Legislative Frenzy Before the Holidays

Of Counsel
Steptoe & Johnson LLP

Policymakers in Washington, D.C., watched in horror as the attack unfolded in San Bernardino. In the aftermath, while the attack prompted debates over how best to address gun safety, immigration and terrorism, there was one point of agreement: The law enforcement and first responders involved put themselves in harm’s way, acted decisively and ultimately saved lives.

This tragedy showcased the impressive tactical response of the San Bernardino Police Department, the San Bernardino County Sheriff’s Department and others to address an active-shooter situation. By implementing proper active-shooter tactics and deploying them in conjunction with military-grade equipment transferred to local police under a federal surplus military weapons program, local law enforcement swiftly and safely contained a situation that could have ended up being even more tragic than it was.

Such professionalism did not go unnoticed. Senator Barbara Boxer (D-Calif.) took to the Senate floor to praise “all of the brave law enforcement officers who rushed to the scene” and who worked “to catch these despicable killers.” She was not alone. Other members of Congress, including Representatives Pete Aguilar (D-Calif., Dist. 31), Janice Hahn (D-Calif., Dist. 44), and Eric Swalwell (D-Calif., Dist. 15), came out in support of law enforcement.

While lawmakers returned to their home districts for the December recess, it is likely that when Congress returns in January, members will continue discussions on topics ranging from funding and protective armor for law enforcement to sentencing reform and immigration.

Prior to the events in San Bernardino, lawmakers continued the serious discussions about law enforcement and the communities they serve. At the time PORAC had its annual meeting, the Senate Judiciary Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts convened a hearing entitled “The War on Police: How the Federal Government Undermines State and Local Law Enforcement.” The conversation covered topics ranging from increased law enforcement funding to the federal government’s role in engaging state and local law enforcement. Members of the subcommittee also emphasized the need to change the national dialogue as it pertains to law enforcement — an opinion that PORAC voiced when visiting congressional offices during its September fly-in.

During the past month, Congress completed its remaining fall agenda items. December commenced with the successful passage of a five-year, $305 billion transportation bill — the first long-term highway funding bill in a decade. From there, congressional leaders negotiated a multipart government spending bill (commonly referred to as an “omnibus”), which avoided a government shutdown.

In the weeks leading up to the shutdown deadline of December 11, House Republicans and Democrats appeared unable to agree on the bill’s trajectory. Republicans sought specific policy provisions (so-called “riders”) aimed at dealing with issues including the environment, the Syrian refugee crisis, financial regulatory reform and campaign finance restrictions. Democrats considered such provisions toxic additions to the bill, and pushed provisions of their own that Republicans found unacceptable.

After coming together to pass a short-term measure to fund the government through December 18, policymakers finally struck a deal. Part of this deal was to include funding for those police officers, first responders and firefighters who worked on rescue efforts at the World Trade Center site post 9/11. Many of these individuals had been suffering from ill health effects as a result of their actions, and a health program was extended to address the costs of care for these heroes. At the time this issue went to print, the bill text had been resolved, but the vote still had not taken place.

Sentencing Reform

In late November, the House Judiciary Committee approved a revised bill to overhaul criminal sentencing laws for nonviolent drug offenders. As we reported previously, the bipartisan bill — the Sentencing Reform Act of 2015 (H.R. 3713) — was introduced in October by a group of 17 members, including House Judiciary Committee Chairman Bob Goodlatte (R-Va.), Ranking Member John Conyers (D-Mich.), and Representatives Sheila Jackson Lee (D-Texas), Raúl Labrador (R-Idaho), Mike Bishop (R-Mich.), Judy Chu (D-Calif.) and Mimi Walters (R-Calif.).

Unlike the Senate’s sentencing reform bill, which is composed of both “front end” sentencing reform and “back end” prison reform, the House bill focuses solely on reforming front-end sentencing procedures and processes. The House bill does, however, contain several provisions identical to those in the Senate bill.

For example, the House bill contains a provision to reduce mandatory minimum sentences for prior drug felons, including lowering the so-called “three strikes” penalty — which mandates harsher sentences for those who have previously been convicted of two prior serious criminal offenses — from life imprisonment to 25 years. The House bill would also retroactively apply the Fair Sentencing Act, which reduced the disparity between sentences for cocaine and crack possession. In addition, the bill includes provisions to broaden the existing “safety valves” in the criminal justice system, which allow judges to utilize their discretion in sentencing determinations if certain conditions are met. Unlike the Senate bill, however, the House bill does not create new mandatory minimum sentences.

Given the speed with which the Senate and House bills have been moving, and their diverse base of supporters, it is likely that sentencing reform will have a chance of moving forward to floor debate in the first or second quarter of 2016. Meanwhile, PORAC will continue meeting with lawmakers involved in the process to urge that criminal justice reforms be narrowly tailored and thus avoid undermining community safety.

Opioid Abuse Hearing

On December 8, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing entitled, “Opioid Abuse in America: Facing the Epidemic and Examining Solutions.” Among those testifying at the hearing were Leana Wen, Baltimore City Health Commissioner; Professor Robert Valuck, Department of Clinical Pharmacy, University of Colorado; and Eric Spofford, CEO of Granite House, a recovery center for former addicts.

The role that law enforcement plays in addressing and mitigating the opioid epidemic was of interest to several senators. Senator Susan Collins of Maine, for example, acknowledged that law enforcement is intricately involved in combating the opioid epidemic, and she shared several stories from sheriffs in Maine. These sheriffs told her how the local jails are overwhelmed with heroin addicts, an issue many jails may face across the nation.

PORAC submitted a statement to the committee describing how the opioid epidemic is playing out in California, noting that “the increase in opioid abuse appears to be a direct result of the price competitiveness of heroin and other opioids vis-à-vis other illegal substances” and that “California’s Central Valley is a primary destination and distribution point for heroin once it crosses the border from Mexico.”

Most importantly, PORAC highlighted that “local police are [often] the first to respond to crisis calls relating to drug use, mental illness and other health matters.” PORAC described trafficking trends and the implications of sentencing reform on opioid abuse. Significantly, PORAC urged lawmakers to enact meaningful policy reforms, which include robust funding for both community policing efforts and social services programming.

The Electronic Communications Privacy Act (ECPA)

On December 1, the House Judiciary Committee convened a hearing to discuss the Email Privacy Act (H.R. 699). The bill, introduced by Representative Kevin Yoder (R-Kan.), aims to update the Electronic Communications Privacy Act of 1986 and clarify the situations when law enforcement can legally access emails. Of particular import to PORAC members, the legislation would require law enforcement agencies to obtain a search warrant in order to access the contents of Americans’ electronic communications.

Though the bill has strong support in Congress and in the tech community, opponents of the bill have expressed concerns that the measure could impede investigations. During the hearing, for example, Special Agent Richard Littlehale of the Tennessee Bureau of Investigation noted that law enforcement relies on ECPA to gather electronic evidence, which serves as the building block for cases in a range of critical investigations, and that the current process could be disrupted.

While policymakers and industry groups agree that the ECPA must be updated, nuances in the bill have prevented it from being brought to markup (the point in the legislative process when a congressional committee debates, amends and rewrites proposed legislation). PORAC will continue to explain to lawmakers that the ability to obtain and investigate the contents of electronic communications is vital to effective law enforcement. While PORAC supports ECPA reform, PORAC wants to ensure that such legislation does not hinder law enforcement investigations.