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

The information below is from Crisci Associates PA Capitol Digest

The House will be in session May 3, 4 and 5.

The House Judiciary Committee meets Tuesday at 10 a.m. to consider the following bills: Voting meeting on HB 930(missing children and DNA data bases), HB 940 (Titan’s law providing criminal penalties to taunt, injury or kill a police animal), HB 975 (institutional sexual assault), HB 1064 (contaband in county prisons), HB 1231 (correcting a DUI prosecution loophole created by Commonwealth v. Perfetto and any other business that may come before the committee.

The Senate will not be in session this week.

LAST WEEK

Governor Wolf signed into law The Living Donor Protection Act, as Act 11 of 2021. Click for text of Act.

Click for Pennsylvania Bulletin of May 1, 2021.

HEADLINES FROM CRISCI ASSOCIATES

Tougher Penalties Take Effect for Pennsylvania Drivers Who Fail to Move Over for Emergency Vehicles

What You Need to Know About the 2021 Statewide Judicial Races

What You Need to Know About the 2021 Primary Ballot Questions

THE BEST OF THE MARSHALL PROJECT

“We’re in a different era.” When the Supreme Court this month granted judges more discretion to impose life without parole sentences on young people convicted of murder, it altered nearly a decade’s worth of judicial and legislative momentum away from juvenile sentences. Days later, an Alabama judge re-resentenced Evan Miller — the plaintiff in the iconic 2012 case that struck down mandatory juvenile life without parole sentences — to life without parole.

Nothing like going to jail to make one feel like an American. Ravi Shankar lived a life of relative privilege before he was sentenced to 90 days in the Hartford Correctional Center in Connecticut for violating his probation. His time behind bars, in dirty, cramped conditions, made him empathize more with victims of racial discrimination. “There was a casual sadism that pervaded everyday life. It was meant to destabilize and confuse the incarcerated population and actively prevent healthy reintegration,” Shankar writes.

27% of the nation’s prison population has received at least one dose of the COVID-19 vaccine. At least 2,575 incarcerated people and at least 201 prison employees have died of the coronavirus in the last year. More than 396,000 people in prison have tested positive for the virus, an increase of less than 1% from last week, and 12 state

THE BEST OF THE REST

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

In Chicago, the news has been dominated by talk of a carjacking epidemic. The Chicago Police Department has promoted a narrative of young people running amok. But how much can the police really say about who is committing the crimes when only 15% of cases end in arrest? “It’s wrong, the way it’s being talked about,” University of Chicago sociologist Robert Vargas told stalwart Chicago journalist Maya Dukmasova. But is the evidence stronger than the politics of fear around the latest supposed crime trend? — David Eads, data editor

PETITIONS OF THE WEEK by ANDREW HAMM

SCOTUSblog, April 30, 2021

This week we highlight petitions that ask the Supreme Court to consider, among other things, whether doctors may argue “good faith” as a defense for violating the Controlled Substances Act in prescribing pain medication, whether the Philadelphia transit system can prohibit political advertisements on its buses, and whether an employee who is transferred to a new job with the same pay and benefits as before can bring a claim of employment discrimination.

In Ruan v. United States, Dr. Xiulu Ruan asks the justices to rule that “good faith” may provide a defense for a physician charged with violating the Controlled Substances Act in his prescription of pain relief. The U.S. Court of Appeals for the 11th Circuit rejects this defense, and so the district court in Ruan’s case only instructed the jury to decide whether Ruan’s actions were “not for a legitimate medical purpose” or “outside the usual course of professional medical practice” (the jury convicted Ruan). On appeal, Ruan asserts that good faith distinguishes civil liability for malpractice from criminal liability, that six circuits allow the defense, and that the 11th Circuit’s approach chills the legitimate practice of pain medicine.

In the 2018 case Minnesota Voters Alliance v. Mansky, the Supreme Court struck down a Minnesota ban on political apparel at polling places as a violation of the First Amendment. The U.S. Court of Appeals for the 3rd Circuit subsequently ruled that the Philadelphia public transit system’s prohibition on political advertisements was similarly unconstitutional. The case had emerged out of the Center for Investigative Reporting’s interest in advertising in buses with a 10-panel political cartoon protesting systemic racism in the mortgage market. Arguing that Mansky had approved of an earlier Supreme Court decision allowing transit authorities to prohibit such advertising, the transit system asks for the court’s review. The Southeastern Pennsylvania Transportation Authority v. Center for Investigative Reporting.

In Cole v. Wake County Board of Education, Wanza Cole claims that the Wake County Board of Education transferred her from a position as a school principal to one in the school system’s central office because she is Black. In the latter job, she had the same pay and benefits as before, but a new title, responsibilities, supervisor and workplace. The district court, affirmed by the U.S. Court of Appeals for the 4th Circuit, dismissed her suit for employment discrimination under Title VII of the Civil Rights Act on the ground that a lateral transfer is not an “adverse employment action.” Asking for the justices’ review, Cole argues that the circuits are split over the types of employer actions that count as discrimination “with respect to [an employee’s] compensation, terms, conditions, or privileges of employment.”

These and other petitions of the week are below:

Cole v. Wake County Board of Education
20-1373
Issue: Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination as to all “terms, conditions, or privileges of employment,” or its reach is limited to only discriminatory employer conduct that courts determine have significant detrimental effects on employees.

Southeastern Pennsylvania Transportation Authority v. Center for Investigative Reporting
20-1379
Issue: Whether the Supreme Court’s decision in Minnesota Voters Alliance v. Mansky overruled or abrogated the court’s holding in Lehman v. City of Shaker Heights that transit authorities have the discretion to categorically prohibit political advertisements.

Savage v. United States
20-1389
Issue: Whether the U.S. Court of Appeals for the 3rd Circuit properly held — in conflict with decades of federal practice endorsing flexible procedures to assemble a complete record on appeal — that an appellant seeking a complete appellate record must overcome procedural impediments lacking any basis in Federal Rule of Appellate Procedure 10’s text: namely, that when an appellant lacks any “means” to “prepare a statement of” untranscribed “proceedings” under Rule 10(c), the district court has no obligation to assist in reconstructing those proceedings unless the appellant first files a declaration “saying he does not remember what happened,” and that when an appellant wishes to review and supplement the record with undocketed trial correspondence in the district court’s possession, he must first show how the correspondence would “give rise to ‘any difference[s]’ about whether the record truly discloses what occurred in the district court.”

Sportswear Inc. v. Savannah College of Art and Design Inc.
20-1391
Issues: (1) Whether the scope of a federally-registered service mark extends to unrelated goods bearing that service mark; and (2) whether the defendant’s copying of a mark, without proof of consumer confusion as to the source of the parties’ goods or services, establishes trademark infringement merely because consumers recognize the mark.

PersonalWeb Technologies, LLC v. Patreon Inc.
20-1394
Issues: (1) Whether the U.S. Court of Appeals for the Federal Circuit correctly interpreted Kessler v. Eldred to create a freestanding preclusion doctrine that may apply even when claim and issue preclusion do not; and (2) whether the Federal Circuit properly extended its Kessler doctrine to cases in which the prior judgment was a voluntary dismissal.

Ruan v. United States
20-1410
Issue: Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

Recommended Citation: Andrew Hamm, Controlled substances, political ads and employee transfers, SCOTUSblog (Apr. 30, 2021, 4:31 PM), https://www.scotusblog.com/2021/04/controlled-substances-political-ads-and-employee-transfers/

Criminal Justice Executive Committee
VIDEO CONFERENCE

Wednesday, May 5
12:30 p.m.

Please register on the Philadelphia Bar Association’s website through this link

May 3, 1954. U.S. Supreme Court rules in Hernandez v. Texas, extending coverage of 14th Amendment to all people.

Click for report on history.com.

By Amy Howe
on April 26, 2021 at 10:50 am

Over a decade after it ruled that the Second Amendment protects the right to have a handgun in the home for self-defense, the Supreme Court agreed on Monday to decide whether the Constitution also protects the right to carry a gun outside the home. The justices’ announcement that they will take up a 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 sets the stage for a major ruling on gun rights in the court’s 2021-22 term.

The law at issue in the case, New York Rifle & Pistol Association v. Corlett, is similar to gun-control measures in other states. To receive an unrestricted license to carry a concealed firearm outside the home, a person must show “proper cause” – meaning a special need for self-protection. Two men challenged the law after New York rejected their concealed-carry applications, and they are backed by a gun-rights advocacy group. The U.S. Court of Appeals for the 2nd Circuit upheld the law, prompting the challengers to appeal to the Supreme Court.

After considering the case at three conferences, the justices agreed to weigh in. They instructed the parties to brief a slightly narrower question than the challengers had asked them to decide, limiting the issue to whether the state’s denial of the individuals’ applications to carry a gun outside the home for self-defense violated the Second Amendment. But the case nonetheless has the potential to be a landmark ruling. It will be argued in the fall, with a decision expected sometime next year.

The announcement came just one day short of one year after the court’s ruling in a different challenge brought by the same gun-rights group. That case involved New York City’s ban on the transport of licensed handguns outside the city. Because the city had repealed the ban before the case reached the Supreme Court, a majority of the court agreed with the city that the challengers’ original claims were moot – that is, no longer a live controversy. In a concurring opinion, Justice Brett Kavanaugh agreed that the case should return to the lower court, but he also indicated that he shared the concern – expressed by Justice Samuel Alito in his dissenting opinion – that the lower courts “may not be properly applying” the Supreme Court’s most recent gun-rights rulings, District of Columbia v. Heller and McDonald v. City of Chicago. Therefore, Kavanaugh urged the court to “address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari” then pending before the justices, several of which involved the right to carry a handgun outside the home for self-defense.

Shortly after issuing that decision, the court distributed for consideration at its May 1, 2020, conference 10 gun rights cases that they had put on hold while the New York City case was pending. The justices considered those cases at six consecutive conferences before finally denying review in all 10 of them in June.

Justice Clarence Thomas dissented from the court’s decision not to take up at least one of the 10 cases. In an opinion that was joined in part by Kavanaugh, Thomas argued that the Supreme Court would likely grant review if a law required someone to show a good reason before exercising her right to free speech or to seek an abortion. However, Thomas continued, the Supreme Court had opted to “simply look[] the other way” when “faced with a petition challenging just such a restriction on citizens’ Second Amendment rights.”

There is no way to know why the justices turned down the petitions for review last year. Commentators speculated that some conservative justices may not have been confident that Chief Justice John Roberts would provide a fifth vote to expand gun rights. However, since then Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett, whose vote as a judge on the U.S. Court of Appeals for the 7th Circuit suggests that she might take a broader approach to the Second Amendment.

This post was originally published at Howe on the Court.

Posted in Featured, Cases in the Pipeline

Cases: New York State Rifle & Pistol Association Inc. v. Corlett

Recommended Citation: Amy Howe, Court to take up major gun-rights case, SCOTUSblog (Apr. 26, 2021, 10:50 AM), https://www.scotusblog.com/2021/04/court-to-take-up-major-gun-rights-case/

May 21 is deadline to comment on Proposed Amendment to Appellate Rule 1702. Stays ancilliary to appeals.

Click for text.

May 28 is deadline to comment on Proposed Amendment to Appellate Rules concerning PACfiling.

Click for text.

May 28 is deadline to comment on Proposed Amendment to additional Appellate Rules concerning PACfiling

Click for text.

May 28 is deadline to comment on Proposed Amendment to Appellate Rules concerning entry and withdrawal of appearance.

Click for text.

The information below is from Crisci Associates PA Capitol Digest.

The House is not meeting this week. The Senate meets on April 27 and 28.

LAST WEEK

The House passed the following bills:

HB 954 — amends Titles 18 (Crimes and Offenses) and 23 (Domestic Relations) to provide for dissemination of information relating to child abuse investigations. (201-0). The bill heads to the Senate.

HB 220 — amends Article XXIII-A, Powers and Duties of the Department of Drug and Alcohol Programs, Section 2301-A of the Administrative Code regarding admission to drug and alcohol treatment facilities. (201-0). This bill heads to the Senate.


HB 741 — adds Section 2319-A to Article XXIII-A, Powers and Duties of the Department of Drug and Alcohol Programs, of the Administrative Code regarding notification when a resident leaves a drug and alcohol recovery house. (201-0). This bill heads to the Senate.


HB 944 — amends Article XXIII-A, Power and Duties of the Department of Drug and Alcohol Programs, Section 2301-A of the Administrative Code regarding notification when a patient leaves a drug and alcohol treatment facility against medical advice. (201-0). This bill heads to the Senate.

The Senate passed the following bills:

SB 114 — amends Title 75 (Vehicles) to enact “Christine’s Law” which establishes new requirements for the removal of accumulated ice or snow from motor vehicles or motor carrier vehicles. (47-0). The bill heads to the House.

HB 203 — creates a new freestanding act to be known as the Living Donor Protection Act. (47-0).
HB 203 now heads to the Governor for his consideration.

SB 420 — amends the County Code, in district attorney, assistants and detectives, further providing for district attorney, qualifications, eligibility and compensation. (48-0). This bill heads to the House. This bill does not concern Philadelphia.

Click for Pennsylvania Bulletin of April 24, 2021.

HEADLINES FROM CRISCI ASSOCIATES

Gov. Wolf Vows to Work With Lawmakers, Law Enforcement to Quell Gun Violence

After Chauvin Verdict, Here’s the Status of Police Reform Proposals in PA


PA’s 2022 Races Show How Marijuana Legalization Has Gone from Fringe to Front-Runner


In Reversal, Senate Committee Advances Statutory Window for Abuse Survivors

PA Legislative Black Caucus Says Policing Legislation Remains One of Their Priorities this Session

Marijuana Legalization Supporters Rally at PA State Capitol

Post-Gazette Editorial: The Hidden Price of Proposed Monitoring for Drinking is Too High

With Return of Lawmakers, Victims of Child Sex Crimes Implore PA Senate to Advance Reform Bill

THE BEST OF THE MARSHALL PROJECT

Show them the money. State foster care agencies across the country routinely collect millions in Social Security benefits owed to children with disabilities or a deceased parent. The children are rarely told. State officials say they’re using the money as reimbursement for the cost of foster care, but child advocates cite federal and state laws that require the government to pay for the service. In collaboration with NPR, Eli Hager and Michelle Pitcher and NPR’s Joseph Shapiro have our story. More from TMP: Ever been in foster care? We created a guide on how to find out if the government took your money.

How we survived COVID-19 in prison. Our staff writer Nicole Lewis began corresponding with incarcerated people last spring to understand how they were enduring the pandemic behind bars. Over the following months they wrote in detail about their grim lives in lockdown, the coronavirus outbreaks that sickened them and the isolation and fear they felt as the death toll around them mounted. We selected four of these special correspondents, housed in prisons across the country, and asked artists to illustrate their stories. Here is the latest in our series, “The Pandemic Behind Bars.”

NYPD hate crime data fails to capture harassment against older Asians. Harassment cases against Asian New Yorkers rose over the past year, even as assaults and other potential hate crimes against non-Asian victims decreased once the coronavirus hit. In collaboration with THE CITY, Christine Chung and Weihua Li dug into how the problem is particularly striking for Asian people who are over 65. Advocates wonder why police and prosecutors aren’t more aggressively pursuing investigations. This month alone, undercover Asian police officers were targeted in three incidents.

Coronavirus cases inside prisons ticked up slightly again last week, though there was a large outbreak in Washington. Our tracker, produced in collaboration with The Associated Press, shows at least 395,882 prisoners nationwide have tested positive for COVID-19 since we started tracking numbers in March 2020. At least 2,571 incarcerated people and 201 prison employees have died from the disease.

Four more prison systems open up to visitors as coronavirus vaccinations spread. We’ve updated our prison visitation tracker to note that corrections officials in California, Illinois, Rhode Island and Tennessee will now permit some form of in-person visits. Six systems, in Southern and Western states, remained closed to all visitation.

THE BEST OF THE REST

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

At PublicSource, a nonprofit news outlet focused on Pittsburgh, reporter Juliette Rihl capped an impressive run of stories on abuses in the Allegheny County Jail with a short series of lessons, gleaned from eight months of reporting. “Establish work boundaries and prioritize your mental health,” she writes, explaining that she used to take calls from incarcerated sources at all hours, which led to burnout. “It’s important to remember that you are not personally responsible for changing the criminal justice system.” A simple point, but one many of us need to hear sometimes. Rihl’s series is a model for local reporters looking to hold their jails, sheriffs and county contractors accountable. — Maurice Chammah

One Georgia police officer is asking his profession to take the Derek Chauvin verdict “personally,” and as a moment to “slow down.” Writing in The Washington Post​,​ Officer Patrick Skinner pleads with his fellow officers to avoid defensiveness or complacency. He asks them not to reflexively assert “not all cops” or “look, the system worked” — and instead, reflect on how the job needs to change. Skinner asks his colleagues to bring that same deliberateness into how officers approach the job, too. ​”​Slow down, I tell myself in almost every police encounter,” Skinner writes. “I’m often wrong in the initial assessment of chaotic scenes, and so I try to be wrong silently, allowing my judgment to catch up to my reactions, to allow my perception to catch up with my vision.” That’s a lesson all of us, whether police or not, would be wise to absorb. — Jamiles Lartey

Argument analysis: Justices wrestle with procedural isues stemming from their own Federal criminal-law decision.

By Evan Lee, SCOTUSblog, April 21, 2021. Click for full report.

If there was a dominant theme at Tuesday’s oral arguments in Greer v. United States and United States v. Garyit was that the justices are struggling to draw boundaries around the circumstances in which federal criminal defendants are entitled to a new proceeding in the district court after the court of appeals has found “plain error” in the trial or plea hearing. The specific impetus for this line-drawing exercise is the court’s game-changer 2019 decision in Rehaif v. United Statesbut the justices are clearly concerned about the more general application of whatever lines they end up drawing.
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Guernica by Pablo Picasso

April 26, 1937. German Luftwaffe destroys Basque town of Guernica in Spanish Civil War. Click for details on history.com. For details on painting click https://www.stayinart.com/en/guernica-icon-of-peace/

OPINION ANALYSIS

By Amy Howe
SCOTUSblog, April 22, 2021 at 1:04 pm

The Supreme Court on Thursday declined to impose new restrictions on the ability of states to sentence juveniles to life without parole, rejecting a challenge from a Mississippi man, Brett Jones, who was convicted of the 2004 stabbing death of his grandfather, a crime committed when Jones was 15. Jones had argued that two recent Supreme Court decisions on mandatory life-without-parole decisions for juveniles – the court’s 2012 decision in Miller v. Alabama and its 2016 ruling in Montgomery v. Louisiana – required the judge who sentenced him to find that he was incapable of rehabilitation before imposing life without parole. By a vote of 6-3, the justices disagreed, holding that it was enough that the judge considered his youth in sentencing him.

In an opinion by Justice Brett Kavanaugh, the majority explained that the Supreme Court’s decisions in Miller and Montgomery “squarely rejected” any requirement that a judge or jury imposing a sentence make a separate finding that the defendant cannot be rehabilitated. All that Miller required, Kavanaugh wrote, was that “a sentencer consider youth as a mitigating factor when deciding whether to impose a life-without-parole sentence.” And nothing in Montgomery, Kavanaugh continued, created any additional requirements beyond those outlined in Miller.

More generally, Kavanaugh emphasized that the court’s decision “should not be construed as agreement or disagreement with the sentence imposed against Jones.” The states, rather than the federal courts, are tasked with making the kinds of “broad moral and policy judgments” about what an appropriate sentence would be in a case like this one. The Supreme Court’s role, Kavanaugh continued, is limited to determining whether the scheme used to sentence Jones complied with the Eighth Amendment’s ban on cruel and unusual punishment – which it did, Kavanaugh reiterated, because the life-without-parole sentence here “was not mandatory and the trial judge had discretion to impose a lesser punishment in light of Jones’s youth.” And in any event, Kavanaugh observed, the Supreme Court’s ruling “is far from the last word on whether Jones will receive relief from his sentence”: Among other things, Jones “contends that he has maintained a good record in prison and that he is a different person now than he was when he killed his grandfather.”

Justice Clarence Thomas agreed with the result that the majority reached, but he filed a separate opinion to explain his reasoning. He argued that the court’s decision in Montgomery “was a ‘demonstrably erroneous’ decision worthy of outright rejection.” But instead, Thomas complained, the ruling “gave a good-for-one-ride ticket to a class of juvenile offenders.”

Justice Sonia Sotomayor dissented, in an opinion that was joined by Justices Stephen Breyer and Elena Kagan. She accused the majority of “distort[ing] Miller and Montgomery beyond recognition.” But, she added, “[a]ny doubts the Court may harbor about the merits of these decisions do not justify overruling them.” “How low,” she concluded, “this Court’s respect for stare decisis has sunk.”

Kavanaugh pushed back, stressing that Thursday’s decision “does not overrule Miller or MontgomeryMiller held that a State may not impose a mandatory life-without-parole sentence on a murderer under 18. Today’s decision does not disturb that holding. Montgomery later held that Miller applies retroactively” to defendants whose direct appeals had already run out by the time the decision was released. “Today’s decision likewise does not disturb that holding.” Instead, Kavanaugh concluded, he and his colleagues in the majority “simply have a good-faith disagreement with the dissent over how to interpret” those cases.

This post was originally published at Howe on the Court.

Posted in FeaturedMerits Cases

Cases: Jones v. Mississippi

Recommended Citation: Amy Howe, Court upholds life-without-parole sentence for Mississippi man convicted as juvenile, SCOTUSblog (Apr. 22, 2021, 1:04 PM), https://www.scotusblog.com/2021/04/court-upholds-life-without-parole-sentence-for-mississippi-man-convicted-as-juvenile/

Candidates Forum for Pennsylvania Commonwealth Court, 6:30 to 8 p.m., April 19

Sponsors include Pennsylvanians for Modern Courts and the Philadelphia Bar Association

Click here to register for the forum.

Criminal Justice Section Town Hall on state of Court operations, 12:30 to 2 p.m., April 22

Click here for details and registration.

The information below is from Crisci Associates PA Capitol Digest.

The House and Senate meet April 19, 20 and 21.

The House Judiciary Committee meets on April 20 at 10 a.m. to consider the following bills:

Voting meeting on HB 231 (unlawful contact with minor), HB 246 (evidence and defenses for human trafficking), HB 580 (expert testimony in criminal proceedings), HB 753 (offenses dealing with infant children), HB 843 (consideration of criminal conviction in child custody matters), HB 1096 (civil cause of action for human trafficking), HB 1130(sentencing for sexual offenders), HB 1147 (sexual offender treatment in sentencing) and any other business that may come before the committee.

Click for Pennsylvania Bulletin — April 17, 2021

HEADLINES FROM CRISCI ASSOCIATES

As Crime Victims’ Rights Week Approaches, What Happened to Marsy’s Law?

THE BEST OF THE MARSHALL PROJECT

“I am not your ‘inmate.’ This week, we unveiled The Language Project, a months-long effort to examine and reflect on the much-contested words used to describe people behind bars. In a series of essays by people who spent time in prison and people who worked as guards, we hear why many common terms for describing incarceration feel dehumanizing to those in the system. At its heart, journalism is a discipline of clarity. The Language Project is our attempt to set the record straight.

Read essays by Lawrence Bartley on why he balks at “inmate,” Lisette Bamenga on words that insult her and Kevin Byrd from the perspective of a correctional officer. Rahsaan Thomas shares how he challenged other people incarcerated with him at San Quentin State Prison to care about the terms used to describe them. And Wilbert Cooper talks with Alexandra Cox about why changing language does not in and of itself prompt systemic change.

We also offer our guidance on deciding when to use certain terms , and the people-first principles that guide our decisions.

The Marshall Project has teamed up with Poynter to present a webinar for journalists to discuss the issues raised by The Language Project. “The Words We Use to Cover Criminal Justice, Jails, and Prisons” will take place on April 21 at noon, and you can register here.

The newest death penalty reformers: Conservatives? In five states, Republican legislators are pushing to abolish the death penalty. But in seven others, they are trying to “fix” it, by increasing protections for the innocent and restricting who can be executed. What does this mean for the future of capital punishment? Meet Kevin McDugle, an Oklahoma legislator pushing innocence bills based on the increasingly high profile case of Richard Glossip.

“We turned into images for a whole year.” As the pandemic forced almost every aspect of life onto a screen, parents who lost custody of their children could not visit them in person. But they had to somehow prove a strong bond with their kids — even infants — over Zoom to get them back. It’s been a devastating transition that could have lingering effects for parents and kids alike.

THE BEST OF THE REST

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

At the Burlington Times-News, reporter Ahmed Jallow has a great story that manages to do so many things at once: Tell the story of an innovative decision by the Fayetteville, North Carolina police chief to change how officers do traffic enforcement, explain the complexities of policing data and race, measure the positive impact of this particular decision, and assess whether it could be a model for other cities. What first appears to be a small, local story, grows into a nationally relevant model of hopeful, explanatory reporting, sorely needed in a week where the relationships between police and communities seem more broken than ever. — Maurice Chammah, staff writer

documentary released this week by Frontline, ProPublica and UC Berkeley’s Investigative Reporting Program gives viewers an extraordinary look at the rise of extremism. The film and accompanying article trace the way groups touting violent ideologies have gained power, culminating in the Jan. 6 insurrection at the U.S. Capitol. This journalism shows the power of one person’s narrative to examine the complex and deeply troubling ways that extremist views take hold. The story focuses on a 32-year-old Air Force sergeant accused of belonging to the anti-government Boogaloo Bois movement. He is currently facing charges in connection with the ambush killing of a sheriff’s deputy and the fatal shooting of a federal security officer in Oakland. “The scary thing,” one FBI agent told reporters,” is a lot of people in these groups that we’re seeing now are your neighbors.” — Abbie VanSickle, staff writer

Petitions of the Week by ANDREW HAMM

This week we highlight cases that ask the Supreme Court to consider, among other things, whether Florida’s Medicaid agency can recoup the cost of past medical expenses from a tort victim’s settlement fund that is intended to pay for future medical care, whether the federal government is properly calculating payments for hospitals serving low-income patients, and whether the District of Columbia deserves a voting House delegate.

Gianinna Gallardo was a 13-year-old student when she was hit by a truck after getting off a school bus. Florida’s Medicaid agency paid for the bulk of her treatment. Gallardo remains in a vegetative state. After filing a civil suit against the truck driver and others, her parents recovered $800,000 in a court-approved settlement. The Medicaid agency then sought $300,000 of this amount to cover Gallardo’s past medical expenses. That money would come from a portion of the settlement fund meant to pay for both past and future medical care. The U.S. Court of Appeals for the 11th Circuit allowed Florida’s action, even though, the Gallardos maintain, the Florida Supreme Court and other state and federal courts would not. In Gallardo v. Marstiller, they ask the justices to resolve the conflict and reverse the 11th Circuit.

Becerra v. Empire Health Foundation looks at the calculations by which hospitals that serve a “significantly disproportionate number of low-income patients” receive Medicare payments. Congress has created two proxy measures to reflect a hospital’s proportion of low-income Medicare and non-Medicare patients. In one, Congress directed the secretary of health and human services to include patient days attributable to “patients who (for such days) were entitled to benefits.” By regulation, the secretary counts such days regardless of whether the Medicare program ultimately pays the hospital for those days, perhaps because the beneficiary exhausted inpatient benefits for that particular benefit period. Dissatisfied with its total reimbursement amount for 2008, Valley Hospital Medical Center challenged this regulation. The U.S. Court of Appeals for the 9th Circuit agreed, acknowledging a split with two other circuits. The acting solicitor general asks the justices to review and reverse this decision.

In Castañon v. United States, residents of the District of Columbia have brought an ambitious legal challenge seeking voting representation in Congress. They argue that, although the Constitution states that the House of Representatives shall be chosen by “the People of the several States,” in practice people who are not state residents are still entitled to vote. For example, the Overseas Voting Act allows Americans living overseas to vote, and residents of “federal enclaves,” such as military bases, are entitled to vote in the state in which the enclave is located even if that state does not consider them to be state residents. The D.C. residents argue that there is no justification for treating them differently from other American citizens who are not state residents yet still have congressional voting representation. A three-judge district court rejected the residents’ arguments. Nonetheless, they ask the Supreme Court to review the case and to grant relief, including a declaration that the District’s House delegate (currently a non-voting member) has the power to vote on all legislation.

These and other petitions of the week are below:

Gallardo v. Marstiller
20-1263
Issue: Whether the federal Medicaid Act provides for a state Medicaid program to recover reimbursement for Medicaid’s payment of a beneficiary’s past medical expenses by taking funds from the portion of the beneficiary’s tort recovery that compensates for future medical expenses.

Castañon v. United States
20-1279
Issue: Whether the three-judge district court erred by holding that residents of the District of Columbia are not entitled to voting representation in the House of Representatives because they do not live in a “State,” even though (1) Americans living overseas and residents of “federal enclaves” have voting representation in Congress despite not being State residents, (2) Congress has concluded that it may extend voting rights to District residents under the “District Clause” of the Constitution, Article I, Section 17, Clause 8, and (3) the Supreme Court has held that the right to vote is the most fundamental of all rights because it is preservative of all other rights.

Becerra v. Empire Health Foundation
20-1312
Issue: Whether, for purposes of calculating additional payment for hospitals that serve a “significantly disproportionate number of low-income patients,” the secretary of health and human services has permissibly included in a hospital’s Medicare fraction all of the hospital’s patient days of individuals who satisfy the requirements to be entitled to Medicare Part A benefits, regardless of whether Medicare paid the hospital for those particular days.

Shivkov v. Artex Risk Solutions Inc.
20-1313
Issues: (1) Whether an agreement that specifies arbitration before the American Arbitration Association as the default dispute-resolution method also must specifically mention the AAA rules to avoid being considered ambiguous about whether the parties intended to apply the AAA rules; and (2) whether the availability of class arbitration is a matter for an arbitrator to decide, or for a court to decide.

Boardman v. Inslee
20-1334
Issue: Whether a law that skews the debate over the value of public-sector unions and undermines public-sector employees’ opt-out rights by giving incumbent unions exclusive access to information necessary to communicate with public-sector employees is consistent with the First Amendment.

A.P. v. Vermont
20-1335
Issue: Whether Vermont’s criminalization of lewd and lascivious conduct violates the due process clause of the 14th Amendment to the U.S. Constitution.

Posted in FeaturedCases in the Pipeline

Cases: Gallardo v. MarstillerCastañon v. United StatesBecerra v. Empire Health FoundationShivkov v. Artex Risk Solutions Inc.Boardman v. InsleeA.P. v. Vermont

Recommended Citation: Andrew Hamm, Medicaid, Medicare and House representation for the District of Columbia, SCOTUSblog (Apr. 16, 2021, 5:20 PM), https://www.scotusblog.com/2021/04/medicaid-medicare-and-house-representation-for-the-district/

April 21, 1918. German flying ace “The Red Baron” killed in action over France.

Click for details on history.com

Senate Chamber, Pennsylvania Capitol

The information below is from Crisci Associates PA Capitol Digest.

The House and Senate are not in session this week.

The following bills passed the House last week:


HB 951 — amends Title 42 (Judiciary and Judicial Procedure) concerning a temporary window to file claims and exceptions to sovereign and governmental immunity. (149-52)

HB 521 — amends Title 75 (Vehicle Code) to require a substance monitoring program evaluation for certain repeat DUI offenders. (143-58)

HB 184 — amends Title 18 (Crimes and Offenses) concerning the offense of causing or aiding a suicide. (162-39)

Click for Pennsylvania Bulletin — April 10, 2021

HEADLINES FROM CRISCI ASSOCIATES

PA House Passes Bill Stiffening Penalty on Those Aiding or Soliciting a Person to Die By Suicide

State House Advances 2-Year Child Sex Abuse Lawsuit Window

PA House Passes Bill to Use Technology to Crack Down on Repeat DUI Offenders

Thousands in PA Prisons Will Be Offered COVID Vaccine

Gov. Wolf Says He’d Veto Philly Rep.’s Bill to Keep Trans Girls Out of School Sports

THE BEST OF THE MARSHALL PROJECT

“2020 was a tinderbox.” A social safety net strained by the pandemic and escalating mistrust between police and communities of color likely contributed to a sharp increase in murders in 2020, our analysis concludes. There were 722 more homicides in nine U.S. cities last year, according to police data. More than 85% of the increase was in predominantly Black and Hispanic neighborhoods. Weihua Li and Beth Schwartzapfel crunched the data and have our story.

Death penalty for mass shooters? Depends on where they strike. The fates of the two men accused of mass murder in Atlanta, Georgia and Boulder, Colorado, last month highlight the geographical disparities of capital punishment in America. Robert Aaron Long is much more likely — though by no means certain — to face the death penalty in Georgia if convicted of killing eight people at spas in Atlanta. Meanwhile, Ahmad Al Aliwi Alissa, accused of killing 10 people in a grocery store in Boulder, cannot face capital punishment because Colorado abolished it. In collaboration with The Daily Beast, Maurice Chammah and Keri Blakinger have a look at how local politics can shape charging and sentencing decisions.

Fewer than 20% of federal and state prisoners have received a COVID-19 shot, our new tally reveals. At the end of March, Arkansas and Florida had not yet begun vaccinating prisoners. Corrections officials in eight states have not reported how many prisoners have been vaccinated. Texas vaccinated its first 600 prisoners only by mistake — after a freezer malfunction had jeopardized a batch of the medicine. In some states, prisoners have had to sue to get access. In other places, those who are eligible haven’t been given adequate education about the shot. In collaboration with The Associated Press, Katie Park and Ariel Goodman and AP’s Kimberlee Kruesi have our story.

Family members are slowly being allowed back in prisons to visit their loved ones. Corrections officials in seven states have restarted prison visitation in the past few weeks, as COVID-19 vaccines ramp up and positive tests, in some places, decrease. 19 states now permit family visitation. Eight states, in the South and West, still bar all visits. In collaboration with The Associated Press, check out our latest tracker.

“Nobody wants to be identified as a victim.” Carl Chan is known to many as the unofficial mayor of Oakland’s Chinatown, which, like many communities, has seen a surge of anti-Asian violence since the start of the pandemic. He says the violence isn’t new, and neither is the mistrust many elderly Asian residents feel toward the police. As a result, Chan estimates 80% of hate crimes go unreported. “We need to focus on our communities right now, not politics,” Chan told Michelle Pitcher in the latest installment of our “Life Inside” series.

Federal prison officials withhold more data about COVID-19 behind bars. Last month, the Bureau of Prisons removed from its coronavirus count prisoners who had tested positive, but who have been released. This month, the BOP lowered the number of deaths it is reporting among people held in private prisons. Our tracker, published in collaboration with The Associated Press, shows at least 392,493 people in federal and state prisons have tested positive for the virus since March 2020; at least 2,516 have died. Prisons have publicly announced 198 staff deaths related to COVID-19.

THE BEST OF THE REST

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

John J. Lennon, an incarcerated journalist who often contributes to The Marshall Project, is such a wonderfully deceptive writer. This week’s New York Times Magazine essay about experiencing COVID in prison sounds, at first, like a chatty, intimate blog post, zipping between big context and tiny details. We meet men with names like “Mikey Meatballs” and “Loco.” Slowly, it becomes clear that Lennon has been meticulous in his attempt to evoke the fear, chaos, and poor information flow that accompanied the virus’s spread in prisons, as well as the uneasy balance of dread and hope as the vaccine makes its way in. At the essay’s climax, he offers a stunning degree of vulnerability, openly admitting in the pages of a national magazine, “I sometimes feel that I am less deserving of the vaccine than an innocent person.”— Maurice Chammah, staff writer

As I watch and read about the ongoing trial of Derek Chauvin, I keep coming back to “Warriors in the Garden.” It’s a recent episode of “This American Life” that follows three men brought together through the racial justice demonstrations that followed the death of George Floyd. The story captures the lives and motivations of people involved in the Black Lives Matter movement. It focuses on this complicated question: What do you do when police violence finds you? Nothing about it is clichéd or simple. I don’t want to give away too much, other than to urge you to listen and to promise that it’s well worth your time. — Abbie VanSickle, 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, the viability of certain types of disability-based claims under three federal statutes. One petition involves the Americans with Disabilities Act. Another involves the interaction of the Affordable Care Act and the Rehabilitation Act.

Because an on-the-job arm injury made it harder for her to conduct health inspections for Weld County, Colorado, Laurie Exby-Stolley requested an accommodation in the form of a new position with tasks she could perform. After the county told Exby-Stolley that her proposed arrangement would be unfair to other employees, she resigned. Exby-Stolley then sued the county under the Americans with Disabilities Act of 1990 for failing to accommodate her injury. Her claim faltered in district court because the jury determined that the county had not terminated her or subjected her to an adverse employment action. The en banc U.S. Court of Appeals for the 10th Circuit reversed on the ground that Exby-Stolley did not need to prove that the county took an adverse action, only that the county failed to accommodate her. Arguing that the U.S. courts of appeals are “nearly evenly divided” on this issue, the county asks for the justices’ review. The case is Board of County Commissioners of Weld County, Colorado v. Exby-Stolley.

CVS Pharmacy Inc. v. Doe involves a class action brought under Section 504 of the Rehabilitation Act of 1973 and Section 1557 of the Patient Protection and Affordable Care Act. The class members, who are HIV-positive, have health insurance through their employers. Those health plans, in turn, rely on CVS Caremark, a pharmacy benefits manager, to administer their prescription-drug benefits. Under the terms of their benefit plans, the class members can receive in-network prices for their HIV medications by accepting the medications by mail or by picking them up at a CVS pharmacy, but they must pay out-of-network prices at other pharmacies. CVS maintains that this policy applies to all “specialty medications.” Nevertheless, the class members argue that the delivery conditions disproportionately harm plan members with HIV or AIDS, and they demand in-network prices at their chosen pharmacies.

The class members argue that the Rehabilitation Act, which prohibits discrimination on the basis of disability by programs or activities receiving federal funds, allows for disparate-impact claims. Moreover, the ACA, which incorporates the Rehabilitation Act’s enforcement mechanisms, allows them to challenge the terms and conditions of their benefit plans. The district court dismissed the case because the delivery conditions depend on whether the patients receive specialty medications, not whether they are HIV-positive. The U.S. Court of Appeals for the 9th Circuit vacated and remanded for further proceedings on the ground that the benefit plans did not need to uniquely impact people with HIV or AIDS if the plans denied them “medically appropriate dispensing of their medications.” Arguing that the 9th Circuit deepened “a square, widely acknowledged conflict,” CVS asks for the Supreme Court’s review.

These and other petitions of the week are below:

SFR Investments Pool 1, LLC v. M&T Bank
20-908
Issues: (1) Whether the Federal Housing Finance Authority’s structure violates separation of powers and, if so, whether its conservatorship of Fannie Mae and Freddie Mac must be set aside; and (2) whether quiet title actions by FHFA, asserting that a state law foreclosure failed to extinguish the agency’s property interests, are contract claims for purposes of 12 U.S.C. § 4617(b)(12).

Warsaw Orthopedic Inc. v. Sasso
20-1284
Issue: Whether a federal court with exclusive jurisdiction over a claim may abstain in favor of a state court with no jurisdiction over that claim.

AbbVie Inc. v. Federal Trade Commission
20-1293
Issue: Whether the subjective element of the “sham litigation” exception to Noerr-Pennington immunity may be met by an inference from a finding that a challenged lawsuit was objectively baseless, even without evidence that the antitrust defendant actually believed the suit lacked merit or was indifferent to the outcome.

Walker v. Mississippi
20-1306
Issues: (1) Whether the Mississippi Supreme Court failed to adhere to the Supreme Court’s Sixth Amendment jurisprudence requiring counsel in a capital case to conduct a thorough investigation of their client’s background and history, and that purported “tactical” decisions are only reasonable to the extent they are based on such an investigation; and (2) whether Alan Walker was denied the effective assistance of counsel in the preparation and presentation of mitigation at his capital trial.

Board of County Commissioners of Weld County, Colorado v. Exby-Stolley
20-1357
Issue: Whether a plaintiff asserting a failure-to-accommodate claim under the Americans with Disabilities Act of 1990 must show that the employer’s failure to make the requested accommodation affected the “terms, conditions, [or] privileges of employment”—that is, whether the employee must show that the failure to accommodate amounted to an adverse employment action.

CVS Pharmacy Inc. v. Doe
20-1374
Issues: (1) Whether Section 504 of the Rehabilitation Act of 1973 — and by extension Section 1557 of the Patient Protection and Affordable Care Act, which incorporates the “enforcement mechanisms” of other federal antidiscrimination statutes — provides a disparate-impact cause of action for plaintiffs alleging disability discrimination; and (2) whether, if Section 504 and the ACA create disparate-impact claims, such claims extend to the facially neutral terms and conditions of health insurance plans.

Posted in Featured, Cases in the Pipeline

Cases: SFR Investments Pool 1, LLC v. M&T Bank, Warsaw Orthopedic Inc. v. Sasso, AbbVie Inc. v. Federal Trade Commission, Walker v. Mississippi, Board of County Commissioners of Weld County, Colorado v. Exby-Stolley, CVS Pharmacy Inc. v. Doe

Recommended Citation: Andrew Hamm, Two cases alleging disability-based discrimination, SCOTUSblog (Apr. 9, 2021, 1:01 PM), https://www.scotusblog.com/2021/04/two-cases-alleging-disability-based-discrimination/

April 12, 1961. Soviets put first human in space. Click for report from history.com.

The information below is from Crisci Associates PA Capitol Digest.

The House meets April 5, 6 and 7. The Senate will not be in session. The Senate Appropriations Committee will hold budget hearings for the Office of Attorney General, April 7 from 1 to 3 p.m.

Click for Pennsylvania Bulletin — April 3, 2021

HEADLINES FROM CRISCI ASSOCIATES

PA Cannabis Legalization Remains Unlikely as Neighboring States Go For It

Reminder: Real ID Enforcement to Begin October 1 for Air Travel

A Black Lawmaker (Rep. Amen Brown) is Crusading for Mandatory Minimums. He’s Raising A Lot of Eyebrows

THE BEST OF THE MARSHALL PROJECT

It’s complicated. Federal law enforcement officials have been criticized, especially in the wake of the Capitol riot, for not aggressively prosecuting cases against right-wing extremists. One explanation is simple: The First Amendment protects abhorrent racist speech and in some cases even threats. Another explanation is a bit more complicated: Prosecutors typically choose to pursue only the strongest cases, usually involving guns and drugs, even if it means downplaying the white supremacy behind it.

Blame Texas guards, not prisoners’ mail, for the contraband finding its way inside. Convinced that friends and family members were illegally sending drugs to their loved ones behind bars, Texas corrections officials last year restricted mail delivery and then, when the coronavirus hit, shut down family visitation. But the flow of drugs hasn’t stopped, our new investigation concludes, and in some cases may have gotten worse. The real problem? Underpaid employees in understaffed facilities eager to make some money on the side.

Friends executed, one after the other. Billie J. Allen, on death row in Indiana since 1998, says he feels guilt for surviving through the Trump administration’s execution spree that took place from last June to January. He was friends with five of the men killed by lethal injection in Terre Haute, including Dustin Higgs and Corey Johnson, who were executed just days before Joe Biden was sworn in as president. “I watched them grow into better men for themselves, their families and friends — and in some cases — on behalf of their victims’ families,” Allen writes. “They also helped me better myself. They are gone, but their impact lives on.”

THE BEST OF THE REST

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

Most states’ jails get an F when it comes to COVID-19 data. That’s according to a report released this week from University of Texas at Austin’s Michele Deitch and William Bucknell. The 70-page report determined letter grades for each state based on what data they release about infection, death and vaccination numbers. There are set criteria, and the more a given state checks off the higher their grade. One state — Wisconsin — got an A- for juvenile corrections data, but by and large the grades were not good. If you’re a data nerd, there’s a lot to unpack in here. If not, there are at least some pretty and depressing maps. To me, this just confirms what a lot of us who’ve been paying attention to correctional systems’ COVID-19 data already knew: It leaves a lot to be desired. — Keri Blakinger, staff writer

I’ve been a huge fan of NASA-engineer-turned-YouTuber Mark Rober for his lighthearted hacks and experiments, like filling up a swimming pool with Jello or making a squirrel-proof bird feeder. But his recent venture is especially interesting. See, a couple of years ago, Rober invented the Glitterbomb, a coy device that sprays porch pirates with glitter when they open up the sloten package. And every holiday season, Rober would improve upon his creation: Beside glitters, the most recent version (Glitterbomb 3.0) now includes a fart spray and four camera phones that record what’s happening outside and pushes the footage online. Recently, Rober teamed up with software engineers Jim Browning and law enforcement to use the Glitterbomb on phone scammers who targeted elderly victims. Their adventure is certainly worth a watch during this Easter weekend. If that’s not enough, Yudhijit Bhattacharjee also did a deep dive into the scam call industry for the New York Times Magazine.

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 14th or 26th Amendments require Indiana to allow all voters to vote absentee by mail, regardless of age, and whether tribal sovereign immunity prevents a New York county from foreclosing on a Native American tribe’s parcels in the county’s jurisdiction for which the tribe has not paid property taxes.

Tully v. Okeson involves two constitutional objections to Indiana’s requirements for younger voters seeking to vote by mail. Indiana allows certain voters to vote by mailing absentee ballots, including voters who will be absent from their precinct on Election Day and voters who are 65 or older. In March 2020, ahead of the state’s primary election, the Indiana Election Commission allowed absentee voting by mail for all Indiana voters, regardless of age. However, the commission did not extend this policy for the November general election. A group of voters under the age of 65 filed suit for the right to vote absentee by mail under two constitutional amendments. The 14th Amendment prohibits unjustified burdens on the right to vote, and the 26th Amendment protects the rights of voters aged 18 and above from age discrimination. The U.S. Court of Appeals for the 7th Circuit ruled under the 26th Amendment that Indiana’s practice does not deny younger voters the right to vote, but only the privilege of voting by mail. Moreover, the 7th Circuit continued, this distinction does not violate the 14th Amendment because Indiana has a rational basis for its policy. In their petition for review, the younger voters argue that this decision conflicts with rulings from other state and federal courts.

Seneca County, New York v. Cayuga Indian Nation of New York presents the justices with questions of tribal sovereign immunity and local taxation. Over the past 25 years, the Cayuga Indian Nation of New York has purchased parcels of land on the open market in Seneca County, New York. On the one hand, the tribe claims that the land was once part of its reservation; on the other hand, private owners have controlled the land for roughly 200 years. The tribe refused to pay property taxes, and when the county sought to foreclose on some of the parcels, the tribe filed suit in federal court to enjoin the county’s foreclosure proceedings on the grounds of tribal sovereign immunity. In the decision below, the U.S. Court of Appeals for the 2nd Circuit recognized that sovereign immunity does not prohibit local jurisdictions from asserting claims over immovable property in their territories. However, the 2nd Circuit ruled that the immovable-property exception to sovereign immunity did not apply because the foreclosure proceedings were fundamentally about tax enforcement, not property.

These and other petitions of the week are below:

Kansas Natural Resource Coalition v. Department of the Interior
20-1195
Issues: (1) Whether a party vindicating a procedural injury lacks standing unless it can establish with certainty that procedural compliance would change the outcome of subsequent agency action; and (2) whether, under the strong presumption favoring judicial review of agency action, agency violations of the Congressional Review Act’s rule-submission requirement are subject to judicial review.

Jooce v. Food and Drug Administration
20-1203
Issues: (1) Whether a regulation may be ratified if the appointments clause prohibited the purported agent’s exercise of rulemaking authority; and (2) whether, if so, the ratification must comply with the constraints that would normally govern an officer’s rulemaking, such as the Administrative Procedure Act’s “reasoned decision-making” requirement.

Seneca County, New York v. Cayuga Indian Nation of New York
20-1210
Issue: Whether tribal sovereign immunity bars local tax authorities from collecting lawfully imposed property taxes by foreclosing on real property that a tribe has acquired on the open market.

Gatewood v. United States
20-1233
Issues: (1) Whether cause exists to excuse a habeas petitioner’s procedural default when near-unanimous circuit precedent foreclosed the petitioner’s claim; and (2) whether cause exists to excuse a habeas petitioner’s procedural default when the Supreme Court explicitly overrules one of its precedents.

Tully v. Okeson
20-1244
Issues: (1) Whether Indiana violates the 26th Amendment to the U.S. Constitution by giving voters age 65 and older the right to cast an absentee ballot by mail while requiring otherwise identical voters age 18 to 64 to cast their ballots in-person; and (2) whether, in circumstances where in-person voting presents special dangers, Indiana’s absentee voting scheme violates the 14th Amendment to the U.S. Constitution by burdening the right to vote of voters age 18 to 64.

Valentine v. Phillips
20-1246
Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit violated Federal Rule of Civil Procedure 52(a)(6) when it failed to apply the proper, heightened and deferential standard to the district court’s expert witness credibility determination; and (2) whether the 6th Circuit usurped the district court’s expert witness gatekeeping function when it held that the district court should have credited the testimony of Johnny Phillips’s expert — and granted Phillips’s petition — simply because that testimony was not blatantly self-serving or dishonest.

Recommended Citation: Andrew Hamm, Voting by mail in Indiana and taxing tribes in New York, SCOTUSblog (Apr. 2, 2021, 12:44 PM), https://www.scotusblog.com/2021/04/voting-by-mail-in-indiana-and-taxing-tribes-in-new-york/

April 6 Forum for Superior Court Candidates. 6:30 to 8 p.m. via Zoom. Sponsored by Pennsylvanians for Modern Courts, Philadelphia Bar Association and other organizations. Click to register.

April 30 is deadline to apply for Supreme Court Committees

Click for information on Appellate Court Procedural Rules Committee

Click for information on Civil Procedural Rules Committee

If you would like to be considered to serve on one of these Committees, 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

Administrative Office of Pennsylvania Courts
Advisory Board Membership
Attn: Diane C. Bowser
1515 Market St., Suite 1414
Philadelphia, PA 19102

April 8, 1974. Hank Aaron breaks Babe Ruth’s home run record. Click for details from history.com.

The information below is from Crisci Associates PA Capitol Digest.

The House and Senate are not meeting this week.

LAST WEEK’S ACTIONS

Governor Wolf signed the following Bills: These bills do not concern Philadelphia.

  • SB 84 — amending the county code to state the first assistant district attorney will become the district attorney in the event of a vacancy for class 2A through 8th class counties until the next municipal election;
  • SB 85 — amending the second class county code to state the first assistant district attorney will become the district attorney in the event of a vacancy for 2nd class counties until the next municipal election;
  • SB 86 — amending Title 53 (Municipalities Generally) to require counties under a home rule charter to follow the procedures for succession under the county codes in the event of a vacancy in the office of district attorney;

Bills passed on March 24

HB 14 — a Joint Resolution proposing an amendment to the Constitution of the Commonwealth of Pennsylvania to provide for a two-year window for victims of childhood sexual abuse to file previously time barred claims passed the House (188-13). HB 14 must now be passed during the next legislative session (beginning in 2023) in order to appear on a ballot for voters to approve or disapprove. This bill passed the Senate on March 23 (44-3).

SB 411 — consolidating certain functions, duties and powers of the Pennsylvania Department of Corrections, the Pennsylvania Parole Board and the Board of Pardons; and providing for an independent Pennsylvania Parole Board and Board of Pardons with a separate line item appropriation for each passed the Senate (46-1). SB 411 now heads to the House for their consideration.

Committee action

On March 23, the Senate Appropriations Committee reported on SB 457 which would amend the Constitution to provide for the removal of an Attorney General who is disbarred, or suspension of an Attorney General whose law license is suspended.

Click for Pennsylvania Bulletin for March 27, 2021

Headlines from Crisci Associates

Justice Eyes Court Reforms to Serve Those on Autism Spectrum. Click for news release from Unified Judicial System of Pennsylvania website.

Child Sex Abuse Lawsuit ‘Window’ Amendment Clears PA House

Lawmakers Restart Amendment Process on Child Sex Abuse

PA House Bill Would Give Repeat DUI Offenders Harsher Penalties

Bill Advances to Ban Handheld Devices While Driving in PA

Child Sex Abuse Survivors in PA Denied Legal Relief as Emergency Effort Fails

PA Cops Made More Than 20k Marijuana Arrests During the Pandemic

Gun Waiting Periods Rare in US States But More May Be Coming in PA (and Three Other States)

Pennsylvanians for Modern Courts, Philadelphia Bar Association and other groups sponsor forums for candidates for Superior and Commonwealth Courts.

Click for information and registration.

Supreme Court chamber, Pennsylvania Capitol, Harrisburg
PUBLIC COMMENT REQUESTED ON PROPOSED RULE CHANGES

Recommendation 151 – Proposed Amendment of Pa.R.A.P. 1702 Deadline: May 21

Rec 142 – second publication. Deadline: May 28

Rec 152 – Proposed Amendment of Pa.R.A.P. 102, 1926, 1931, 1951, 1952, 2132, and 2151 Deadline: May 28

Recommendation 150 – Proposed Amendment of Pa R A P 120 and 121 with Correlative Amendment of Pa R A P 102 907 (B) 1112 (F) 1311 (D) 1514 (D) And 1602 (D) (Omitted) Deadline: May 28
newsletter-mark-c8ed094d73d10a49043a2e4269f325b51bb85aa9b49231567845d5507b90724f.pngTHE BEST OF THE MARSHALL PROJECT

Crime, punishment and a writer’s obsession. Sara Gruen, the author of “Like Water for Elephants,” has spent six years, risked her health, endured death threats and lost most of her money and some of her friends in an effort to free Chuck Murdoch from a California prison, where is he serving a life-without-parole sentence for murder. It all started with a letter Murdoch wrote to Gruen praising her book. Now Murdoch’s fate — and in many ways, Gruen’s, too — rests with the Los Angeles County Conviction Review Unit. In collaboration with New York Magazine, Abbott Kahler has the story.

Coronavirus cases inside prisons are still rising slowly. The death count among prisoners is now over 2,500. But an accurate national count of positive cases is no longer possible because the Federal Bureau of Prisons, which has had more prisoners infected than any other corrections system, has removed from its count prisoners released after contracting the virus. At least 390,896 prisoners have tested positive since last March. At least 106,876 prison staff have had the virus. Prisons have reported the deaths of 195 employees. In collaboration with The Associated Press, here is our updated tracker.

In prison when a loved one dies. Julia Ann Poff learned of her mother’s death last month by accident when she happened to call her husband. Federal prison staff in Texas then did little to give Poff the help or spiritual support she sought. A chaplain arrived days after the death to talk to her but didn’t recite any Scripture. “I had requested that the Catholic priest meet with me to say a rosary on my mother’s behalf,” Poff writes, “but that request went unanswered.” Here is the latest in our “Life Inside” series.

After the spotlight fades, police brutality cases usually follow a pattern. There’s a flurry of local and national media coverage, followed by a wave of public outrage, and then a rare prosecution or even rarer conviction of the officer involved. But for many families, the specter of police violence is a constant presence. Photographer Jon Henry’s ongoing series, “Stranger Fruit,” turns a lens toward Black families who live in fear of police brutality. Henry offers us intimate portraits, taken over seven years, of mothers worried their sons will become victims. Here is our latest in The Frame series, by Morgan Hornsby.

Update on prison visitation during the pandemic. Five prison systems — Arkansas, Delaware, Louisiana, South Dakota and Texas — have reopened facilities for visits in the past few weeks. Officials in 10 corrections systems, in Western and Southern states, continue to block all visitation. In collaboration with the Associated Press, here is our updated tracker.

Update on prison visitation during the pandemic. Five prison systems — Arkansas, Delaware, Louisiana, South Dakota and Texas — have reopened facilities for visits in the past few weeks. Officials in 10 corrections systems, in Western and Southern states, continue to block all visitation. In collaboration with the Associated Press, here is our updated tracker.

Update on prison visitation during the pandemic. Five prison systems — Arkansas, Delaware, Louisiana, South Dakota and Texas — have reopened facilities for visits in the past few weeks. Officials in 10 corrections systems, in Western and Southern states, continue to block all visitation. In collaboration with the Associated Press, here is our updated tracker.

Update on prison visitation during the pandemic. Five prison systems — Arkansas, Delaware, Louisiana, South Dakota and Texas — have reopened facilities for visits in the past few weeks. Officials in 10 corrections systems, in Western and Southern states, continue to block all visitation. In collaboration with the Associated Press, here is our updated tracker.

Update on prison visitation during the pandemic. Five prison systems — Arkansas, Delaware, Louisiana, South Dakota and Texas — have reopened facilities for visits in the past few weeks. Officials in 10 corrections systems, in Western and Southern states, continue to block all visitation. In collaboration with the Associated Press, here is our updated tracker.

Update on prison visitation during the pandemic. Five prison systems — Arkansas, Delaware, Louisiana, South Dakota and Texas — have reopened facilities for visits in the past few weeks. Officials in 10 corrections systems, in Western and Southern states, continue to block all visitation. In collaboration with the Associated Press, here is our updated tracker.

March 31, 1991: The Warsaw Pact dissolves. Click for full report from history.com

Virginia becomes first Southern State to abolish death penalty

Click for full report from Washington Post.

The information below is from Crisci Associates PA Capitol Digest.

LAST WEEK

Victim Advocate Nomination Governor Wolf announced his nomination of Suzanne V. Estrella, Esq. to serve as Pennsylvania’s Victim Advocate for the Office of Victim Advocate.

The following Bills passed the House.

HB 103 — amends Title 18 (Crimes and Offenses) to provide that if a person intentionally or knowingly causes the officer to come into contact with saliva or other bodily fluid by throwing, tossing or spitting the bodily fluid, the person would commit a criminal offense. (146-56)


HB 146 — amends Title 61 (Probation and Parole) to provide for Markie’s Law, which precludes the parole board from prematurely releasing an inmate at the expiration of his minimum sentence if the inmate was convicted of a violent offense while incarcerated. (144-58)


HB 156 — amends Title 42 (Judiciary and Judicial Procedure) to amend the Tender Years Hearsay Act to permit the introduction of hearsay statements, made by children 16 years of age or younger, concerning violent or sexual offenses. (173-29)


HB 163 — amends Title 18 (Crimes and Offenses) to further provide for the offense of invasion of privacy by criminalizing “upskirting.” (202-0)


HB 185 — amends Title 18 (Crimes and Offenses) to provide that any individual who intentionally causes bodily injury to a person with a physical or intellectual disability is guilty of aggravated assault, a felony of the second degree. (154-48)

THIS WEEK

Capitol Building Reopening on Monday, March 22 The Department of General Services announced the Capitol Building will reopen to the public with enhanced security protocols on Monday, March 22. Visitors must wear a mask and adhere to social distancing. No events will be scheduled inside the Capitol at this time; although outdoor events on the front Capitol Steps, Soldiers Grove and other locations may occur.

The House meets for voting sessions on March 22, 23 and 24. The Senate meets for voting sessions on March 22 and 23.

The Senate Appropriations Committee meets on March 22 at 10 a.m. for budget hearings on the Department of Corrections and the Board of Probation and Parole. The hearing will be livestreamed. Meetings that are broadcast via live-stream can be viewed on the Senate website. You can also view an archive of all recorded meetings in the 2021-2022 session.

Click for Pennsylvania Bulletin — March 20, 2021

HEADLINES FROM CRISCI ASSOCIATES

Fed Up with Incessant Fireworks, Eastern PA Lawmakers Want to Repeal Law

PA House Passes Bill Upping Penalty for Spitting on Cops; Civil Libertarians Raise Concerns

Wolf Admin Grants Sixth Extension to License to Carry Firearm Permits

Two PA Prisons Have Vaccinated More Than 70% of Inmates. An Incentive Program May Be Making a Difference

Commissioners to Declare Westmoreland a ’Second Amendment County’ in Favor of Gun Rights

Lawmakers Launch New Push for Child Sex Abuse Lawsuit Window

‘Ghost Guns’ Banned by PA’s Largest Gun Show Promoter

Immigrant Victims of Crime in PA (and Other States) Hope Congress Eases Visa Hurdles

Supreme Court Chamber, Pennsylvania State Capitol

May 28 is deadline to comment on amendments to Pa.Appellate Rules concerning withdrawal of appearance.

THE BEST OF THE MARSHALL PROJECT

Coronavirus cases behind bars hold steady. Nearly 390,000 people in state and federal prisons have contracted the coronavirus, but this week the figure rose less than 1% from the week before. Nearly a year after the first person in prison died from COVID-19, total deaths remained nearly flat too. Kentucky is the one outlier, with more than 400 new cases last week. In collaboration with The Associated Press, here is our updated tracker.

Many correctional officers say “hell no” to the coronavirus vaccine. As states have begun COVID-19 inoculations in prisons, corrections employees are refusing vaccines at alarming rates. Public health experts worry this will undermine efforts to control the spread of the virus. Infection rates in prisons are more than three times as high as in the general public, but employers cannot mandate that staff get vaccinated.

News Inside: the COVID-19 edition. Prison managers are juggling a lot during the pandemic, so it’s not been easy getting our print news magazine into the hands of people in hundreds of facilities across the country. But this is a must-read issue for incarcerated people and staff alike. Plus there’s a crossword puzzle.

THE BEST OF THE REST

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

After a white gunman killed eight people, six of whom were Asian women, in a series of shootings in spas near Atlanta, some law enforcement officials insisted the crime was motivated by sex, and not race. For many Asian women, however, this distinction is nearly pointless because the two have always been toxically intertwined in American society. Asian women are often perceived as either deceitful “dragon ladies” or delicate sexual objects. In her latest piece for The New York Times, Shaila Dewan unpacks the deep roots of racialized misogyny against Asian women and its consequences. — Weihua Li, data reporting fellow

There’s been a lot of excellent reporting on landlords seeking evictions in spite of the federal moratorium during the pandemic, but Mississippi Today had a truly mind-boggling story, revealing how the state’s laws are tilted against tenants: Landlords can even keep the personal belongings of any tenant who is behind on rent. The story details the case of a woman whose landlord wouldn’t let her take her laptop or even a tub of Vaseline from her apartment, after he got a removal warrant when she was 16 days late on rent. It’s all perfectly legal and unspeakably cruel — the woman couldn’t even keep her children’s baby photos. — Cary Aspinwall, staff writer

March 22, 1933. President Franklin D. Roosevelt signs the Beer and Wine Revenue Act. For details click history.com.

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