DARRYL NIRENBERG
Partner
JASON ABEL
Of Counsel
EVA RIGAMONTI
Associate
Steptoe & Johnson LLP

 

Following a productive fall, lawmakers returned from the holiday recess with renewed momentum to address criminal justice reform. Supporters of the bipartisan Sentencing Reform and Corrections Act of 2015 (S. 2123) are hopeful that it will reach the Senate floor in early 2016, although Majority Leader Mitch McConnell (R-Ky.) has yet to set a date for floor consideration.

Congress also seems poised to address structural issues related to mental health care. In December, the Senate passed Senator Al Franken’s (D-Minn.) Comprehensive Justice and Mental Health Act (S. 993), designed to boost access to mental health care in the criminal justice system. A similar bill, the Mental Health and Safe Communities Act of 2015 (S. 2002), aims to strengthen the nation’s mental health system and improve public safety through a series of reforms. Its sponsor, Senate Majority Whip John Cornyn (R-Texas), expected the Senate Judiciary Committee to have a hearing on the bill in January, but that had not yet been scheduled at press time. While it remains to be seen whether lawmakers can push through criminal justice and mental health reforms, it is clear that these issues are important to members of both parties.

Despite these areas of potential compromise, there is little time this year — only 30 work weeks — for lawmakers to accomplish substantive legislative goals. This shortened work period was designed to accommodate the presidential conventions in July and provide members of Congress with time to focus on their campaigns. Given the time constraints, any floor votes will be extremely important to vulnerable Republican senators in states like Ohio, Illinois, Wisconsin, Pennsylvania and New Hampshire, as they are being targeted by Democrats fighting to regain the majority in the Senate. (To do so, the Democrats will need to gain four seats if they also retain the White House, and five seats if they do not.)

Law Enforcement Funding

We are pleased to report that the multipart government spending bill (“omnibus”) that was passed right before the holiday recess included important funding for law enforcement. During its September fly-in, PORAC advocated for increased law enforcement funding and explained to lawmakers the importance of the Community Oriented Policing Services (COPS) Hiring Program, funding for which was cut entirely out of the House version of the Commerce, Justice, Science and Related Agencies (CJS) Appropriations Act of 2016.

Therefore, it is no small victory that — at a time when many programs are being cut — Congress increased funding for the COPS Office, allocating $212 million for this fiscal year. Included in this appropriation is $187 million for the COPS Hiring Program, which many California law enforcement agencies utilize to hire and retain law enforcement personnel. This amounts to a $7 million increase from 2015 funding levels.

In addition, the omnibus included $7 million for competitive grants to assist state law enforcement agencies facing high rates of local heroin and opioid abuse. As PORAC noted in a statement to the Senate Committee on Health, Education, Labor and Pensions following its December hearing on opioid abuse, “local police are [often] the first to respond to crisis calls relating to drug use, mental illness and other health matters.” The funds allocated by Congress will assist law enforcement in addressing this serious epidemic.

The omnibus also appropriated $476 million (a $100 million increase from FY 2015) for the Edward Byrne Memorial Justice Assistance Grant Program, which is the leading source of law enforcement funding for local jurisdictions. The grant program is used to support law enforcement, prosecution, indigent defense, courts, crime prevention and education, corrections, drug treatment and enforcement, technology improvement, and crime victim and witness initiatives.

In line with amounts from 2015, Congress appropriated $22.5 million to support a law enforcement armored vests program, and $73 million for grants to update criminal and mental health records in the National Instant Criminal Background Check System. Policymakers also put aside $6.5 million — $1.5 million more than in 2015 — for programs to reduce gun crime and gang violence, and $70 million for initiatives to improve police–community relations, including $22.5 million for a competitive grant program to purchase body-worn cameras for state, local and tribal law enforcement. PORAC will continue meeting with congressional offices to emphasize the importance of these programs and to advocate for increased funding for law enforcement agencies.

Gun Safety Measures

On January 5, citing Congress’ inability to pass significant gun control legislation, President Obama announced new executive actions to address gun violence in the United States.

The President directed the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to issue guidelines clarifying that anyone “engaged in the business” of selling firearms — including sellers operating over the Internet or at gun shows — must get a license and conduct background checks. Under current law, those “engaged in the business” of selling firearms must operate with a federal license and must subject purchasers to background checks. However, individuals who make “occasional sales,” so-called private sellers, are exempt from the license and background check requirements. By establishing stricter evaluation criteria that will limit the number of individuals who can sell guns as private sellers, the executive order is attempting to suppress the proliferation of these private sellers. Similarly, ATF will finalize a regulation to prevent prospective gun purchasers from avoiding background checks by using a trust or corporation to acquire guns.

The plan also aims to overhaul the background check system to make it more effective and efficient. The FBI plans to hire 230 people to help run background checks, an increase of more than 50% over the current staff. The Social Security Administration has also indicated that it will begin a rulemaking process to develop a system to incorporate information regarding beneficiaries who are prohibited from possessing a firearm for mental health reasons into the background check system. Similarly, the Department of Health and Human Services is working to finalize a rule to remove unnecessary legal barriers that prevent states from reporting relevant information about people who have specific mental health concerns that prohibit them from possessing a firearm.

Many members of Congress echoed the President’s call for stronger gun safety measures, including Representatives Janice Hahn (D-Calif., Dist. 44), Doris Matsui (D-Calif., Dist. 6) and Mike Thompson (D-Calif., Dist. 5); Senator Dianne Feinstein (D-Calif.); and other members of the California delegation. Though such policies are supported and applauded by many Democrats in Congress, Republicans are hoping to limit the President’s ability to institute them and will likely pursue legislative actions to block funding for the President’s initiatives.