though prisoners are paid pennies an hour. Among other financial inefficiencies, the cost to pay the guards overseeing the workers can cut into profits. Meanwhile, prison laborers across the country say they aren’t learning skills that could help them on their release, undermining one of the justifications corrections officials give for persisting with money-losing operations. In collaboration with NBC News, Keri Blakinger has the latest in our “Inside Out” series.

THE BEST OF THE REST

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

I’ve long been fascinated by the levels of surveillance deployed in America’s business districts. If you’re curious to learn more about how giant retailer Target funded security cameras, forensics labs, and donated to police departments around the country, this piece by Peter Waldman and Lauren Etter is an excellent read. — Ilica Mahajan, data reporting fellow

For the last 18 months, public health experts, advocates, and reporters — including our own Anna Flagg and Joseph Neff — have been saying the same thing over and over again: Jails and prisons are incubators for the rampant spread of COVID-19. A new study shows just how many cases (millions) and deaths (tens of thousands) could have been prevented through relatively uncontroversial policy decisions, like keeping people accused of nonviolent crimes out of jail entirely. We’ll be talking about how mass incarceration supercharged the pandemic for years to come. NPR has a good overview of the study, but if you want to go deeper, you can find the entire thing here. — Maurice Chammah, staff reporter

PETITIONS OF THE WEEK

By ANDREW HAMM

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether two North Carolina legislators may intervene in a case challenging the state’s voter-ID law, whether a Black man on death row may present new evidence of racial bias in his jury selection, and whether a veteran may seek disability benefits previously denied under a since-rejected regulatory interpretation.

Berger v. North Carolina State Conference of the NAACP addresses the ability of North Carolina legislators to defend the state’s voter-ID law from lawsuits under the Constitution and the Voting Rights Act. After plaintiffs challenged the law, the president pro tempore of the state senate and the speaker of the state house of representatives sought to intervene in the case as state agents under a state law. The en banc U.S. Court of Appeals for the 4th Circuit eventually affirmed the district court’s denial of the legislators’ attempt on the ground that the state attorney general was adequately defending the law. In their petition, the legislators argue that courts are split as to whether an official seeking to intervene in a case under a state law must prove that the state’s interest is not adequately represented.

In Broadnax v. Lumpkin, James Broadnax asks for the Supreme Court to review a lower-court decision that prevented him from introducing evidence that may have proved racial bias in his trial. Federal law curtails the extent to which a federal court can consider arguments that a prisoner has not presented in state court. In Broadnax’s case, a Texas court had already rejected his challenge that racial bias tainted his trial, in which a nearly all-white jury convicted him, a Black man, of murdering two white victims. Since his state challenge, the prosecuting office disclosed to Broadnax’s counsel its files on Broadnax’s jury selection that it had earlier claimed were privileged. The files included spreadsheets identifying potential jurors by race (and the state had struck each of the Black potential jurors from the jury pool). Both the district court and the U.S. Court of Appeals for the 5th Circuit did not consider Broadnax’s new evidence, however, because it was not part of the record before the state courts. Broadnax argues that the Supreme Court has left open whether new evidence can allow for new arguments in federal court.

In the 1970s, the Department of Veterans Affairs denied Kevin George’s claim for disability benefits on the basis of a VA regulation — one that the U.S. Court of Appeals for the Federal Circuit later struck down as contrary to the unambiguous statutory text. Since then, George has sought a reversal of the denial of his claim under a standard of “clear and unmistakable error.” The Federal Circuit rejected George’s argument on the ground that the VA had applied the law in existence at the time. In his petition, George counters that a federal court’s interpretation of an unambiguous statute is not a mere change in interpretation but declares what the law has always meant. The case is George v. McDonough.

These and other petitions of the week are below:

SNH SE Ashley River Tenant, LLC v. Arredondo
21-196
Issue: Whether the Federal Arbitration Act preempts the South Carolina Supreme Court’s arbitration-specific approach to construing comprehensive powers of attorney to preclude an agent’s power to agree to arbitrate future claims.

George v. McDonough
21-234
Issue: Whether, when the Department of Veterans Affairs denies a veteran’s claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, that is the kind of “clear and unmistakable error” that the veteran may invoke to challenge VA’s decision.

Berger v. North Carolina State Conference of the NAACP
21-248
Issues: (1) Whether a state agent authorized by state law to defend the state’s interest in litigation must overcome a presumption of adequate representation to intervene as of right in a case in which a state official is a defendant; (2) whether a district court’s determination of adequate representation in ruling on a motion to intervene as of right is reviewed de novo or for abuse of discretion; and (3) whether petitioners Philip Berger, the president pro tempore of the state senate, and Timothy Moore, the speaker of the state house of representatives, are entitled to intervene as of right in this litigation.

Broadnax v. Lumpkin
21-267
Issue: Whether, under 28 U.S.C. § 2254(d) and Cullen v. Pinholster, a federal habeas petitioner may present evidence of a prosecutor’s racially discriminatory intent in support of a claim under Batson v. Kentucky when the evidence was not available to the petitioner during state court Batson proceedings.

Posted in FeaturedCases in the Pipeline

Cases: SNH SE Ashley River Tenant, LLC v. ArredondoGeorge v. McDonoughBerger v. North Carolina State Conference of the NAACPBroadnax v. Lumpkin

Recommended Citation: Andrew Hamm, North Carolina’s voter-ID lawsuit, racial bias in juries and a veteran’s disability claim, SCOTUSblog (Sep. 3, 2021, 7:28 PM), https://www.scotusblog.com/2021/09/north-carolinas-voter-id-lawsuit-racial-bias-in-juries-and-a-veterans-disability-claim/

Politico: How progressives are knocking out local judges across the country. Click for full report.

September 9, 1850. California admitted to the Union as 31st State.

PA Supreme Court rules that evidence that a parent allowed her child to ride in a car-for-hire without being restrained by a child safety seat (“car seat”) is, without more, not sufficient to support conviction for endangering welfare of children.

Click for Opinion by Justice Todd.

Click for Concurring Opinion by Justice Saylor

Click for Concurring Opinion by Justice Dougherty

Click for Concurring Opinion by Justice Wecht

Click for Dissenting Opinion by Justice Mundy

PA Supreme Court allows the President Judge of the Court of Common Pleas of Philadelphia County to suspend Pa.R.Crim.Pro. 600 as well as state or local rules that restrict use of advanced communication technology, subject to state and federal constitutional limitations, through October 1, 2021.

Click for Order.

November 1 is deadline to comment on proposed new Rules of Judicial Administration 104-115. The proposal would repeal or modify corresponding Criminal, Appellate, Evidence, Civil, Juvenile and Orphans Court rules.

Click for text and final report.

October 4 is deadline to comment on Proposed New Pa.R.Crim.P. 490.2 and 790.2 Proposed Amendment of Pa.R.Crim.P. 490, 790, and 791 concerning expungements.

Click for text and explanation.

State Senator Sharif Street introduces bill for Medical Parole.

Senate Bill 835 would empower the State Board of Probation and Parole to grant parole to an individual who is at least 55 years old, and has served at least half of his minimum sentence or 25 years in prison, which ever is less, and such release would not constitute a safety hazard.  Parole could be granted due to medical or cognitive status.  The Office of Victim Advocate and registered victims of the offense at issue would have the right to be notified and participate in the parole process.  Presently, such requests for medical or humane parole go before the trial Judge. Click for memorandum to colleagues from Senator Street.


Legislative Reapportionment Commission rules that state inmates will be considered residents of the districts where they are from rather than where prisons are located.  Click for full report from timesonline.com.

The information below is from Crisci Associates PA Capitol Digest.

The House returns to session on September 27. The Senate returns to session on September 20.

Click for Pennsylvania Bulletin for August 28, 2021

themarshallproject.org

THE BEST OF THE MARSHALL PROJECT

A death as complicated and unyielding as a life. Mia Armstong has read the clinical reports that say her beloved uncle Brian died of “sudden cardiac arrest” just hours after he was released from the Gila County Jail in Arizona in January. She knows he tested positive for COVID-19 when he died. But she also knows there was nothing sudden about her uncle’s health problems, his mental illness and substance use, or the way he couldn’t get the care he needed as he cycled in and out of the hospital and jail cells.

THE BEST OF THE REST

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

It may surprise exactly zero people who regularly read the Marshall Project that some prisoners are forced to work for no pay. But Houston Chronicle business columnist Chris Tomlinson (full disclosure: he’s a friend) used the news of President Biden’s ban on products made with slave labor in Chinese prisons to urge Texans to look in the mirror. Incarcerated people in the state make everything from office chairs to barbecue grills, which are then mostly sold to a variety of other local, state, and federal institutions, bringing in more than $70 million per year. Refusing to work can mean more time in prison. Tomlinson’s scathing op-ed shows that ending prison labor will involve a much deeper reckoning with how our governments do business. — Maurice Chammah

PETITIONS OF THE WEEK By ANDREW HAMM

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, how the First Amendment constrains taxes on billboard owners, whether the “mailbox rule” applies to prisoners represented by counsel, and the scope of district courts’ jurisdiction over expungement motions.

In November, the court will hear argument in City of Austin v. Reagan National Advertising of Texas, a First Amendment challenge to an Austin regulation that bars some digitized billboards but allows others depending on the billboard’s location. A new petition asks the court to take up another challenge to a city policy that involves differential treatment of signs.

The city of Baltimore taxes the owners of displays that advertise services that occur in a different location, meaning many billboards but not other types of signs. One of the country’s largest billboard-advertising companies challenged the tax under the First Amendment. Applying a relaxed standard, Maryland’s highest court upheld the tax as rationally related to the city’s legitimate interest in raising public revenue. In its petition, the billboard owner, one of four such companies in Baltimore, argues that a heightened standard should apply. The company also argues that Baltimore’s distinction between on-premises signs and off-premises signs is “even more problematic” than the one presented in Austin. The case is Clear Channel Outdoor, LLC v. Raymond.

Under the mailbox rule, a prisoner’s filing is timely if mailed by the due date, even if it arrives late to the court. In Cretacci v. Call, Blake Cretacci argues that a circuit split has arisen as to whether the rule applies to prisoners represented by counsel. Cretacci, a pre-trial detainee, submitted to the inmate mail system a civil complaint before the statutory deadline on his claims, but the pleading arrived at the district court too late. Although a lawyer had helped Cretacci to prepare the complaint, Cretacci had filed “pro se” (representing himself) because the lawyer was not a member of the relevant bar. The U.S. Court of Appeals for the 6th Circuit denied Cretacci the benefit of the mailbox rule on the ground that he was sufficiently represented by counsel. Cretacci asks the justices to review and reverse this holding.

Valueland Auto Sales, Inc. v. United States concerns the scope of jurisdiction in federal criminal cases. In 2013, the federal government indicted Ron Benit and Valueland Auto Sales on charges that they structured cash deposits at banks to avoid filing required reports, and it seized over $70,000 of their funds. The government later dismissed all charges and returned all the funds. Benit and Valueland then moved to expunge the records of their indictment. However, the district court determined that it did not have any jurisdiction over the expungement motions because the charges had been dropped, a ruling that the 6th Circuit affirmed. Arguing that a circuit split exists over this issue that is important and recurring, Benit and Valueland ask the Supreme Court to reverse the 6th Circuit’s decision.

These and other petitions of the week are below:

Mohamud v. Weyker
21-187
Issue: Whether a constitutional remedy is available against federal officers for individual instances of law enforcement overreach in violation of the Fourth Amendment.

Valueland Auto Sales, Inc. v. United States
21-211
Issue: Whether, when the district court dismisses all criminal charges against a defendant, that court has jurisdiction over a motion to expunge the records relating to those charges, as held by the U.S Courts of Appeals for the 2nd, 10th and D.C. Circuits, or whether the district court lacks jurisdiction over such motions, as held by the U.S. Courts of Appeals for the 1st, 3rd, 4th, 5th, 6th, 7th and 11th Circuits.

Clear Channel Outdoor, LLC v. Raymond
21-219
Issue: Whether a tax singling out off-premises billboards is subject to heightened scrutiny under the First Amendment.

Cretacci v. Call
21-221
Issue: Whether a prisoner who submits a filing through the prison mail system loses the benefit of the mailbox rule if he has counsel.

Posted in FeaturedCases in the Pipeline

Cases: Mohamud v. WeykerValueland Auto Sales, Inc. v. United StatesClear Channel Outdoor, LLC v. RaymondCretacci v. Call

Recommended Citation: Andrew Hamm, Billboard taxes, the mailbox rule and expungement jurisdiction, SCOTUSblog (Aug. 27, 2021, 9:12 PM), https://www.scotusblog.com/2021/08/billboard-taxes-the-mailbox-rule-and-expungement-jurisdiction/

September 1, 1807. Former Vice President Aaron Burr acquitted of treason. Click for report from history.com.

The information below is from Crisci Associates PA Capitol Digest.

The House is in recess until September 27. The Senate is in recess until September 20.

Click for Pennsylvania Bulletin of August 21, 2021.

HEADLINES FROM CRISCI ASSOCIATES

US Appeals Court Revives Lawsuit Over Gun Club Restrictions

THE BEST OF THE MARSHALL PROJECT

For the past year, The Marshall Project’s Alysia Santo and the Kentucky Center for Investigative Reporting’s R.G. Dunlop have been investigating police shootings in rural America. This week, we published our investigative series in collaboration with the KyCIR’s, The New York Times and the Lexington Herald-Leader:

Shooting first, asking questions later, in sparsely-populated communities. Police officers in rural areas of the country fatally shot about 1,200 people from 2015 through 2020. Although that’s a rate 30% lower than in urban areas when adjusted for population, the rural incidents mirrored many of the dynamics of police shootings that have come under scrutiny in cities. In Kentucky, where we focused our investigation, most of the victims of shootings by state troopers were White men. Many were armed, according to the Kentucky State Police, and they often suffered from drug addictions or mental health problems. State troopers who fired the deadly shots were rarely indicted or prosecuted in the cases we examined.

“Everybody knows everybody else.” One reason for the rarity of indictments or prosecutions may be that state police officials investigate their own officers’ shootings. There is no independent oversight.

THE BEST OF THE REST

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

My adopted home state of Louisiana has long been known as the incarceration capital of the world. Less well known is another miserable title we own: the highest in-custody mortality rate in the U.S., according to the Department of Justice. The New Yorker profiles Andrea Armstrong, a law professor at Loyola University in New Orleans who has helped build the first public-facing database of deaths in Louisiana parish jails. Author Eyal Press skillfully weaves Armstrong’s story with those who have lived and died in the custody of our state.

And while I’ve got your attention on The Pelican State, check out this feature from The Undefeated on New Orleans rapper Mac Phipps, who spent 21 years in state prison following a 10-2 non-unanimous jury verdict for a murder he says he didn’t commit. The piece by David Dennis Jr. follows the 44-year-old’s attempt to reintegrate into a city that changed a lot since his arrest in the year 2000. — Jamiles Lartey, staff writer

November Argument Calendar

By AMY HOWE

The Supreme Court on Monday released the schedule for the justices’ November argument session, which begins on Nov. 1 and runs through Nov. 10. The justices will hear oral arguments in nine cases over six days, including the argument in one of the highest-profile cases of the term so far, the challenge to a New York law that requires anyone who wants to carry a gun in the state to show a good reason for doing so. That case, New York State Rifle & Pistol Association v. Bruen, will be argued on Wednesday, Nov. 3.

The court did not indicate whether it would hear oral argument by telephone, as it has done since May 2020 because of the COVID-19 pandemic, or whether it would instead return to the courtroom for in-person arguments. However, the U.S. Court of Appeals for the District of Columbia Circuit announced on Friday that it would hold all oral arguments in September and October remotely because of the pandemic “and the latest public health guidance.”

Here’s a full list of the cases scheduled for argument in the November session:

Thompson v. Clark (Nov. 1): Whether a plaintiff seeking to recover under federal civil rights laws for an allegedly unconstitutional conviction or imprisonment must show that the criminal proceedings ended in a way that is “not inconsistent” with his innocence or instead in a way that affirmatively shows his innocence.

Shinn v. Ramirez (Nov. 1): In a case involving a ruling by the U.S. Court of Appeals for the 9th Circuit that gave one death row inmate a new hearing and required a new trial for another, the justices will weigh in on the impact of their 2012 decision in Martinez v. Ryan on the general rule that a federal court cannot consider evidence outside the state court record when reviewing a state prisoner’s claim for post-conviction relief.

Houston Community College System v. Wilson (Nov. 2): Whether the First Amendment limits a local government’s power to censure its members.

Badgerow v. Walters (Nov. 2): Whether federal courts have the power to confirm or vacate an arbitration award under Sections 9 and 10 of the Federal Arbitration Act, which provide procedures to enforce and vacate an arbitration award, when the only basis for that power is that the underlying dispute involved a federal issue.

New York State Rifle & Pistol Association v. Bruen (Nov. 3): Whether New York’s denial of the plaintiffs’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

FBI v. Fazaga (Nov. 8): Whether a provision of the Foreign Intelligence Surveillance Act trumps the state secrets privilege, which allows the government to block the release of sensitive national security information in litigation, and gives a federal district court the power to resolve (in private and without requiring all sides to be present) a lawsuit against the FBI by members of the Muslim community in southern California.

Unicolors, Inc. v. H&M (Nov. 8): Whether a copyright registration can only be invalidated based on an error when the registrant actually knew about the error when submitting the registration, or whether it is enough that the registrant had constructive knowledge of the error.

Pivotal Software v. Superior Court of California (Nov. 9): Whether the “discovery-stay provision” of the Private Securities Litigation Reform Act, which provides (as the name suggests) for a stay of discovery while a motion to dismiss is pending “[i]n any private action arising under” the Securities Act of 1933 applies to private cases in federal and state courts, or only to private cases in federal courts. [Disclosure: Goldstein & Russell, P.C., whose lawyers contribute to SCOTUSblog in various capacities, is counsel to the respondents in this case.]

City of Austin v. Reagan National Advertising (Nov. 10): Whether Austin’s “sign code,” which allows businesses to install digitized signs on site but bars digitized signs “off premises,” violates the First Amendment.

This article was originally published at Howe on the Court.

Posted in FeaturedMerits Cases

Cases: Thompson v. ClarkHouston Community College System v. WilsonNew York State Rifle & Pistol Association Inc. v. BruenFederal Bureau of Investigation v. FazagaShinn v. RamirezCity of Austin, Texas v. Reagan National Advertising of Texas Inc.Badgerow v. WaltersUnicolors, Inc v. H&M Hennes & Mauritz, LPPivotal Software, Inc. v. Superior Court of CA

Recommended Citation: Amy Howe, New York Second Amendment case headlines November argument calendar, SCOTUSblog (Aug. 16, 2021, 2:57 PM), https://www.scotusblog.com/2021/08/new-york-second-amendment-case-headlines-november-argument-calendar/

Petitions of the Week

By MITCHELL JAGODINSKI

Last year, the Supreme Court ruled 5-4 in McGirt v. Oklahoma that the eastern half of Oklahoma (nearly 43% of the state) qualifies as “Indian country” for the purposes of the Major Crimes Act. The court thereby stripped Oklahoma state courts of jurisdiction over crimes committed by “any Indian” in “Indian country,” and bestowed the federal government with exclusive jurisdiction to try these crimes. Now, Oklahoma alleges in Oklahoma v. Bosse that due to the fallout from McGirt, district courts are overwhelmed and numerous crimes are going uninvestigated and unprosecuted.

The state invokes Chief Justice Roberts’ McGirt dissent, which predicted that the burdens on the state and local governments would be “extraordinary.” As a result of McGirt, the state says, over 3,000 applications for postconviction relief have been filed, and the Oklahoma Department of Corrections has released custody of over 150 prisoners (almost half of whom have been set free). More fallout is still to come as approximately a quarter of the postconviction challenges involve crimes already beyond the federal statute of limitations. Currently, almost two million people in Oklahoma reside in areas affected by the McGirt ruling and only 10-15% of these people are Native Americans. The total population of Oklahoma is just under four million residents.

Oklahoma’s new petition involves Shaun Bosse, who is not a Native American. Bosse murdered his girlfriend, Katrina Griffin, who was a Native American, and her two young children. Bosse was convicted of three counts of murder in Oklahoma state court and sentenced to death; however, 10 years after the murders occurred, the Oklahoma Court of Criminal Appeals granted postconviction relief – based on McGirt – reasoning that the crime occurred against an Indian in Indian country, and the federal government thus has exclusive authority to prosecute. In response, Oklahoma requested and was granted an emergency stay, which allows the state to retain custody of Bosse while its cert petition is pending. Oklahoma claims the appellate court improperly extended McGirt by applying it to crimes committed by non-Native Americans and asks the justices to resolve the issue by overruling McGirt.

In July, we covered two petitions involving the Sixth Amendment’s confrontation clause – in the context of sexual assault nurse examiner testimony and accomplice testimony. An important feature of the confrontation clause is that it prevents admission of “testimonial” evidence unless the defendant has an opportunity to cross-examine their accuser. Wisconsin v. Jensen presents the justices with a new confrontation clause question over whether statements of fear about a possible future crime are “testimonial.”

Prior to Julie Jensen’s death, she told police that she was not suicidal and that if she died, her husband, Mark Jensen, should be considered a suspect. Julie later died and her husband was found guilty of her murder. Among the evidence presented at trial was a handwritten letter and voicemails to a police officer, in which Julie expressed fear that her husband was planning to kill her. The Wisconsin Supreme Court held that these statements were “testimonial hearsay” and thus inadmissible under the confrontation clause. The petition argues that other courts have held that statements about possible future crimes are almost never testimonial, and that the definition adopted by the Wisconsin Supreme Court is overly broad. The justices are asked for their review to consider whether forward-looking statements about future crimes should be considered testimonial.

Finally, Estate of Madison Jody Jensen v. Tubbs involves the scope of who is covered by the qualified immunity doctrine. Kennon Tubbs is a private medical doctor who provided medical services at a county jail in Utah. In 2016, Madison Jensen was arrested and detained on drug charges. Upon arrival at the jail, she began experiencing opioid withdrawal, but no medical treatment was provided. Four days later she died of dehydration, alone in her cell.

Madison’s estate sued Tubbs, alleging a constitutional rights violation under 42 U.S.C. § 1983. The district court found that the responsibility of Tubbs was a question of fact that should be decided by a jury. But the U.S. Court of Appeals for the 10th Circuit reversed, holding that qualified immunity barred the claim. This decision deepened an existing split over whether the doctrine is available to private medical professionals in prisons. The estate argues that doctors are subject to malpractice suits even for ordinary negligence, so Section 1983 liability should not be barred. The court is asked to resolve the split by determining whether private medical professionals may be entitled to qualified immunity.

These and other petitions of the week are below:

Rojas v. Federal Aviation Administration
21-133
Issue: Whether the 9th Circuit, in a sharply divided en banc decision, erred by adopting the consultant corollary and holding that “intra-agency memorandums or letters” in Freedom of Information Act’s Exemption 5 (5 U.S.C. § 552(b)(5)) encompasses documents prepared by APTMetrics, a private, outside consultant.

Estate of Madison Jody Jensen v. Tubbs
21-152
Issue: Whether private medical personnel working in correctional or mental-health facilities can assert qualified immunity.

Oklahoma v. Bosse
21-186
Issues: (1) Whether a state may impose procedural or equitable bars to postconviction relief on the claim that the state lacked prosecutorial authority because the crime of conviction occurred in Indian country; (2) whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country; and (3) whether McGirt v. Oklahoma, should be overruled.

Knights v. United States
21-198
Issues: (1) Whether a court analyzing if a Fourth Amendment seizure has occurred is categorically barred from considering a person’s race; and (2) whether a seizure occurred under all the circumstances of this case.

Behrman Capital IV, L.P. v. Reynolds
21-207
Issue: Whether the derivative jurisdiction doctrine precludes federal courts from exercising personal jurisdiction following removal from state courts that lacked personal jurisdiction “of the parties.”

Wisconsin v. Jensen
21-210
Issues: (1) Whether a person’s statement expressing fear about a possible future crime is testimonial under the Sixth Amendment’s confrontation clause; and (2) whether, when a person reports ongoing psychological domestic abuse and expresses fear about future physical harm, the person’s statement aimed at ending an ongoing emergency is non-testimonial.

Posted in FeaturedCases in the Pipeline

Cases: Rojas v. Federal Aviation AdministrationEstate of Madison Jody Jensen v. TubbsOklahoma v. BosseKnights v. United StatesBehrman Capital IV, L.P. v. ReynoldsWisconsin v. Jensen

Recommended Citation: Mitchell Jagodinski, Fallout from McGirt and testimony about future crimes, SCOTUSblog (Aug. 20, 2021, 8:48 PM), https://www.scotusblog.com/2021/08/fallout-from-mcgirt-and-testimony-about-future-crimes/

August 25, 1944. Paris is liberated from Germans. Click for report from history.com.

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