Steptoe & Johnson LLP
After a snowstorm shut down Washington, D.C., for a week, Congress finally settled in to debate comprehensive energy reform and kick off the appropriations process. In the midst of these legislative concerns, the presidential primary season got off to a roaring start.
In the weeks leading up to the first contest of the presidential season — the February 1 Iowa caucuses — Donald Trump and Senator Ted Cruz (R-Texas) jockeyed for the lead Republican spot, while Senator Bernie Sanders (D-Vt.) and former Secretary of State Hillary Clinton vied for the top slot among Democrats. Cruz, who emerged with 27.7% of the Iowa vote, ultimately outpaced Trump, who received 24.3%. Senator Marco Rubio (R-Fla.) also had a strong performance, closely tailing Trump with 23.1%. The rest of the GOP candidates received below 10% of the vote.
On the Democratic side, the results came within a fraction of a percentage point in terms of the delegate count, with Clinton narrowly claiming victory. While the raw votes are not disclosed, Clinton and Sanders received 49.9% and 49.6% of the delegate count, respectively. Former Maryland Governor Martin O’Malley, the oft-forgotten Democratic presidential hopeful, ultimately suspended his campaign after receiving only 0.6% of the delegate count.
One week later, on February 9, the candidates faced off in the New Hampshire primary. The night ended with big wins for Trump and Sanders, both of whom had double-digit leads over their opponents. Ohio Governor John Kasich had a strong second-place finish, receiving 15.8% of the vote, followed by Cruz (11.7%), former Florida Governor Jeb Bush (11%) and Rubio (10.5%). The remaining Republican candidates received below 10% support. With only two candidates contending for the Democratic nomination, Sanders outpaced Clinton by more than 20 points, with Sanders receiving 60% of the vote and Clinton receiving 38% of the vote.
Hearing on the Opioid Epidemic
In late January, the Senate Judiciary Committee held a hearing to examine America’s heroin epidemic and prescription drug abuse. Testifying at the hearing were senators whose states have been particularly hard hit by heroin abuse, medical administrators, and those on the frontlines of the epidemic, including Enoch Willard, Chief of Police for the Manchester (New Hampshire) Police Department.
PORAC submitted a statement to the committee describing the role that law enforcement plays combating the opioid epidemic and proposing three policy solutions. First, PORAC urged lawmakers to seal the borders and prevent the entry of illegal drugs from abroad. Second, PORAC emphasized the need for laws to ensure that opioid pharmaceuticals are being prescribed in a safe manner. Third, PORAC urged lawmakers to provide robust funding for both community-policing efforts and social services programs. Committee Chairman Chuck Grassley (R-Iowa) advocated for similar policy solutions during the hearing, explaining that “we can’t arrest our way out of this epidemic, but we can continue to crack down on unlawful prescribing practices, enforce our border with Mexico and target the violent cartels that are trafficking heroin in this country.”
Criminal Justice Reform
Supporters of the Sentencing Reform and Corrections Act (S. 2123) are hopeful 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. During the first week of February, President Obama held a private meeting with Representative Bob Goodlatte (R-Va.) and Senator Chuck Grassley (R-Iowa), — chairmen of the Judiciary Committees in each chamber — to discuss criminal justice reform. For many, this was a promising signal that efforts to iron out key differences between the House and Senate bills are intensifying and that the President has made enactment of reform a personal priority.
In addition, Senators Mike Lee (R-Utah) and Chuck Grassley, two co-sponsors of S. 2123, discussed the legislation with members of law enforcement at a briefing on February 9. The briefing follows the circulation of a pair of letters by Republican leaders to their colleagues. In the letters, more than 130 law enforcement leaders called upon policymakers to pass the bill as a means to reduce crime rates and unnecessary incarceration.
Law Enforcement Funding
On February 9, the White House released President Obama’s $4.1 trillion budget for fiscal year (FY) 2017, which proposes spending levels for the various departments and agencies within the federal government.*
- COPS program: Of the $29 billion requested for the Department of Justice (DOJ), the budget proposes $286 million for the Community Oriented Policing Services (COPS) Office, which is responsible for awarding competitive, discretionary grants such as the COPS Hiring Program grants to state and local law enforcement agencies. The COPS Hiring Program was allocated $229 million in the President’s request — a $42 million increase over the funds allocated to the program in the comprehensive spending package passed by Congress for FY 2016.
- Byrne JAG: The budget also proposes an increase of $7.5 million over the enacted levels for FY 2016 for the Byrne Justice Assistance Grant (Byrne JAG) Program, which provides states and localities with funding to support law enforcement, prosecution, crime prevention, drug treatment and other important initiatives.
Executive Actions on Prison Reform
At the end of January, President Obama announced a series of reforms to the prison system, including $24 million in the FY 2017 budget for the expansion of “secure mental health units,” which function as alternative housing for inmates with serious mental illness who cannot function in the general prison population.
The reforms are based on a report released by DOJ concerning the use of “restrictive housing” (commonly referred to as “isolation” or “solitary confinement”) in the criminal justice system. Within the report, DOJ undertook a thorough review to determine how, when and why correctional facilities isolate certain prisoners from the general population. The report identified specific guidelines and recommendations to ensure that prison conditions are humane and safe for both inmates and the correctional officers charged with protecting them.
In addition to diverting inmates with serious mental illnesses to alternative forms of housing, the President adopted the following reforms based on DOJ’s recommendations:
- Ending restrictive housing for juveniles
- Diverting “protective custody” inmates to less restrictive conditions
- Limiting the use of punitive segregation
- Holding the most dangerous inmates accountable through federal criminal prosecutions
- Directing wardens to expand out-of-cell time
- Limiting releases directly to the community
- Increasing transparency by publishing system-wide restrictive housing statistics on a monthly basis
As President Obama noted in an op-ed in The Washington Post, “These steps will affect some 10,000 federal prisoners held in solitary confinement — and hopefully serve as a model for state and local corrections systems.” The Bureau of Prisons is expected to begin implementation of these reforms immediately. However, as the reforms were done through executive action — and not with the approval of Congress — another administration could easily change course, negating these reforms.
Supreme Court Update
In recent weeks, the Supreme Court rendered decisions in several cases addressing criminal justice issues.
In a 6-3 decision in Montgomery v. Louisiana, the court held that its 2012 decision on Miller v. Alabama, which found that mandatory life sentences without parole for juvenile homicide offenders was unconstitutional, applied retroactively. However, giving Miller retroactive effect would not require states to re-litigate sentences or convictions in every case where a juvenile offender received mandatory life without parole. The court explains that “a state may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing.” It would be unconstitutional, in contrast, for a state to prevent consideration of parole for juveniles sentenced to life in prison before Miller was decided.
In Hurst v. Florida, the court considered the role of jurors in Florida’s capital punishment system. As a general matter, a jury plays a central role in death penalty determinations. In most states, to impose the death penalty, the jury must evaluate any aggravating factors in a case (evidence that enhances the severity or culpability of a criminal act), as well as any mitigating factors (any information about the defendant that might result in reduced charges or a lesser sentence) that outweigh those aggravating factors. This balancing test is ordinarily done by a jury, and if the jury does not issue a death sentence, then a death sentence will not be imposed. However, in Florida, the jury’s determination is merely “advisory,” and it is the judge who must independently find and weigh the relevant factors and decide whether to enter a death sentence. According to the court, this procedure is unconstitutional and violates the Sixth Amendment. Justice Sonia Sotomayor explained that the “Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” The court found Florida’s death penalty scheme to be unconstitutional by a vote of 8-1, with Justice Alito dissenting.
Electronic Communications Privacy Act Reform
Additionally, at the time this issue went to print, the House Judiciary Committee had announced plans to consider the Email Privacy Act (H.R. 699) — a bill that aims to modernize the Electronic Communications Privacy Act of 1986 by requiring law enforcement to get a warrant before obtaining stored emails — in March 2016.
*The funding levels proposed in the President’s budget are not necessarily the funding levels that are ultimately appropriated by Congress. The President’s budget is the first step in the process, during which Congress decides how much money to spend each year and what to spend it on.