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Malik Neal, Christina Matthias, Broken Promises: Larry Krasner and the Continuation of Pretrial Punishment in Philadelphia, 16 Stan. J. Civ. Rights & Civ. Liberties 543 (2021), Malik Neal and Christina Matthias discuss the discretion that Philadelphia prosecutor Larry Krasner has that would allow him, without legislative intervention, to end his office’s practice of requesting cash bail. The article pushed back on Krasner’s assertion that he has done all he can do, and that he “…can’t change the law in our Trump-loving state.” The article goes on to explain that current Pennsylvania law governing bail actually favors the release, rather than the detention of an individual pending a determination of guilt or innocence. Additionally, the presumption of pre-trial release is enshrined in Article I, Section 14 of the Pennsylvania Constitution, and neither the judiciary nor the legislature prohibit prosecutorial discretion in eliminating cash bail requests.

Thomas N. Farrell, Prosecutors Who Don’t Provide Full Juvenile or Criminal Records Could Stumble into Double Jeopardy, 23 Lawyers J. 4 (2021), Thomas N. Farrell discusses the implications of failing to provide full disclosure of criminal records within the Commonwealth’s sole possession. The Pennsylvania Supreme Court’s decision in Commonwealth v. Johnson, 2020) expanded the double jeopardy provision to include reckless prosecutorial behavior. While the reckless standard has not been applied to case a where the Commonwealth hides juvenile or criminal records of witnesses, Mr. Farrell advocates for full disclosure of these records and for allowing the judge to decide on admissibility at a later date, rather than risk double jeopardy.

Jud Mathews, Stephen F. Ross, Proportionality Review in Pennsylvania Courts, 92 Pa. B.A. Q. 109 (2021). Jud Mathews and Stephen F. Ross argue that Pennsylvania stands to gain from expanding and regularizing the use of proportionality review, rather than the tiered approach used at the federal level when reviewing constitutional rights claims. The test asks whether a challenged measure is: (1) aimed at legitimate objectives; (2) suitable for achieving those objectives; (3) no more intrusive than necessary (a “least restrictive means” or “minimal impairment” test); and (4) proportionate to the ends the government seeks to achieve. This is a test that would strike down more legislation than the “rational basis” test which finds statutes are constitutional if rationally related to a legitimate government interest. The authors posit that state and local governments are better positioned to apply the proportionality test because they are more attuned to the economic and social needs of their locality. Pennsylvania is uniquely situated for this type of review because Pennsylvania Supreme Court Justices are elected for ten-year terms, and the constitution is less burdensome to amend than the Federal Constitution, making it less likely justices will stand in the way of popular legislation without good reason

Clifford B. Levine, Jacob S. Finkel, Shall Your Vote be Counted?: Evaluating Whether Election Code Provisions are Directory or Mandatory, 82 University of Pittsburgh Law Review 525 (2021), Clifford Levine and Jacob Finkel develop a test balancing the constitutional right to vote with the state interest in ensuring an efficient and orderly election process. The three-part test first calls for examining the text of the statute to ascertain the context of the instruction and whether any ambiguity exists in its application. Second, determine the subject of the directive and whether that subject (e.g., a voter) was adequately notified of the requirement. Third, evaluate the state interest involved and whether that interest was otherwise satisfied. Levine and Finkel advocate for liberal construction of the Election Code by favoring enfranchising voters to ensure fundamental rights are not violated. They specifically discuss whether courts should interpret “shall” as a mandatory requirement under all circumstances and call for a three-part test to evaluate Mandatory vs. Directory application. The three-part test includes determining the subject of the directive. Courts would consider at whom the operative language is directed, recognizing that voters may generally stand in a different place than candidates or other election officials. There is no constitutional right to be a candidate or election official, but there is a right to vote, and as such the court should interpret the Election Code as a directory when placing restrictions on voters.

Rhiannon Avvisato, Does the Public have a Right to Know Names of Individuals Affiliated with Abortion Facilities?: Pennsylvania’s Application of its Right-to-Know Law in Crocco v. Pennsylvania Department of Health, 30 Widener Commonwealth L. Rev. 471 (2021), Rhiannon Avvisato reviews the Pennsylvania Supreme Court’s ruling that individuals serving abortion clinics, as healthcare practitioners or leaders of abortion facilities, have a right to privacy. The court found that even if the right to privacy is not protected by Article I, Section 8 of the Pennsylvania Constitution, the right is protected by the personal security exemption of the Right-to-Know Law. The court found the release of such information did little for the public, but if released, would cause real harm to the individual whose information was released. 

Julia M. Siracuse, The Future of Our Fingerprints: The Importance of Instituting Biometric Data Protections in Pennsylvania, 59 Duq. L. Rev. 303 (2021). Julia Siracuse discusses the importance of enacting biometric data protection legislation. Doing so would be consistent with the Pennsylvania Supreme Court’s interpretation of Article I Section 1 and Article I Section 8 of the constitution as being tied to the implicit right to privacy and freedom from the disclosure of personal information.

Julia E. Sappey, Greening the Trust: Enforcing Pennsylvania’s Environmental Rights and Duties to Combat Climate Change, 62 Wm. & Mary L. Rev. 1691 (2021), Julia Sappey discusses Pennsylvania’s constitutional duty to comply with Article I Section 27 of the Commonwealth’s constitution. The article urges Pennsylvania courts to take a more expansive role in interpreting the Environment Rights Amendment and sets forth several solutions to the climate crisis faced by the Commonwealth.

Emily Peffer, A Tale of Two Bills: a Four-Factor Consideration of Pennsylvania’s Legislative Response to Judicial Legitimacy Concerns, 59 Duq. L. Rev. 195 (2021), Emily Peffer reviews Pennsylvania’s present method of selecting judges, as well as two proposed amendments to change how appellant judges are selected. The first proposed amendment, House Bill 111, would establish a merit-based appointment system. The second proposed amendment, House Bill 196, would have judges elected by demographically balanced judicial districts.

Jacob Elkin, Environmental Justice and Pennsylvania’s Environmental Rights Amendment: Applying the Duty of Impartiality to Discriminatory Siting, Columbia Journal of Race and Law (Jan. 2021), Jacob Elkin argues that Pennsylvania’s Environmental Rights Amendment provides an avenue for disparate impact environmental justice litigation at the state level. In Robinson Township v. Commonwealth, the Pennsylvania Supreme Court interpreted the state’s Environmental Rights Amendment as imposing significant public trust obligations on the state legislature and other governmental actors. In light of this decision, Elkin argues that Pennsylvania agencies must consider the cumulative impact of previous environmental decision-making when making siting and permitting decisions and cease siting and permitting environmental hazards in communities that already bear a disproportionate burden. He further argues that the duty of impartiality imposed by the Pennsylvania Supreme Court should prohibit state actors from continuing to site environmental hazards in communities that already bear disproportionate environmental burdens.

Honorable P. Kevin Brobson, Of Free and Equal Elections and Fair Districts – How the Pennsylvania Supreme Court Slayed (Or Hobbled?) the Partisan Gerrymander, 30 Widener Commonwealth L. Rev. 53, the Honorable Judge P. Kevin Brobson writes that the Supreme Court of Pennsylvania’s decision in League of Women Voters of Pennsylvania v. Commonwealth recognizes an independent cause of action for partisan gerrymandering challenges under the Free and Equal Elections Clause of the Pennsylvania Constitution. Judge Brobson argues, however, that it is unclear from the court’s decision whether its application of the Free and Equal Elections Clause is meant to eliminate partisan consideration entirely from the creation of congressional districts or to reduce partisan considerations to a constitutionally permissible level. Judge Brobson writes that unless there are legislative reforms to the way Pennsylvania crafts its congressional districts in the interim, the initial task of preparing a 2021 congressional redistricting plan after the 2020 Census will fall on the General Assembly and the Governor. 

Whitney A. Petrie, Litigating Education: The Quest to End Inequitable Funding in Pennsylvania, Drexel Law Review (2021), Whitney A. Petrie writes that Pennsylvania school districts have been inequitably funded for decades and, because of this, children’s ZIP codes dictate the quality of education they receive. Petrie writes that, thus far, educational reform efforts that have focused on moving away from education funded by property taxes have been motivated by a desire to reduce the burden felt by property owners to fund education, and less with the objective of improving educational quality. However, what is actually needed is an intentional effort to improve equality of access to educational opportunities. Petrie writes that the Pennsylvania General Assembly should take actions toward this end, but it remains unclear whether the Pennsylvania Supreme Court is willing or able to direct the legislature to make changes to the way education is funded.