by Gabriel Pittman

To All Pennsylvania Pre-Miller JLWOPer's: 

Now that the seminal case of Songster v. Beard, C A. No. 04-5916, 2016 U.S. Dist. LEXIS 108937 (U.S.D.C. E D.Pa. 2016) has been resolved, clearing the way for all pre-Miller JLWOPer's to be resentenced to flat sentences, it is imperative that you and whatever lawyer is representing your best interest understand that the only remedy for your unconstitutional sentence and current unconstitutional incarceration is IMMEDIATE DISCHARGE. The only tribunal that has any authority to order your immediate release is the Federal court. You need to file a writ of mandamus under the All Writs Act at 28 U.S.C. 1651(a), moving the Federal court to deem your state remedies exhausted and unavailable, and moving the Federal court to exercise federal habeas jurisdiction to order your unconditional release from unconstitutional incarceration for the following reasons.

First, extraordinary circumstances exist which will justify the Federal court to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law” under the All Writs Act, Section 1651(a); Clinton v. Goldsmith, 526 U.S. 529, 534, 19 S.Ct. 1538 (1999); In re Worthy, 481 F Appx. 46, 47 (3d Cir 2012), including writs of mandamus, although Federal courts have no general power to issue such writs. The All Writs Act does not enlarge a Federal court's jurisdiction and cases such as FTC v. Dean Foods Co., 384 U.S. 597, 603, 86 S.Ct. 1738 (1996), make clear that the Federal Court's jurisdiction in aid of which the writ of mandamus is sought need not yet have attached or been perfected; it can be potential, as when the exhaustion of state remedies, including state postconviction remedies, is a prerequisite to seeking federal habeas corpus. In re Campbell, 264 F.3d 730, 731 (7th Cir. 2001). Mandamus against a state court might be warranted in order to prevent that court from blocking the federal courts from exercising their habeas jurisdiction. Even then, the proper remedy would not be to order the state court to act; it would to be to deem the petitioner's state remedies exhausted, thus clearing away the obstacle to a Federal court exercising jurisdiction. Perhaps, in some case [such as Songster's “Pennsylvania Dilemma”], the Federal court habeas corpus action could not proceed without some action by a state court, and maybe in such a case the general rule that a Federal court cannot use its power to control or interfer with state court litigation would yield to the urgencies of the moment. In re Campbell, supra.

In light of the Commonwealth's strategical tactics of delay which has deprived you of justice since Miller was first announced, and will only continue since it has been acknowledged it will “take a few years for the courts [now minus the parole board] to work through the Pennsylvania cases,” especially for the 300 JLWOPer's from Philadelphia County with one supervising judge and five lawyers from the Juvenile Lifer Project representing 225 of those 300 juveniles, the fierce urgency of now and of this Songster-moment requires the Federal court to issue a writ of mandamus and prove you with over-due relief.

Second, the Tenth Amendment of the U.S. Constitution states, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people.” Under the spirit and letter of this sacred, inviolable grant of “states' rights”, the U.S. Supreme Court has repeatedly stated that there is “no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” U.S. v. Morrison, 529 U.S. 598, 618, 120 S.Ct. 1740 (2000); see e.g. Cohens v. Virginia, 6 Wheat 264, 426 (1821)(Marshall, C.J.) (stating that Congress “has no general right to punish murder committed within any states,” and that it is “clear… that Congress cannot punish felonies generally.”).

The High Court notes that the Federal Government has expanded dramatically over the past two centuries, but it still must show that a constitutional grant of power authorizes each of its actions. The same does not apply to the States, because the Constitution is not the source of their power. The Constitution may restrict state governments -- as it does, for example, by forbidding them to deny any person equal protection of the law. But where such prohibitions do not apply, state governments do not need constitutional authority to act. The States thus can and do perform many of the vital functions of modern government -- punishing street crime, running public schools, and zoning property for development, to name a few -- even though the Constitution's text does not authorize any government to do so. The High Court's cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power” National Federation of Independent Businesses v. Sebelius, 183, L.Ed.2d 450, 465 (2012).

JLWOPer's need to understand that the Commonwealth has abdicated (given up) its sovereign state police power to remedy your unconstitutional sentences or to even implement any new sentencing scheme to resentence you under. In 1994, Congress enacted the Violent Offender and Truth In Sentencing (VOITIS) Incentive Grant Program, 42 U.S.C. Section 13701 et seq. VOITIS, a “federal regulatory program,” gifted the States with an initial grant of approximately ten billion dollars to build new prisons and expand old ones as long as the States increased sentences for violent state crimes, locked up more state citizens for violent state crimes and ensured that policies were created to require that state prisoners actually served a substantial amount of those increased state sentences in prison. It is beyond dispute and uncontroverted that Pennsylvania qualified for and received VOITIS funds under 42 U.S.C. Section 13704 See Commonwealth v. Baldwin, 760 A.2d 883 (Pa. Super. 2000).

Clearly established Federal law, as determined by the Supreme Court of the United States, makes clear that the voluntary and knowing quid pro quo (pay-for-play) VOITIS agreement between the Federal Government and the Commonwealth and its officers is in direct violation of the Tenth Amendment's mandate that States retain the sole responsibility to administer their own criminal justice systems. “By assigning the Federal Government power over certain enumerated objects only, the Constitution leaves to the several States a residuary and inviolable sovereignty over all other objects. The purpose of this design is to preserve the balance of power between the States and the Federal Government that protects our fundamental liberties. It is the States' duty to act as the immediate and visible guardian of those liberties because federal powers extend no further than those enumerated in the Constitution. The Constitution gives States no more power to decline this responsibility than it gives them to infringe upon those liberties in the first instance. Absent congressional action that is in accordance with, or necessary and proper to, an enumerated power [under Article I, Section 8 of the U.S. Constitution], the duty to protect citizens from violent crime,... belongs solely to the states.” U.S. v. Comstock, 130 S.Ct. 1949, 1983 (2010) (Thomas, J. dissenting opinion). Indeed, one need look no further than the conclusion of the Songster decision for affirmance of this principle of federalism. “It is not our role to interpret Pennsylvania law in these circumstances. We do not attempt to usurp the authority of the state court to impose the sentence it deems appropriate so long as it adheres to the constitutionally mandated requirements as set forth in Miller and Montgomery.” This is acknowledgment of the Tenth Amendment, and the power of the Supremacy Clause, Article VI, Clause 2, when the states don't provide constitutionally required justice.

Pursuant to clearly established federal law under South Dakota v. Doe, 483 U. S. 203, 211, 107 S.Ct. 2793 (1987), the Supreme Court notes its “decisions have recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns to compulsion.'” (citing and quoting Steward Machine v. Davis, 30l U.S. 548, 598 (1937)). The hundreds of millions of federal VOITIS funds gifted to the Commonwealth to build prisons, conditioned upon the Commonwealth increasing punishments as mandated by Congress, compelled the Commonwealth to abide by the mandates of VOITIS, lest the Commonwealth's government agents be accused of being “soft-on-crime. 

Pursuant to New York v. U.S., 505 U.S. 144, 188, 112 S.Ct. 2408 (1992) and Printz v. U.S., 521 U.S. 898, 935, 117 S.Ct. 2365 (1997), “the Federal Government may not compel the States to enact or administer a federal regulatory program,” New York, supra, nor “circumvent this prohibition by conscripting the States' officers directly,” Printz, supra, or ”issue directives requiring States to address particular problems, nor command States' officers...to administer or enforce a federal regulatory program...[because]...such commands are fundamentally incompatible with our constitutional system of dual sovereignty,” Id..

VOITIS's commands for the Commonwealth and its officers of the state's executive, legislative and judicial branches “address the particular problem” of violent state crimes by increasing state sentences, and the Commonwealth's obedience to those commands, have deprived the Commonwealth of all authority to resentence any pre-Miller JLWOPer's, and the only recourse is for the Federal courts to issue a writ of mandamus, deems JLWOPer's state remedies exhausted and unavailable, assume federal habeas jurisdiction over any pending state resentencing/postconviction litigation, and order your immediate and unconditional release.

Finally, even if the Commonwealth somehow overcomes this conundrum and magically enacts a baseline flat-sentencing range (let's say a flat sentence anywhere between 15 years up to a flat sentence of 40 years) -- under Alleyne, any facts that increase (i.e., aggravate) the sentencing floor above l5 years must be found by a jury beyond a reasonable doubt during a jury resentencing proceeding. How many more years will it take for the Commonwealth to legislate such a procedure? This is why it is imperative that juvenile LWOPer's understand that your only effective and adequate venue for justice is in the Federal court system since the Commonwealth has knowingly and voluntarily relinquished its Tenth Amendment sovereign state authority over all matters in a criminal context to the jurisdiction of the Federal Government.

And one last “final” finally to all adult LWOper's in Pennsylvania. Regardless of what any court, judge, lawyer, jail-house lawyer or your own closed and “boxed-in” defeatist and pessimistic thoughts may tell you, Miller's substantive holding that mandatory life without parole sentences are unconstitutional means just that...mandatory life without parole sentences are unconstitutional in the adult-context, as well, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Due Process and Equal Protection of the Law mandate that, like juveniles, adults should not be exposed to a sentencing procedure “[r]outinely fixing the maximum of each sentence at life [which] contradicts a sense of proportionality and smacks of categorical uniformity. A sentencing practice that results in every [adult's] sentence with a maximum term of life, regardless of the minimum term, does not reflect individualized sentencing.” Songster, 2016 U.S. Dist. LEXIS 108937, slip opinion at, pg. 3 (*7). “After the Supreme Court declared the sentencing scheme providing a life without parole sentence unconstitutional, the Legislature was required to enact a penalty statute that satisfied Miller.” Id., at pg 3, (*8-9) (emphasis added). ALWOPer's, please do not “drink the Kool-Aid” and wait on any “Miller/Montgomery adult-type sentencing fix” now being considered by the PA General Assembly. VOITIS deprives them of any power to establish a penalty, or to continue to enforce LWOP sentences. Don't take a fellow-prisoner's word for it, do the research yourself. Say what you want to about Supreme Court Justice Clarence Thomas -- one thing you can't say about him is that he ain't try to tell you in Welch v. U.S., 136 S.Ct. 1257, 1274 (2016), that, “[w]hen deciding whether rules are substantive, our cases have homed in on the rule that would apply not just to the specific statute at hand, but in similar, future circumstances. Thus, just this Term, the Court defined the rule announced in Miller v. Alabama, as: The Eighth Amendment 'prohibits...mandatory life without parole for juvenile offenders' - not that Alabama's juvenile sentencing statute flouts the Eighth Amendment. Montgomery, supra, 136 S. Ct. 718, 732.” In other words, Justice Thomas is saying that “similar, future circumstances” means the rule announced in Miller is similarly defined as: The Fourteenth Amendment prohibits...mandatory life without parole for adult offenders. Because of the Commonwealth's acceptance of VOITIS funds and abdication of administration of its own criminal justice system, ALWOPer's have no state remedies to exhaust. File a PCRA action in the State court raising Miller, and simultaneously (or shortly thereafter) file a federal habeas action and writ of mandamus in the Federal district court moving it to deem your state remedies exhausted and unavailable due to VOITIS thereby presenting a circumstance justifying the federal court to assume jurisdiction over your Miller (and any other federal constitutional) claim(s) and ordering your immediate and unconditional release. Indeed, this option applies to anyone currently incarcerated for any type of crime in an jail or prison in Pennsylvania. And I don't mean to sound brash, but to ALWOPer's especially, you're doing LWOP. All the Federal court can say is yes or no. WHAT THE HELL DO YOU HAVE TO LOSE?!?! If this unconvential legal theory can be TRUMP-ed, I invite anyone to refute it so we can all figure a way out of this entrapment of VOITIS.


Respectfully Submitted

Gabriel Pittman


PO Box 1000

Houtzdale, PA 16698