Federal Legislation – Championing Public Safety Amid Changes in Washington

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Cameron O’Brien
Legislative Assistant
Steptoe & Johnson LLP

PORAC Advocates for Law Enforcement in D.C.

In late March, more than a dozen PORAC and PORAN members traveled to Washington, D.C., to meet with lawmakers to discuss legislative priorities in the 115th Congress. In total, the group met with more than 30 lawmakers and their staffs, including U.S. Senators Feinstein (D-Calif.), Harris (D-Calif.), Heller (R-Nev.) and Cortez Masto (D-Nev.), as well as House Majority Leader Kevin McCarthy (R-Calif.) and House Minority Leader Nancy Pelosi (D-Calif.). PORAC also met with staff from the House Education and Workforce Committee and the Department of Education’s Office of Safe and Healthy Students.

PORAC expressed its strong support for the preservation of a number of grant programs administered by the Department of Justice (DOJ), including Community Oriented Policing Services grants, Byrne Justice Assistance Grants and High Intensity Drug Trafficking Area grants. PORAC was encouraged by the response from lawmakers, who recognized the value of these programs and expressed commitment to their continued funding. The group also discussed the urgent need for 9-1-1 emergency system reform, explaining how the existing infrastructure has not kept pace with modern technologies and is compromising public safety. Additionally, PORAC outlined its concerns with a House-passed bill that would update the Electronic Communications Privacy Act and suggested changes that the Senate should incorporate when it considers the issue.

It was clear throughout the two days of meetings that lawmakers have come to value PORAC’s input on policy and are very interested in learning about its position on a range of issues.

Trump Takes Action to Combat Opioid Abuse

On March 29, President Trump signed an executive order establishing the President’s Commission on Combating Drug Addiction and the Opioid Crisis. The mission of the initiative is to “study the scope and effectiveness of the federal response to drug addiction and the opioid crisis” and make recommendations for improvement. To lead the commission, President Trump chose New Jersey Governor Chris Christie, who has been working to address the scourge of opioid abuse and heroin use in his state. Attorney General Jeff Sessions will also have a seat on the panel.

The commission is designed to identify and describe existing federal funding used to combat drug addiction and the opioid crisis; assess the availability and accessibility of drug addiction treatment services and overdose reversal throughout the country, and identify underserved areas; report on best practices for addiction prevention, including health-care provider education, evaluation of prescribing practices and effectiveness of state prescription drug monitoring programs; and make recommendations to the president for improving the federal response to drug addiction and the opioid crisis. After 90 days, the commission must submit to President Trump an interim report with its preliminary findings, and a final report must be submitted by October 1.

The commission will receive administrative support from the Office of National Drug Control Policy (ONDCP), which will soon be under new leadership. On April 11, President Trump announced his intent to nominate Representative Tom Marino (R-Penn.) to lead the ONDCP as the next so-called “drug czar.” The third-term congressman is a former federal prosecutor and was one of President Trump’s earliest supporters in Congress during the presidential campaign. Last Congress, Congressman Marino introduced the Transnational Drug Trafficking Act (H.R. 3380) to curb drug trafficking across borders, the Senate version of which (S. 1612, introduced by Senator Dianne Feinstein) was signed into law. He is also opposed to loosening restrictions on marijuana and has advocated for mandatory inpatient substance abuse programs for nonviolent drug offenders.

AG Sessions Signals Shift in Enforcement Priorities

In public remarks and in departmental memos, Attorney General Jeff Sessions has indicated that under his leadership the DOJ will prioritize reducing violent crime, with a particular emphasis on dismantling drug cartels and federally prosecuting firearm offenses.

“We’re making sure the federal government focuses our resources and efforts on this surge in violent crime,” Sessions recently told law enforcement personnel in Virginia, highlighting the recent formation of the DOJ Task Force on Crime Reduction and Public Safety to evaluate and improve existing federal efforts. Sessions noted that reducing violent crime depends on confronting the heroin and opioid crisis — and that combating the scourge of illicit drug use depends on securing the nation’s borders and enforcing immigration law. “Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction and misery,” Sessions said. “Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product.”

Sessions’ stance on enforcing immigration law is much more stringent than his predecessor’s. This is demonstrated not only by his comments above but also by his announcement in mid-April that sanctuary cities (cities that do not permit municipal funds or resources to be used for, or otherwise prohibit local law enforcement’s participation in, the enforcement of federal immigration law) would be ineligible to receive federal funding from the DOJ if they do not change their policies. “Such policies cannot continue. They make our nation less safe by putting dangerous criminals back on the street,” Sessions said, adding that “the DOJ will require jurisdictions seeking or applying for DOJ grants to certify compliance with 1373 [laws requiring local agencies to cooperate with federal immigration enforcement efforts] as a condition of receiving those awards.” It is unclear how the DOJ plans to implement this policy and what exactly the impact would be on the affected jurisdictions.

Supreme Court Update

In recent weeks, the Supreme Court rendered decisions in several cases addressing criminal justice issues, two of which are outlined below.

In a 5–3 decision in Moore v. Texas, the Court held that a state court applied the wrong standards to conclude that a Texas death-row inmate was not intellectually disabled and therefore eligible for execution. Specifically, the Court considered whether the use of outdated medical standards to determine if a person is intellectually disabled and ineligible for execution qualifies as cruel and unusual punishment under the Eighth Amendment. In this case, Moore was sentenced to death in 1980, but he argued that he was exempt from execution because he was intellectually disabled. The Texas Court of Criminal Appeals rejected Moore’s challenge, relying on a set of 1992 standards for evaluating intellectual disability. The Court concluded that the lower court’s reasoning was flawed in many respects, including that it 1) focused too heavily on Moore’s IQ score, 2) did not consider current clinical standards and 3) relied on factors founded in neither medicine nor law. Chief Justice Roberts — along with Justices Samuel Alito and Clarence Thomas — dissented.

In a 6–2 decision in Manuel v. City of Joilet, the Court analyzed whether Fourth Amendment protections applied to a post-arrest seven-week detention, which allegedly was imposed without probable cause and based on false evidence. Justice Kagan, writing for five other members of the court, concluded that an unlawful “pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case.” This conclusion — that the Fourth Amendment governs a claim of unlawful pretrial detention — was the same conclusion reached by 10 other federal appellate courts. Justices Samuel Alito and Clarence Thomas both agreed with the narrow holding of the case — i.e., that “the protection provided by the Fourth Amendment continues to apply ‘after the start of the legal process.’” They disagreed, however, with the suggestion that “new Fourth Amendment claims continue to accrue as long as pretrial detention lasts.”