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

The information below is from Crisci Associates PA Capitol Digest.

The General Assembly is in recess until September. The House returns to session on September 27. The Senate returns to session on September 20.

Click for Pennsylvania Bulletin — July 24, 2021

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“I cannot eat because I have no teeth.” Incarcerated people, especially those who haven’t been in prison very long, are routinely denied basic dental care — including fillings for cavities, crowns, dentures and treatment of toothaches. The state of Michigan is especially stingy with care, and is the subject of a current lawsuit. In court filings and interviews, dozens of prisoners complained that their decaying teeth were left to rot and ache. Our Keri Blakinger has the story, describing how she was “blindsided by the lack of dental care behind bars,” in the latest installment of Inside Out.

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

Florida is currently leading the country in arrests stemming from the January 6th Capitol insurrection. I’m sure many will explain that fact with lazy stereotypes. But for Brian Levin — a police officer turned academic who studies extremism — it indicates the rising power in a little-known arm of Trumpism: the “constitutional sheriffs” movement. These sheriffs argue that their own authority is higher than that of the federal government. At Florida Today, reporter Alexandra Sassoon profiles Brevard County Sheriff Wayne Ivey, showing how, although he is not an official member of the movement’s leading organization, he adopts its rhetoric. She quotes a variety of researchers on how this can inspire extremism. This is a good, careful model of how to hold local law enforcement officials accountable for what they say, even when the concrete effects can’t be measured directly. — Maurice Chammah, staff reporter

This week I’m loving a long-form piece by Piper Kerman, the woman who wrote Orange is the New Black. Writing now for Washington Post Magazine, Piper revisits the story of Johnniqua Charles, more commonly known as the “Lose Yo Job” lady. Johnniqua’s full story – and all the pieces that didn’t make the news last year – is heartbreaking, and would on its own be a worthy read about the failures of the criminal justice system. But Piper links the tale to this political moment, and points to some possible lessons the story could hold for President Biden and other Democratic politicians who seized on the viral video after their Election Day wins. On top of that, the piece is packed with shocking asides and anecdotes, data I either somehow never knew or managed to forget. Did you know the first Black, female astronaut was slammed to the ground by a cop during a routine traffic stop in 1996, then jailed for a speeding ticket? — Keri Blakinger, staff reporter

PETITIONS OF THE WEEK By MITCHELL JAGODINSKI

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the proper standard of liability applied to police high-speed driving incidents, the relevance of training and law enforcement policies in qualified-immunity cases, and whether the First Amendment protects the right to record police officers carrying out their official duties in public spaces.

In 1998, the Supreme Court held that high-speed police chases resulting in death, due to “deliberate or reckless indifference to life,” do not violate substantive due process rights unless the officer intended to cause harm unrelated to the legitimate object of arrest. While the U.S. Courts of Appeals for the 8th and 9th Circuits follow a strict “intent-to-harm” standard in all cases involving police high-speed driving, courts in other circuits have opted for a more objective standard. The U.S. Courts of Appeals for the 3rd, 4th, 7th and 10th Circuits inquire into the specific circumstances of each case to determine whether the officer had an opportunity to deliberate and whether the emergency justified such driving – often applying a deliberate-indifference standard rather than intent-to-harm.

In Braun v. Burke, officer Brian Burke drove his cruiser for about five minutes at an average speed of over 90 mph, past 60 other vehicles, with no blue lights or siren engaged, before colliding with a bystander vehicle at 98 mph, killing both occupants. Burke claimed that he was seeking an SUV that he saw speeding earlier. But he did not claim to have been in “pursuit,” and according to Arkansas State Police policy, pursuit requires that “lighting equipment and siren shall be in operation throughout the pursuit.” Lori Braun sued in district court on behalf of Cassandra Braun, who was killed in the accident. But the district court dismissed – in reliance on the intent-to-harm standard – holding that no due process violation occurred because there was no evidence that the officer “intended” to harm anyone. The 8th Circuit affirmed, agreeing that the intent-to-harm standard was proper and declining to consider whether an objective emergency was present or whether actual deliberation occurred.

High-speed driving accidents involving police officers result in a fatal crash every day in the United States, and analysis of such incidents varies by circuit. The justices are asked for their review to clarify whether the intent-to-harm culpability standard of liability should be used to resolve all claims arising from high-speed driving incidents or if some further inquiry is required when the circumstances call for it.

Next, in Frasier v. Evans, the court is presented with another question surrounding police liability and a First Amendment question involving the right to record officers. The city of Denver police are trained that members of the public have the “right to record them.” In 2014, Levi Frasier took out his tablet to record an altercation between police and a suspect, which resulted in the suspect being taken away in an ambulance. After the officers involved noticed Frasier recording the incident, they approached him and pressured him to hand over the device before searching through it for the footage.

Frasier sued in district court, arguing that the officers violated his First Amendment rights by retaliating against him for filming them. The district court rejected the officers’ claim that they are entitled to qualified immunity, reasoning that it would make no sense to allow the city and county to avoid liability on the ground that it had a “policy in place” while also allowing the individual officers to invoke qualified immunity on the ground that the law was not sufficiently clear to put them on notice. The officers appealed, and the 10th Circuit reversed, reasoning that judicial decisions – not training or municipal policies – are the only valid source of clearly established law and the circuits are split over whether the First Amendment protects the right to record officers performing their official duties in public places. Because the appellate court also decided that lower-court decisions on the issue were not enough to clearly establish the rule, it reversed. Frasier asks the Supreme Court for review to clarify whether training and law enforcement policies can be used as evidence in a qualified-immunity inquiry and whether the right to record police officers is a clearly established First Amendment right.

These and other petitions of the week are below:

Braun v. Burke
21-10
Issues: (1) Whether a court should apply the intent-to-harm standard of liability to all police high-speed driving, as have the 8th and 9th Circuits, or instead employ an analysis which examines the facts of individual cases to decide whether there was an opportunity to deliberate and apply the standard of deliberate indifference or another standard other than intent-to-harm, as have the 3rd, 4th, 7th, and 10th Circuits; and (2) whether a court reviewing high-speed driving by a police officer should use an objective test to determine whether an emergency existed, as have the 3rd, 4th, and 7th Circuits, or rely merely on the asserted claim of an officer that he subjectively believed there to be an emergency, as has the 8th Circuit.

Hargreaves v. Nuverra Environmental Solutions, Inc.
21-17
Issue: Whether the doctrine of equitable mootness is inconsistent with the federal courts’ “virtually unflagging” obligation to hear and decide cases within their jurisdiction.

Shenandoah Valley Juvenile Center Commission v. John Doe
21-48
Issues: (1) Whether professional judgment rather than deliberate indifference is the proper constitutional standard for a claim of inadequate medical care brought against a secure juvenile detention center by a minor immigrant detainee in federal custody; and (2) whether a minor’s claim for injunctive relief seeking constitutionally adequate medical treatment from a secure juvenile detention center may be redressed by the court without a parent, guardian, or legal custodian joined as a party to the case.

Frasier v. Evans
21-57
Issues: (1) Whether training or law enforcement policies can be relevant to whether a police officer is entitled to qualified immunity; and (2) whether it has been “clearly established” since at least 2014 that the First Amendment protects the right of individuals to record police officers carrying out their duties in public.

Posted in FeaturedCases in the Pipeline

Cases: Braun v. BurkeHargreaves v. Nuverra Environmental Solutions, Inc.Shenandoah Valley Juvenile Center Commission v. John DoeFrasier v. Evans

Recommended Citation: Mitchell Jagodinski, High-speed pursuit liability and other questions surrounding police activities, SCOTUSblog (Jul. 23, 2021, 4:56 PM), https://www.scotusblog.com/2021/07/high-speed-pursuit-liability-and-other-questions-surrounding-police-activities/

Oklahoma criminal justice system deals with Supreme Court’s McGirt decision in favor of tribal land claims. Click for full report from Washington Post.

July 26, 1775. United States Post Office Established. Click for details from history.com.

September 10 is deadline to comment on proposed Amendments to Appellate Rules 1115 and 1116

concerning petitions for allowance of appeals and answers thereto. Click for report.

The information below is from Crisci Associates PA Capitol Digest.

The General Assembly is on summer recess.

Click for Pennsylvania Bulletin — July 17, 2021

HEADLINES from Crisci Associates

Pittsburgh is Getting its First Drive-Thru Medical Marijuana Dispensary

PA Lawmakers Creating Bill to Stop Cell Phone Use While Driving and Mandate Police Collect Race Data on Traffic Stops

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Everyone on death row gets a lawyer. Not everyone gets a Kim Kardashian. No one seems to know why some death penalty cases attract celebrity advocates and become national stories, symbolizing the flaws in our system of capital punishment. But all the attention celebrities draw probably does more good than harm to those who believe they were wrongfully convicted or sentenced. Take the case of Rodney Reed, now pending in Texas. The death row prisoner has Kardashian, Oprah, Beyoncé and Dr. Phil on his side as he waits for a hearing that could determine his fate.

“Thank you for not giving up on me.” Thomas Koskovich spends part of his two consecutive life sentences as a teachers’ aide in New Jersey State Prison. In the latest installment of our “Life Inside” series, he recounts one episode with a “hard case,” a young student who at first was more interested in drawing attention to himself than in learning. Koskovich recalled that he had once been a “hard case,” too, and used that experience to turn his student on to the power of knowledge. “I had actually helped this guy!” Koskovich writes.

Deaths from drugs or alcohol increased by more than 600% in state prisons from 2001 to 2018, according to our analysis of new government data. The problem seemed to be getting worse even before the coronavirus hit; 2018 had the highest number of prison deaths since the feds started tracking such information. Corrections officials cannot stop the drugs from getting in — an age-old contraband problem — and typically don’t offer enough help to prevent prisoners from overdosing.

Shining a light on what life is like for those in immigration detention facilities in New Jersey. Photographer and anthropologist Cinthya Santos-Briones’s new multimedia project, “Spaces of Detention,” recruits formerly detained people to share their visual perspectives on ICE custody during the Trump era. “What resulted were detailed images of brick walls, prison layouts, security cameras, metal fences and tray after tray of processed food,” writes Ariel Goodman. “The overall theme is the drowning monotony of life behind bars.”

The words that define incarcerated people. We don’t all talk the same way about the people who are locked away in our prisons and jails. People in different parts of the country use different terms. “It’s our aim to educate readers on regional differences while weighing in on our reasons for refraining from such labels,” writes Lawrence Bartley, the director of “News Inside,” about the latest edition of TMP’s print publication distributed in hundreds of prisons and jails across the country.

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

As Robert Kolker reported for us a few years ago, there is a quiet revolution underway in the world of homicide detectives — specifically in the way they conduct interrogations. The aggressive, self-assured style of the past is giving way to more subtle methods. As a practical matter, police have to figure out when witnesses or suspects are telling the truth and when they are lying. This story from Discover Magazine provides a fascinating overview of the science of deception detection. It turns out that most of our cultural assumptions about how people act when they’re lying are actually wrong. But researchers are using technology to do better; whether they succeed or fail, these experiments are fascinating. — Maurice Chammah

SUPREME COURT ANNOUNCES OCTOBER ARGUMENT SCHEDULE By AMY HOWE

Although the Supreme Court only recently finished releasing opinions from its 2020-21 term, it is already looking ahead to the new term that will begin this fall. On Tuesday the court released the schedule for the justices’ October argument session, which begins on Oct. 4 and runs through Oct. 13. The justices will hear oral argument in nine cases over five days (with a day off to observe a federal holiday on Oct. 11), including arguments in two high-profile cases involving the federal government’s efforts to reinstate the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev and the government’s assertion of the “state secrets” privilege in a case against former CIA contractors.

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, as several federal courts of appeals (including the U.S. Courts of Appeals for the 2nd11th and Federal Circuits) have done or plan to do in the fall.

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

Mississippi v. Tennessee (Oct. 4): A long-running dispute between the two states over groundwater in an aquifer. A lower-court judge appointed by the justices to review the case recommended that Mississippi’s complaint be dismissed.

Wooden v. United States (Oct. 4): Whether thefts from 10 different units in a mini-storage facility, as part of the same crime spree, qualify as crimes that were committed on different occasions for purposes of the Armed Career Criminal Act, which requires enhanced sentences for repeat offenders who commit crimes with guns.

Brown v. Davenport (Oct. 5): In a case in which an inmate was convicted of premeditated murder after a trial at which he was shackled, the justices will weigh in on the standard for determining whether a constitutional error is “harmless” when a defendant is seeking federal post-conviction relief.

Servotronics v. Rolls-Royce (Oct. 5): Whether a district court’s discretion to order testimony or the production of documents “for use in a foreign or international tribunal” extends to discovery for use in a private foreign arbitration.

United States v. Zubaydah (Oct. 6): Whether the government can assert the “state secrets” privilege, which allows it to block the release of sensitive national-security information in litigation, in a case brought against former CIA contractors by a prisoner at Guantanamo Bay who alleges he was tortured at a CIA “dark site.”

Cameron v. EMW Women’s Surgical Center (Oct. 12): Whether Kentucky’s attorney general can intervene in a lawsuit to defend a state law that would ban the use of the “dilation and evacuation” method of performing abortions after the state’s health secretary declined to defend the law against the legal challenge. 

Hemphill v. New York (Oct. 12): Whether and under what circumstances a defendant “opened the door” to the use of evidence that would otherwise be barred by the Constitution’s confrontation clause.

United States v. Tsarnaev (Oct. 13): Whether to reinstate the death sentences that the U.S. Court of Appeals for the 1st Circuit threw out on the grounds that the district court should have asked potential jurors about media coverage of the case and should not have excluded evidence that Tsarnaev’s older brother, who placed one of the bombs, was involved in a separate triple murder.

Babcock v. Saul (Oct. 13): Whether pensions for “dual-status” technicians, who are paid as either federal civil servants or members of the military, depending on the jobs that they perform, are “a payment based wholly on service as a member of a uniformed service” for purposes of a provision of the Social Security Act aimed at ensuring that retirees who receive a pension from two different systems do not receive a “windfall.”

This article was originally published at Howe on the Court.

Posted in FeaturedMerits Cases

Cases: United States v. TsarnaevCameron v. EMW Women’s Surgical Center, P.S.C.Hemphill v. New YorkServotronics Inc. v. Rolls-Royce PLCBrown v. DavenportUnited States v. ZubaydahWooden v. United StatesBabcock v. SaulMississippi v. Tennessee

Recommended Citation: Amy Howe, Cases on Boston Marathon bomber, CIA secrets headline October argument calendar, SCOTUSblog (Jul. 13, 2021, 4:30 PM), https://www.scotusblog.com/2021/07/cases-on-boston-marathon-bomber-cia-secrets-headline-october-argument-calendar/

JULY 20 , 1969. Neil Armstrong walks on the Moon. Click for report from history.com

The information below is from Crisci Associates PA Capitol Digest.

The General Assembly is in recess until September.

Click for Pennsylvania Bulletin — July 10, 2021

PETITIONS OF THE WEEK

By MITCHELL JAGODINSKI


This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the power of Congress to criminalize cockfighting under the commerce clause and the proper definition of “functionality” as applied to trade dress.

Puerto Rico is a United States territory, with its own constitution. And like a state, it is an autonomous political entity sovereign over matters not covered by the United States Constitution. For the past 400 years, cockfighting has been practiced on the island and is still today proclaimed by Puerto Rican law to be a “cultural right of all Puerto Ricans.” Although illegal under federal law since 1976, Congress continued to permit cockfighting where permissible under local law until 2018, when Congress passed Section 12616 of the Agriculture Improvement Act. Section 12616 eliminated the local law exemption of the Animal Welfare Act and effectively criminalized cockfighting in Puerto Rico. In Ortiz-Diaz v. United States, various individuals and organizations involved in the Puerto Rican cockfighting industry challenge the authority of Congress to govern what they consider a local custom. They insist that cockfighting is the island’s “national sport,” pointing to over 70 “cockpits” located throughout Puerto Rico, which host tens of thousands of cockfights each year, supporting an estimated 11,000 jobs and generating $65 million in annual revenue.

The district court and the U.S. Court of Appeals for the 1st Circuit rejected the challengers’ lawsuit, holding that Section 12616 was a proper use of Congress’ authority to regulate commerce under the commerce clause because of the substantial effect cockfighting has on interstate commerce. The challengers claim that such a holding raises federalism concerns, insisting that cockfighting is an inherently local issue that Puerto Ricans have the right to govern separate from the federal government. They also argue that the regulation of animal sports has generally been left to the states, citing examples such as rodeos, livestock shows, horse racing and hunting. Additionally, they argue that cockfighting has no effect on interstate commerce and ask the justices to grant cert to enforce the “outer limits” of the commerce clause and restore Puerto Rican sovereignty over what it considers a legitimate sport on the island.

Ezaki Glico Co. v. Lotte International America Corp. presents the justices with an intellectual-property question involving “trade dress” for the popular snack food Pocky, a thin, rod-shaped biscuit with a chocolate or cream coating. Trade dress refers to a product’s unique design or shape, such as the tear-drop shape of a Hershey’s Kiss. To be entitled to trademark protections, one requirement is that the unique trade-dress attribute cannot be “functional.”

Pocky and its competitor, as depicted in the cert petition.

Ezaki Glico Co., the manufacturer of Pocky, sued Lotte International America Corp., a rival snack-food company, after Lotte began selling a similar chocolate-coated biscuit snack. Glico argued that Lotte committed trade-dress infringement, but the district court and the U.S. Court of Appeals for the 3rd Circuit ruled that the design of Pocky is functional. In its cert petition, Glico argues that the 3rd Circuit applied an improper definition of functionality – departing from traditional trademark doctrine and the majority of other circuits – when it ruled that Pocky’s design is “useful” for being eaten and shared. Glico argues that this definition lowers the threshold for functionality and that alternative designs serving the same purpose should create a question of fact on functionality. The recognized tests for functionality, Glico continues, classify a product’s feature as functional only if it is essential to the use or purpose, if it affects the cost or quality, or if its exclusive use puts competitors at a significant disadvantage. Glico argues that a finding of functionality based on usefulness and “nothing more” threatens the uniformity of trade dress across the county and asks the court to announce the proper test for functionality.

These and other petitions of the week are below:

Ortiz-Diaz v. United States
20-1735
Issue: Whether Congress has power under the commerce clause to criminalize cockfighting on the island of Puerto Rico.

Morales-Vázquez v. QBE Seguros
20-1779
Issue: Whether the traditional doctrine of uberrimae fidei (“utmost good faith”) continues to apply in its strict form (as held by the U.S. Court of Appeals for the 1st Circuit in the decision below and also by the U.S. Courts of Appeals for the 3rd, 9th, and 11th Circuits), or is the doctrine limited to cases in which the insurer relied on a mistake or omission when issuing the policy (as held by the U.S. Courts of Appeals for the 2nd and 8th Circuits), or is the traditional doctrine no longer part of federal maritime law (as held by the U.S. Court of Appeals for the 5th Circuit), or should the doctrine be modified to limit an insurer’s ability to avoid the policy (which would restore uniformity with the law in England).

Ezaki Glico Co. v. Lotte International America Corp.
20-1817
Issues: (1) Whether trade dress is “functional” if it is “essential to the use or purpose of the article” or “affects the cost or quality of the article,” as the Supreme Court and nine circuit courts have held, or if it is merely “useful” and “nothing more,” as the U.S. Court of Appeals for the 3rd Circuit held below; and (2) whether the presence of alternative designs serving the same use or purpose creates a question of fact with respect to functionality, where the product’s design does not affect cost or quality and is not claimed in a utility patent.

Lewis v. Pension Benefit Guaranty Corporation
21-2
Issue: Whether the U.S. Court of Appeals for the D.C. Circuit improperly extended Chevron deference to Pension Benefit Guarantee Corporation’s construction of ambiguous statutory provisions in informal, non-binding adjudications undertaken not in the agency’s congressionally assigned role as insurer (or in any other regulatory capacity) but instead as a plan trustee and fiduciary.

Posted in FeaturedCases in the Pipeline

Cases: Ortiz-Diaz v. United StatesMorales-Vázquez v. QBE SegurosEzaki Glico Co. v. Lotte International America Corp.Lewis v. Pension Benefit Guaranty Corporation

Recommended Citation: Mitchell Jagodinski, Cockfighting in Puerto Rico and trade-dress protections for snack foods, SCOTUSblog (Jul. 9, 2021, 4:20 PM), https://www.scotusblog.com/2021/07/cockfighting-in-puerto-rico-and-trade-dress-protections-for-snack-foods/

July 14, 1789. French revolutionaries storm the Bastille. Click for report from history.com.

The information below is from Crisci Associates.

With the General Assembly in recess until September, attention in Harrisburg focuses
on the Governor, who can sign or veto bills passed in the last few weeks. A two thirds
majority vote of each chamber of the General Assembly is required to override a veto.

Governor Wolf vetoed Senate Bill 516 — which would have amended the Judicial Code (Title 42) concerning payment of court costs, restitution and fines. (Read his veto message here.) The bill had passed the House (109-92) and the Senate (34-19).

Governor Wolf signed into law the following bills:

House Bill 156 as Act 29, which addresses the admissibility of an out of court statement by a child victim.  The new law raises the admissibility limit from 12 to 16 years of age.

House Bill 741 as Act 35, known as Justin’s Law, concerning emergency contact information for residents at drug and alcohol recovery houses.

House Bill 944 as Act 41 requiring inpatient treatment facilities to notify the emergency contact person if a resident leaves the facility against medical advice.

House Bill 954 as Act 42 concerning dissemination of information about child abuse investigations.

House Bill 1024 as Act 44 which updates the 2016 Medical Marijuana Act.

House Bill 1147 as Act 45 concerning sex offender treatment.

House Bill 246 as Act 32 concerning human trafficking.

House Bill 843 as Act 38 making a criminal conviction for human trafficking a factor to be considered in determining a child custody case.

House Bill 1429 as Act 48 creating the offense of financial exploitation of an older adult or care dependent person.

House Bill 1431 as Act 49 concerning abuse of care dependent person.

Senate Bill 81 as Act 52 providing for the use of expert witnesses in criminal cases involving domestic violence and certain sexual offenses.

Senate Bill 87 as Act 53 concerning sentencing for sexual offenses against children and establishing a task force on child pornography.

Senate Bill 411 as Act 59 amending Title 42 and Title 61 regarding parole and post-release parole supervision responsibilities of the PA Board of Probation and Parole and the PA Department of Corrections.

Fall Session Schedule

House

September 27, 28, 29; October 4, 5, 6, 25, 26, 27; November 8, 9, 10, 15, 16, 17; December 13, 14, 15

Senate

September 20, 21, 22, 27, 28, 29; October 18, 19, 20, 25, 26, 27; November 15, 16, 17; December 13, 14, 15

Click for Pennsylvania Bulletin of July 3, 2021

HEADLINES FROM CRISCI ASSOCIATES

Why Krasner is Asking PA’s High Court to Change How Jurors Hear Use-of-Force Law 

Wolf Signs Off on Revisions to PA Medical Pot Law

PA Law Intended to Punish Drug Dealers in Overdose Cases Could Be Backfiring

Post-Gazette Editorial Board: Sweeping Reform Needed for PA Juvenile Justice System

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Final update. We have published the final update to our weekly tracker of COVID-19 infections and deaths in prison. In collaboration with the AP, we recorded more than half a million cases of infection and nearly 3,000 deaths among the incarcerated people and staff of all 50 state prison systems, as well as the federal department of corrections.

Broken promises, lost lives. When the pandemic arrived last spring, politicians and corrections officials in many states promised to release older people from prison early, to limit the spread of COVID-19. Many were released, but thousands of others were not, including many ill prisoners never convicted of violent crimes. Some of those who didn’t make it out died from the virus. “This was negligence, just plain negligence,” says an incarcerated person in Virginia with a medical condition who is still waiting on a conditional pardon. In collaboration with Mother Jones, Lisa Armstrong has our story.

The Biden administration takes aim at Trump’s harsh deportation policies. Homeland Security officials are beginning to review some of the hundreds of thousands of deportation cases processed during the Trump era. President Biden had already promised to act on military veterans, but the review is expanding to include young immigrants excluded from DACA protections and those who claim they were deported in retaliation for protesting immigration policies. In partnership with Politico, Julia Preston has our story.

Want to write a felony re-enfranchisement story? We just did, and discovered the many barriers, institutional and otherwise, that keep the formerly incarcerated from registering to vote. We also learned how difficult it is to collect and then make sense of the data from state officials around the country. TMP’s Andrew Calderon offers some data-centric guidance to journalists and researchers interested in this important and overlooked pool of voters and the challenges they face to cast a ballot.

THE BEST OF THE REST

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

For the New York Times Magazine, Emily Bazelon wrote a deeply reported narrative about a man who was wrongfully convicted. Everyone should read it, but not just because of the rare happy ending in an unfair system — but also because of what it can teach journalists. This is a roadmap to compassionate reporting. True, Emily has been able to do something most newspaper reporters can’t do: She got involved in the story. And she’s transparent about that, framing it in a lot of first-person storytelling. But what stood out to me was the way she describes her other interactions with the main subject of her story, the casual back-and-forth and the willingness to listen. She captures the complexities of these interactions so artfully, in a way that I think will ring true to anyone who’s done an extensive amount of prison reporting. As journalists, we ask so much of our sources, especially the incarcerated ones who put so much on the line when they talk to us. It’s so gratifying to see such a high-profile journalist giving this give-and-take such careful thought. —Keri Blakinger, staff reporter

It’s time to talk about constables. For the Houston Chronicle, St. John Barned-Smith took a dive into a distinctly Texas policing entity: county constables. Though sheriffs get a lot more attention nationally, a series of troubling policing scandals have emerged from the state’s hundreds of county constable offices. Most recently, there was the explosive lawsuit accusing one constable’s office of sex abuse that was essentially disguised as undercover policing. But before that there were corruption scandals, campaign scandalsevidence-destruction scandals, and money laundering scandals — not to mention the longstanding concerns about how these offices sometimes seem to function as pay-to-play policing for rich people. Despite all the problems, critics say they don’t add much value, since constables do a lot of the same things that sheriffs and police do anyway. So does Texas really need them? —Keri Blakinger, staff reporter

Historically, public fear about violent crime — real or imagined — has powered punitive and draconian justice policy and fed mass incarceration. In recent months, this has led some well-meaning commentators to downplay increases in violent crime, out of concern that it will spur more of the same, writes Eric Levitz for New York Magazine. He argues that this tendency is at best, politically ineffective, and at worst, a profound moral failure. Instead Levitz invites progressives to embrace the notion that any increase in violent crime is worthy of our attention and concern, and to put forth a clear vision on how to repair it. “Our best bet for resisting a punitive turn in criminal-justice policy is to convince voters that our approach to public safety is more effective than the pro-carceral status quo,” Levitz writes in a quick, thoughtful analysis that is well-worth your time. —Jamiles Lartey, staff reporter

“This is why our agency is broken.” One reason why so few federal prisoners get adequate medical care is that top officials at the Bureau of Prisons responsible for health care lack basic medical training and experience. The BOP official in charge during the pandemic reportedly claimed that sunscreen, not the sun, caused skin cancer and that there was no such thing as radon. The problem is not limited to the federal system. Prisons across the country are similarly understaffed or led by medical professionals with dubious qualifications. In collaboration with NBC News, Keri Blakinger has the latest in our “Inside Out” series.

Lessons not learned from COVID-19 in prisons. Corrections officials are still struggling to implement public health policies to better protect the incarcerated and staff from this pandemic – and the next. That’s one of the takeaways from our 15-month effort to chronicle the 500,000 cases of COVID-19 inside state and federal prisons across the country. Some penitentiaries simply don’t have the space for “social distancing.” Others suffer from chronic understaffing and budget shortfalls that preclude medical supplies. TMP’s Katie Park and Keri Blakinger and the AP’s Claudia Lauer wrap up the series.

“Daddy, if I come see you, will I be locked up, too?” Demetrius Buckley couldn’t bring himself to tell his 10-year-old daughter that he was in prison for murder; when they finally connected over the telephone, he told her he had gone overseas for work instead. He’s tried desperately to stay connected with her, through calls and JPay emails, as she has grown more inquisitive about his life behind bars. “Do you get lonely, daddy?” she asked. “Do you have friends in there? Can you go outside?” Here is the latest installment of our “Life Inside” series.

Prisons continue to open up for visitation as coronavirus rates wane. Corrections officials in 11 more states ordered the resumption of some form of family visitation, according to our updated tracker. Forty prison systems across the nation now allow such visits, with some pandemic-related restrictions. Virginia and Alabama continue to ban all visitation. Nine states still allow lawyers to visit their clients behind bars, but prohibit visitation from family members.

July 6, 1946. George W. Bush, 43rd President, born. Click for biography from whitehouse.gov.

The information below is from Crisci Associates PA Capitol Digest.

The State Budget having been approved, the General Assembly is in summer recess. The House returns of session on September 27. The Senate returns to session on September 20.

Before adjourning, the following bills were passed last week. Except for HB 184 and SB 708, the bills head to the Governor for his action.

HOUSE

HB 741 — adding 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)

HB 1429 — amends Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes providing for the offense of financial exploitation of an older adult or care-dependent person. (201-0)

SB 81 — amending Section 5920 of Title 42 to expand the list of offenses whereby an expert may testify in sexual and domestic assault cases. (201-0)

SB 411 — amending Title 42 and Title 61 regarding parole and post-release parole supervision responsibilities of the PA Board of Probation and Parole and the PA Department of Corrections. (201-0)

SB 87 — amending the Crimes Code, Domestic Relations Code, and the Judicial Code concerning the sexual abuse of children and the creation of a task force on child pornography. (199-2)

SENATE

SB 411 — amending Title 42 and Title 61 regarding parole and post-release parole supervision responsibilities of the PA Board of Probation and Parole and the PA Department of Corrections. (47-3)

HB 184 — amending Title 18 (Crimes and Offenses) requiring the Pennsylvania Commission on Sentencing to provide for a sentence enhancement for a conviction of causing or aiding suicide. (34-16). This bill was recommitted to the House and referred to the House Rules Committee.

HB 1147 — amending the Judicial Code concerning sexual offender treatment. (50-0)

HB 1429 — amends Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes providing for the offense of financial exploitation of an older adult or care-dependent person. (49-1)

HB 1431 — amending the Crimes Code (Title 18) concerning abuse of a care-dependent person. (48-2)

SB 708 — amends the Crime Victims Act, to better provide information and compensation to victims. (50-0) This bill goes to the House for consideration.

HB 1024 — making omnibus amendments to the Medical Marijuana Act. (47-3)

HB 156 — amending Title 42 (Judiciary and Judicial Procedure), Chapter 59 (Depositions and Witnesses), Subchapter D (Child Victims and Witnesses), Section 5985.1 (Admissibility of certain statements) to increase the age for admissible out-of-court statements made by a child victim or witness. (49-1)

HEADLINES FROM CRISCI ASSOCIATES

Bill Cleaning Up PA’s Medical Marijuana Law, Without Home Growing Provision, Heads to Wolf

New Ruling Requires PA Courtrooms to Return to ‘Pre-Pandemic’ Operations

Bill Allowing Students to Repeat a Grade Due to COVID Goes to Gov. Wolf. But Will He Sign It?

Click for Pennsylvania Bulletin of June 26, 2021.

THE BEST OF THE MARSHALL PROJECT

Final Update. We have published the final update of our weekly tracker of COVID-19 infections and deaths in prison. In collaboration with the AP, we recorded more than half a million cases of infection and nearly 3,000 deaths among the incarcerated people and staff of all 50 state prison systems, as well as the federal department of corrections. New cases have dipped to fewer than 400 a week — a dramatic fall from the December peak, when infections rose above 20,000 for two consecutive weeks. For other sources of data, visit the COVID PRISON PROJECT and the UCLA LAW COVID BEHIND BARS DATA PROJECT.

What about the hundreds of thousands of people hospitalized by police? While the debate about excessive force focuses on police killings, there is little data tracking those injured seriously enough during violent police encounters to require hospitalization. Since 2015, at least 400,000 people have been treated in emergency rooms after violent encounters with police or security guards, but little is known about those cases because so few agencies tally or disclose them. San Jose, California, is an exception to the rule: Officials there require police to report injuries and encourage officers to take injured people for medical care.

Millions with felonies can now vote. Many don’t know it. No more than 1 in 4 of the tens of thousands of formerly incarcerated people whose voting rights were restored before the 2020 election in key states registered to vote, our new analysis found. Corrections officials in many states, including the four we surveyed, are not required to tell newly-enfranchised people of their rights, leaving the job to voting rights organizers. Political alienation, lack of information, fear of consequences, unstable housing, and skepticism about voting all discourage formerly incarcerated people from registering and going to the polls.

A dog can be trained to be “anti-Black.” “Mauled,” a new short film, examines how dogs have been used to terrorize and control communities of color for centuries.The documentary was produced by Reckon, part of Advance and Alabama Media Group. The film is based on reporting from a year-long investigation by AL.COM, The Marshall Project, USA Today, IndyStar and the Invisible Institute that won the 2021 Pulitzer Prize for National Reporting

THE BEST OF THE REST

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

In a model of brisk storytelling and investigative rigor, the Chicago Reader’s Michael Murney describes how, at the height of the pandemic, Illinois prisons released people to “residential reentry centers.” Officials may have hoped to stem the spread of the virus on the cell-blocks, but the reentry centers grew overcrowded, putting many men at risk. Murney profiles one of these men, Willie Jones, and zooms out to provide a wide-ranging portrait of the politics of COVID-19 and criminal justice reform in the Windy City. — Maurice Chammah

Maybe it’s because I saw stark differences in punishment for white-collar crime versus low-level drug crimes while covering courts for years in local news, but I’m both captivated and ticked off by Propublica’s newest scoop from a trove of IRS files they obtained. They lay out in crystal clear detail how billionaire Peter Thiel has maneuvered Roth IRAs — designed to be a way for middle-class Americans to save for retirement — into “a gargantuan tax-exempt piggy bank.” I love the granular details they provide: If each of Houston’s 2.3 million residents socked away $2,000 in a Roth IRA, they still wouldn’t have as much money as Thiel. As you scroll through the story, a clever graphic shows the massive growth of his account over time. — Cary Aspinwall

PETITIONS OF THE WEEK, By MITCHELL JAGODINSKI

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the use of acquitted conduct in sentencing decisions, when a sentencing court must consider a defendant’s juvenile status as a mitigating factor, and compassionate release under the First Step Act.

According to the federal Sentencing Guidelines, a judge may adjust the recommended range of an offense based on a defendant’s “relevant conduct.” While the jury considers whether conduct is proven beyond a reasonable doubt, relevant conduct for sentencing purposes need only be proven to the judge by a preponderance of the evidence and can include acquitted conduct. In Osby v. United States, Erick Osby was indicted on seven charges; the jury convicted him of two and acquitted him of the other five. But because the judge considered his acquitted charges as relevant conduct, his sentence was the same as it could have been had he been convicted by the jury of all seven charges. Osby argues that adjusting a sentence based on acquitted conduct violates his rights under the Fifth and Sixth Amendments, which guarantee due process under the law and the right to a jury trial. While the Supreme Court has declined to address similar questions on this topic in the past, some of the justices have expressed their discontent with the practice of using acquitted conduct in sentencing decisions. Osby asks the justices for their review to decide whether the practice is unconstitutional.

Next, in Sanders v. Radtke the justices are asked to consider the impact of juvenile status on sentencing decisions. The petitioner, Rico Sanders, was convicted of multiple rape and assault charges at the age of 15 and sentenced to 140 years in prison with the possibility of parole at age 51. Sanders maintains that the Eighth Amendment and prior precedent required the sentencing court to consider his youth as a mitigating factor. He argues that the principle requiring sentencing courts to consider youth as a mitigating factor applies to life sentences with the possibility of parole in the same way it applies to life sentences without any possibility of parole. The petition further alleges that Sanders’ youth was used as an “aggravating factor” by the sentencing court, and he seeks the court’s review to clarify the circumstances under which a defendant’s youth must be considered as a mitigating factor.

Finally, Bryant v. United States presents a question regarding the compassionate-release provision of the federal criminal code, as amended by the First Step Act of 2018. The compassionate-release provision allows a district court to grant a sentence reduction and order immediate release upon a finding that a federal prisoner’s circumstances are “extraordinary and compelling” and that the sentence reduction is “consistent with applicable policy statements issued by the Sentencing Commission.” In 2007, the Sentencing Commission promulgated a policy statement listing “extraordinary and compelling” reasons for compassionate release and encouraging the Bureau of Prisons to file motions for compassionate release whenever prisoners were found to meet the criteria. However, in 2018, Congress passed the First Step Act, which amended the compassionate-release provision to allow federal prisoners to file motions for relief as well, rather than depending on the Bureau of Prisons to move for release.

In 2019, Thomas Bryant filed a motion for compassionate release in district court. The government opposed his motion and argued that the reasons given in Bryant’s motion did not satisfy the criteria in the 2007 policy statement. Further, the government argued that the 2007 policy statement was an “applicable” policy statement under the compassionate-release provision and that the district court was thus bound by it. The district court denied Bryant’s motion based on the reasons given by the government, and the U.S. Court of Appeals for the 11th Circuit affirmed. Bryant argues that the decision created a circuit split, in direct conflict with eight other circuits, over whether district courts are bound by the 2007 policy statement when deciding defendant-filed motions. He seeks review to clarify what constitutes an “applicable” policy statement for defendant-filed motions under the First Step Act.

These and other petitions of the week are below:

Osby v. United States
20-1693
Issue: Whether basing a criminal defendant’s sentence on charges of which the jury acquitted him violates the Fifth or Sixth Amendments.

Palade v. Board of Trustees University of Arkansas System
20-1698
Issue: Whether the lower courts erred in holding that Petitioners lacked standing to seek declaratory relief concerning the retroactive application of newly revised policies concerning the grounds for dismissal and academic discipline to faculty who are on the tenure-track and faculty who have already earned tenure under prior Board of Trustees policies.

Sanders v. Radtke
20-1728
Issue: Whether Eighth Amendment precedent clearly establishes that a sentencing court must consider a defendant’s juvenile status as a mitigating factor before imposing a life sentence with a remote possibility of parole.

Bryant v. United States
20-1732
Issue: Whether Section 1B1.13 of the United States Sentencing Guidelines is an “applicable” policy statement that binds a district court in considering a defendant-filed motion for compassionate release under 18 U.S.C. 3582(c)(1)(A), as amended by the First Step Act of 2018.

Berrier v. Delaware River Joint Toll Bridge Commission
20-1761
Issue: Whether compacting States, simply by creating an interstate compact, relinquish all sovereign authority over that compact entity unless expressly reserved.

Posted in Cases in the Pipeline

Cases: Osby v. United StatesPalade v. Board of Trustees University of Arkansas SystemSanders v. RadtkeBryant v. United StatesBerrier v. Delaware River Joint Toll Bridge Commission

Recommended Citation: Mitchell Jagodinski, Sentencing questions raising constitutional concerns, SCOTUSblog (Jun. 25, 2021, 5:14 PM), https://www.scotusblog.com/2021/06/sentencing-questions-raising-constitutional-concerns/

Picture

June 28, 1969. Stonewall. Click for report from history.com

Supreme Court rules that under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always — that is, not categorically — justify a warrantless entry into a home. (From Syllubus of the Opinion).

Click for report from The Hill.

The information below is from Crisci Associates PA Capitol Digest.

The House will be in session June 21-25. The Senate will be in session June 21-26.

The House Judiciary Committee meets June 22 to consider the following bills: HB 1064 (firearms regulations concerning prison employees), HB 1534 (decedents estates), SB 411 (updating language in statutes for probation and parole) and any other business that may come before the committee.

Click for Pennsylvania Bulletin for June 19, 2021

LAST WEEK

The Senate unanimously confirmed Suzanne V. Estrella, Esq. to serve as Pennsylvania’s Victim Advocate for the Office of Victim Advocate. She had been serving in an acting capacity since March 29, 2021; and prior to that was Legal Director for the PA Coalition Against Rape. She will serve a six-year term.

The following bills passed the House and head to the Senate for consideration:

HB 975 — amending Title 18 (Crimes and Offenses) to create the offense of institutional sexual assault of a care-dependent person. (170-32) HB 975 now heads to the Senate for their consideration.

HB 1429 — amending Title 18 (Crimes and Offenses) to give the attorney general’s office concurrent jurisdiction to investigate individuals who use their position of trust to financially exploit older adults and care-dependent people. (202-0)

HB 1431 — amending Title 18 (Crimes and Offenses) to establish abuse of social media by employees who post pictures of care-dependent individuals without permission and categorize the crime as a misdemeanor. (198-4)

The following bills received second consideration in the Senate:

HB 156 — amending Title 42 (Judiciary and Judicial Procedure), Chapter 59 (Depositions and Witnesses), Subchapter D (Child Victims and Witnesses), Section 5985.1 (Admissibility of certain statements) to increase the age for admissible out-of-court statements made by a child victim or witness.


SB 305 — amending Titles 18 (Crimes and Offenses) and 23 (Domestic Relations), in offenses against the family, further providing for newborn protection; in child protective services, further providing for definitions and for taking child into protective custody; and, in newborn protection, further providing for definitions and for incubators for newborns, providing for health care providers at urgent care centers accepting newborns and further providing for reporting acceptance of newborns, for immunity and for duties of department.

The following bills received second consideration in the House:

HB 975 — amending Title 18 (Crimes and Offenses) to create the offense of institutional sexual assault of a care-dependent person.

HB 1429 — amending Title 18 (Crimes and Offenses) to give the attorney general’s office concurrent jurisdiction to investigate individuals who use their position of trust to financially exploit older adults and care-dependent people.

HB 1431 — amending Title 18 (Crimes and Offenses) to establish abuse of social media by employees who post pictures of care-dependent individuals without permission and categorize the crime as a misdemeanor.

SCOTUSblogPETITIONS OF THE WEEK BY MITCHELL JAGODINSKI

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, how appeals courts should apply the “harmless error” rule in criminal cases, and whether police officers’ use of force can violate the Fourth Amendment if the force, viewed in isolation, was reasonable but the necessity to use force was created by the officers’ own deliberate or reckless action.

Three months ago in Torres v. Madrid, the Supreme Court ruled that the application of physical force by police officers, with the intent to restrain, is a “seizure” for Fourth Amendment purposes, even if the suspect does not submit and is not subdued. City of Tahlequah, Oklahoma v. Bond presents another Fourth Amendment question about the use of police force. It asks the justices to clarify whether reasonable force can nonetheless violate the Fourth Amendment if officers deliberately or recklessly create the situation that leads to the need to use force.

In August of 2016, police responded to a domestic disturbance call and encountered Dominic Rollice, intoxicated and wielding a hammer, in his ex-wife’s garage. After the officers repeatedly ordered Rollice to drop the hammer, Rollice raised it over his head. The police responded by firing multiple shots, killing Rollice. The administrator of Rollice’s estate sued, alleging excessive force in violation of the Fourth Amendment. The district court granted summary judgment to the officers; however, the U.S. Court of Appeals for the 10th Circuit reversed, concluding that the 10th Circuit’s totality-of-the-circumstances analysis requires asking “whether the officers approached the situation in a manner they knew or should have known would result in escalation of the danger.” Such a finding, the court explained, could hold officers liable for shooting a suspect even if, viewed in isolation, the shooting was objectively reasonable under the Fourth Amendment.

Four years ago, in another Fourth Amendment reasonable-force case, the Supreme Court left open the question of whether an officer’s pre-seizure conduct should be used in evaluating the reasonableness of an officer’s actions. The circuits have remained split on the issue. In Tahlequah, the officers now ask the court to resolve the circuit conflict and overrule the 10th Circuit’s totality-of-the circumstances test. Alternatively, they ask the court to take the case and rule that they are entitled to qualified immunity.

Next, in Pon v. United States, Dr. David Pon, an ophthalmologist, was criminally charged with defrauding Medicare by falsely diagnosing patients and billing for treatments not rendered. During the trial, immediately prior to the close of evidence, the government introduced testimony that Pon fraudulently billed for 52 procedures on a single patient. The trial judge allowed Pon to offer an explanation for three of those procedures but prevented him from testifying about the other 49, even though Pon was prepared to tell the jury that all of the procedures were justified. Pon was later convicted and received a 10-year sentence.

On appeal, the U.S. Court of Appeals for the 11th Circuit upheld the conviction under the “harmless error” rule. The 11th Circuit assumed that the trial judge erred by refusing to allow Pon to respond to the government’s evidence, but the court concluded that the error was harmless in light of the “overwhelming evidence of guilt” that the government presented at trial. Pon argues that appellate courts applying the harmless-error rule must consider the defense’s evidence and the error’s potential effect on the jury’s view of the defense’s case, rather than merely focus on the amount of government evidence. Claiming that the circuit courts are “intractably divided” over the proper application of the harmless-error rule, his petition asks the justices to weigh in.

These and other petitions of the week are below:

City of Tahlequah, Oklahoma v. Bond
20-1668
Issues: (1) Whether use of force that is reasonable at the moment it is employed can nonetheless violate the Fourth Amendment if the officers recklessly or deliberately created the need to use force; and (2) whether it was clearly established for qualified immunity purposes that advancing toward an intoxicated individual wielding a deadly weapon inside a garage was a “reckless” act that would render unconstitutional any subsequent use of lethal force in response to a threat to officer safety.

Public Watchdogs v. Southern California Edison Company
20-1676
Issue: Whether the Hobbs Act deprives a federal district court of subject matter jurisdiction over state law and Price-Anderson Act claims asserted by a private actor against private party Nuclear Regulatory Commission licensees, on the ground such claims are “ancillary or incidental to” an NRC final order.

Simmons v. United States
20-1704
Issue: Whether a court can summarily dismiss a pro se habeas petition as untimely for failure to adequately allege a causal connection when petitioner explains how a government impediment “prevented” him from filing timely but does not allege with specificity how he discovered and attempted to remedy that impediment.

Pon v. United States
20-1709
Issue: Whether an appellate court reviewing a cold criminal trial record may determine that an error at trial was harmless by applying an “overwhelming evidence of guilt” test that considers only the potential effect of the error on the government’s case and not on the defense.

Posted in FeaturedCases in the Pipeline

Cases: City of Tahlequah, Oklahoma v. BondPublic Watchdogs v. Southern California Edison CompanySimmons v. United StatesPon v. United States

Recommended Citation: Mitchell Jagodinski, Evaluating police shootings and clarifying the harmless-error rule, SCOTUSblog (Jun. 19, 2021, 7:57 AM), https://www.scotusblog.com/2021/06/evaluating-police-shootings-and-clarifying-the-harmless-error-rule/

June 24, 1953. Jacqueline Bouvier and JFK announce engagement. Click for report from history.com.

  • In Greer v. United States, the justices held 9-0 that, in felon-in-possession cases, an error under Rehaif v. United States is not a basis for plain-error relief unless the defendant first makes a sufficient argument on appeal that he would have presented evidence at trial that he did not in fact know he was a felon.
  • In Terry v. United States, the justices held 9-0 that a sentence reduction under the First Step Act is available only if an offender’s prior conviction of a crack cocaine offense triggered a mandatory minimum sentence.

Above note from SCOTUSblog

The information below is from Crisci Associates PA Capitol Digest.

The House and Senate are in session June 15, 16, and 17.

The House Judiciary Committee meets June 15 to consider the following bills: HB 1587 (firearms), HB 1590 (sentencing), HR 111 (study on prosecution and sentencing under Uniform Firearms Act).

The Senate Judiciary Committee meets June 15 to consider the following bills: SB 708 (Crime Victims Act), HB  & HB 156 (admissibility of statements by children under age of 16).

LAST WEEK

VOTING RIGHTS PROTECTION ACT House State Government Chairman Seth Grove (R-York) announced he introduced HB 1300, the ‘Voting Rights Protection Act’.
Highlights of the 147-page bill, according to Chairman Grove, include:

  • Increase voter access: allow for early in-person voting beginning in 2025; correct non-fatal defects on mail-in ballots, such as unsigned or undated ballots, which must be completed by 8 p.m. of Election Day; give counties the option to use secure mail-in ballot drop boxes during specific times and at secure locations and increase access for voters with disabilities;
  • Address issues raised by local officials: allow mail-in ballots to be counted starting five days before the election; and move the last day to register to vote back to 30 days prior to an election; 
  • Guarantee trust: tighten security by expanding upon Pennsylvania’s current voter identification law, require regular election audits, improve election uniformity among the 67 counties, enhance certification processes for all machines used in elections, require signature verification using ballot scanning equipment for mail-in and absentee ballots, improve lists of registered voters and more. Specifically, registered voters would receive through their counties a scannable and durable voter registration card, much like the identification cards currently issued to voters for use when voting in person. There also would be a requirement for all county election board websites to use a .gov domain address. 

HB 1300 is scheduled to be considered by the House State Government Committee on June 15.

Last week, the House passed the following bills.  These bills head to the Senate for their consideration.

HB 1095 — amending Title 42 (Judiciary and Judicial Procedure) regarding third degree murder of an unborn child to provide for life imprisonment. (123-80).   

HB 118 — creating a free-standing act known as the Unborn Child Dignity Act. (118-83).

HB 979 — amending Titles 18 (Crimes and Offenses) and 53 (Municipalities Generally) to provide remedies for the unlawful municipal regulation of firearms and ammunition preempted by state law. (124-79). 

HB 987 — amending Title 75 (Vehicles) to create a process whereby individuals can restore their driving privileges for suspensions resulting from violations covered by Act 95 of 2018 and the violations were committed prior to Act 95. (203-0).  

HB 1024 — making omnibus amendments to the Medical Marijuana Act. (164-38).  

HB 940 — amending Titles 18 (Crimes and Offenses) and 53 (Municipalities Generally) to apply it to individuals who recklessly injure or kill a police animal. (145-56).

Last week, the Senate passed the following bill.  This bill heads to the House for their consideration.

SB 516 — amending § 9730 (relating to payment of court costs, restitution and fines) of Title 42 to provide that if a defendant fails to appear at a financial determination hearing, the issuing authority, senior judge or senior magisterial district judge may turn the delinquent account over to a private collection agency or the county’s collection enforcement unit. (34-15).

Click for Pennsylvania Bulletin for June 12, 2021

themarshallproject.org

THE BEST OF THE MARSHALL PROJECT

The Marshall Project, AL.com, IndyStar and Invisible Institute have been awarded a Pulitzer Prize in National Reporting for their year-long, far-reaching investigation into the life-altering injuries caused by police dog bites.

“We are humbled by this honor, and excited to see nonprofit journalism and criminal justice reporting recognized by the Pulitzer Prize Board,” said Susan Chira, The Marshall Project’s editor-in-chief. “This investigation shows the power of journalistic collaboration between local and national outlets, and cooperation between reporters, editors and designers to create a series with impact.”

A bad habit that’s proven hard to break. After the first wave of COVID-19 cases last spring, there were about 185,000 fewer men and women in jail as officials tried to curb the spread of the virus. Lower arrest rates and suspended court operations led to smaller jail populations. But since last summer, and especially now that courts are reopening, those populations are rising again, to the dismay of justice reform advocates and others who argue that many thousands behind bars don’t need to be there.

Doesn’t anyone around here want a new prison? Two decades ago, small towns in rural America were eager to recruit corrections officials or private operators to build new prisons nearby. But the economic benefits of such projects — like steady jobs for residents — never materialized or couldn’t be sustained. Take Tecumseh, Nebraska, for example, which heralded its new prison at the turn of the century, but now stands as a warning sign to officials in other communities, who’ve said no to new prison construction.

“They let people die in prison that shouldn’t have had to die.” Federal prison officials approved fewer compassionate release requests while the coronavirus surged through their facilities than they did the previous year, new records confirm. The Bureau of Prisons approved 55 such releases in 2019, out of 1,735 requests made by mostly elderly or ailing prisoners, but endorsed just 36 requests from March 2020 through April 2021 — despite receiving nearly 31,000 applications. More than 49,000 people in federal prisons have tested positive for COVID-19 and at least 256 have died, including 35 people whose compassionate release requests were left pending.

“The coach gets to pick the team.” A new eight-part docu-series about Larry Krasner, Philadelphia’s district attorney, sheds new light on how his reformist policies have met with resistance from virtually every corner of the city’s justice system. “Philly D.A.,” streaming in PBS Video App and PBS Passport until the end of the month, was filmed in a cinema verité style that captures the tension within a prosecutor’s office as old policies and prejudices are swept away.

“Who knew a flower could grow from the concrete?” It took a prison transfer from Delaware to Pennsylvania to turn Jy’Aire Smith-Pennick’s young life around. Behind bars in Delaware, he faced constant hostility from guards and few opportunities for personal growth. At the new prison, on the other hand, Smith-Pennick received drug and trauma treatment, trained as a peer and earned college credits. “Sending someone to a prison without quality programs, mental health resources and opportunities to build skills is like putting a child on punishment without giving them an explanation,” he writes.

THE BEST OF THE REST

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

Although it isn’t a story about criminal justice, it’s a master class in investigative journalism and a tribute to the power of journalism to reveal deep social and economic inequalities. This week, ProPublica released a staggering report thanks to an anonymous whistleblower who shared IRS documents revealing the myriad, legal mechanisms that the ultra-rich use to avoid taxes. Notable names include Warren Buffett, Jeff Bezos and Mark Zuckerberg. The authors said it best: the documents demolish “the cornerstone myth of the American tax system: that everyone pays their fair share and the richest Americans pay the most. The IRS records show that the wealthiest can — perfectly legally — pay income taxes that are only a tiny fraction of the hundreds of millions, if not billions, their fortunes grow each year.” — Andrew R. Calderon, data reporter

scotusblog.com

PETITIONS OF THE WEEK—By MITCHELL JAGODINSKI, SCOTUSblog, June 11, 2021

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, First Amendment challenges to the use of membership fees by a union or bar association to engage in political speech, as well as the definition of a state “tax” under the federal Tax Injunction Act.

Two petitions ask the justices to consider the First Amendment implications of professional fees that are used for political and ideological speech. In Baisley v. International Association of Machinists and Aerospace Workers, an airline employee challenges a fee levied by an airline workers’ union even though he is not a union member. Under the federal Railway Labor Act, the employee’s exclusive bargaining representative is the International Association of Machinists and Aerospace Workers. The employee alleges that the union contracted with his employer, United Airlines, to compel employees to pay fees in an amount equal to union dues. He further alleges that the fees are used to fund the union’s ideological and political activities unless a non-member affirmatively opts out of contributing to the union’s speech. The employee argues that this practice violates both the Railway Labor Act and the First Amendment. He relies on prior decisions holding that public-sector unions and employers must get an employee’s affirmative consent before extracting union dues or fees.

Next, in Crowe v. Oregon State Bar, the justices are asked to review the use of mandatory attorney dues by the Oregon State Bar to fund political and ideological speech. The challengers are Oregon attorneys who say the state bar uses the mandatory dues to fund legislative advocacy and other speech on matters of public importance. They ask the court to clarify prior case law on bar-association dues and declare that the Oregon policy is subject to the same “exacting” First Amendment scrutiny as laws involving subsidized speech by public-sector unions.

Lastly, Healthcare Distribution Alliance v. James asks the court to clarify the difference between state taxes and other types of assessments, such as penalties or fees. New York passed a law imposing an annual surcharge on opioid manufacturers and distributors. The state uses the money to pay for remedial programs related to opioid abuse. Pharmaceutical trade groups challenged the law, arguing that it is unconstitutional. The U.S. Court of Appeals for the 2nd Circuit held that the surcharge is a “tax” under the federal Tax Injunction Act, which prohibits federal courts from enjoining the collection of state taxes. The trade groups say the 2nd Circuit’s ruling conflicts with decisions by three other circuits about what constitutes a “tax” under the TIA.

These and other petitions of the week are below:

Healthcare Distribution Alliance v. James
20-1611
Issue: Whether the New York Opioid Stewardship Act’s surcharge is a “tax” within the meaning of the Tax Injunction Act, despite having features that other circuits repeatedly have held indicative of a punitive fee.

Leontaritis v. United States
20-1614
Issues: (1) Whether, if a jury is instructed to “determine” a fact by indicating a “unanimous finding beyond a reasonable doubt” and does so, the resulting verdict indicates a finding beyond a reasonable doubt, as opposed to a mere failure to find; and (2) whether, if a jury verdict finds a fact beyond a reasonable doubt, a district court’s sentencing decision must accept the jury’s determination or instead may base the sentence on its own independent finding that contradicts the jury’s.

Baisley v. International Association of Machinists and Aerospace Workers
20-1643
Issue: Whether opt-out procedures for collecting union fees for ideological and political activities violate the First Amendment or the Railway Labor Act.

Nettles v. Midland Funding, LLC
20-1673
Issues: (1) Whether, under Spokeo, it is sufficient for standing simply to allege a violation of the procedural rights created by the Fair Debt Collection Practices Act, as six circuits have held, or must a plaintiff also always allege an additional injury beyond such a violation, as five circuits (including the 7th in this case) have held; and (2) whether some additional injury is required for standing under the Act, whether it is sufficient to allege mental distress or lost time dealing with a violation of the Act, as the 4th, 11th, and D.C. Circuits have held, or whether something more than mental distress or lost time is required, as the 7th (in this case) and 9th Circuits have held.

Crowe v. Oregon State Bar
20-1678
Issue: Whether the statute that compels attorneys to subsidize Oregon State Bar’s political and ideological speech is subject to “exacting” scrutiny.

Posted in FeaturedCases in the Pipeline

Cases: Healthcare Distribution Alliance v. JamesLeontaritis v. United StatesBaisley v. International Association of Machinists and Aerospace WorkersNettles v. Midland Funding, LLCCrowe v. Oregon State Bar

Recommended Citation: Mitchell Jagodinski, Union fees, bar association dues, and the funding of political speech, SCOTUSblog (Jun. 11, 2021, 4:27 PM), https://www.scotusblog.com/2021/06/union-fees-bar-association-dues-and-the-funding-of-political-speech/

June 15, 1215. King John agrees to the Magna Carta. Click for article from British Library.

On Thursday, the court issued its decision in Borden v. United States. The justices by a vote of 5-4 reversed a decision by the 6th Circuit, which held that an offense with a mental state of recklessness may qualify as a “violent felony” under the Armed Career Criminal Act. (From SCOTUSblog).

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