Previous posts have discussed the substantial uncertainty around the meaning of “corruptly,” a mens rea term used across a variety of federal criminal statutes in the areas of public corruption, financial regulation, and obstruction of justice. A recent Supreme Court case, Snyder v. United States, 144 S. Ct. 1047 (2024), adds to the uncertainty. Even more than before, parties in corruption cases should plan for potential arguments that the “corruptly” mens rea term is unconstitutionally vague or susceptible to narrowing constructions.

A recent blog post advocating using Artificial Intelligence (“AI”) to “automate” criminal appeals instead raises the concern that common flaws in contemporary judicial decision-making will only get worse if we cede legal writing to AI Large Language Models. The post analyzes an appellate decision interpreting the federal sentencing guidelines in which all three (human) judges reach the startling conclusion that their decision is incorrect under the guidelines themselves. That conclusion is deeply flawed—the court was not bound to reach the wrong result—but at least the judges understood the result was wrong, which leaves an ember of hope that another court will get it right. AI, by contrast, likely would magnify the errors that led a succession of human judges astray.

In September, Mental Health America held its annual conference in Washington, DC, bringing together thousands of providers, government officials, media representatives, advocates, and members of the community to address mental health needs, care, equity, and social influences. Key topics included community responses to crises, local solutions for health equity, emerging trends in mental health treatment, substance use, and youth-driven solutions. 

Zuckerman Spaeder partner D. Brian Hufford participated in the Affiliate Day keynote, “Making Health Coverage Work for Us: Encouraging News on the Road to Full Access to Care,” alongside fellow affiliates Lisa M. Gomez, Assistant Secretary for Employee Benefits Security of the U.S. Department of Labor (“DOL”); Joe Feldman, Founder and President of Cover My Mental Health; Nora Fleming, Associate Director and Manager of the Mental Health Parity Newsroom Collaborative at The Carter Center; and Tim Clement, Vice President of Federal Government Affairs of Mental Health America.

The NAADAC 2024 Conference & Hill Day is an annual conference that brings together thousands of addiction counselors, educators, and other addiction-focused health care professionals from across the country. The conference aims to provide attendees with the tools needed to deliver the most current, inclusive, and well-rounded care to their clients, help pave the way toward a healthier, client-centered future, and advocate for the future of the addiction profession.

On October 20, 2024, Zuckerman Spaeder LLP partners D. Brian Hufford and Caroline Reynolds, along with David Lloyd, Chief Policy Officer at the mental health advocacy organization Inseparable, presented at the conference and discussed recent legal and regulatory developments, and how providers can protect their legal rights and those of their patients in the ongoing battle for behavioral health insurance coverage. 

On Friday, October 18, I delivered a check to the videographer for the Maryland Federal Public Defenders’ 50th Anniversary Event held in the ceremonial courtroom at the U.S. District Court for the District of Maryland. I figured I’d stay for the beginning of the program and slip out when I got the gist of the ceremony, which I assumed would follow the typical formula. I confess to some cynicism about these events because the usual script involves a lot of thanks to all those who helped the speaker but also high praise for those who are in a position to help the speaker in the future.

On October 1, 2024, Zuckerman Spaeder partner Sara Alpert Lawson moderated a panel for the American Bar Association (“ABA”) titled “Prosecutorial Independence and the Rule of Law.” The panel consisted of three prosecutorial heavyweights: Fmr. Assistant Attorney General Leslie Caldwell, Fmr. Senator Doug Jones of Alabama, and Fmr. Deputy Attorney General of the United States Larry Thompson. It was an interesting discussion covering (1) prosecutorial independence and discretion and the rule of law; (2) the mission of the Department of Justice (“DOJ” or the “Department”); and (3) the impact on the rule of law from the Heritage Foundation’s Project 2025 proposed Mandate, as well as its impact if the proposed recommended restructuring of the DOJ and Federal Bureau of Investigation was carried out.

A 1971 Supreme Court Decision of Doubtful Vitality Thwarts § 1983 Liability for Mistaken-Identity Arrests and Stifles Development of Clear Constitutional Rules 

Kafka would love qualified immunity.¹ Not only does current qualified immunity doctrine allow law enforcement officers to arrest and hold the wrong person—sometimes for an extended period—without liability, it also inhibits the development of constitutional doctrines that would prevent erroneous arrests and detentions in the future, because courts can dismiss civil damages claims on the basis of qualified immunity without even having to consider whether, for purposes of those future cases, such an arrest or detention is constitutionally permissible. Recent appellate decisions suggest that modern computer systems have made the problem of mistaken arrests and detentions based on records sent across state lines worse, even though it should now be much easier to quickly check photographs or fingerprints in another jurisdiction that could confirm or definitively refute the arrestee’s identity.

In a new article, Zuckerman Spaeder lawyers Bryan Thomson and Marty Himeles have analyzed the effects of the Supreme Court’s 2013 decision ending the “preclearance” requirement for new voting standards, practices, and procedures in states with a history of discriminatory voting practices. The full article, titled Ten Years after Shelby County: The Effect of Ending Preclearance on Voting Rights, is available here.

Together, the Supreme Court’s decisions in Loper Bright and Corner Post open a path to attack federal regulations issued by agencies (and upheld by courts) many years ago. As Justice Jackson put it in her Corner Post dissent: “Any established government regulation about any issue—say, workplace safety, toxic waste, or consumer protection—can now be attacked by any new regulated entity within six years of the entity’s formation. A brand new entity could pop up and challenge a regulation that is decades old; perhaps even one that is as old as the APA itself. No matter how entrenched, heavily relied upon, or central to the functioning of our society a rule is, the majority has announced open season.”¹

For too long, judges have been permitted at sentencing to consider anything they deem “relevant,” including allegations that were considered and rejected by a jury. So-called “acquitted conduct sentencing” clearly offends commonsense notions of fairness. And, as discussed in a prior post by Zuckerman Spaeder attorneys David Reiser and Bryan Reines, the practice may also violate the Double Jeopardy clause.