Steptoe & Johnson LLP
Law enforcement initiatives have once again become the talk of Washington. Both the House and Senate have passed (or are actively reviewing) legislation to address prison reform and law enforcement grant funding. The Supreme Court has also jumped into the fray, restricting police authority to conduct warrantless searches of rental cars and vehicles in driveways.
PORAC-Endorsed Project Safe Neighborhoods Grant Program Authorization Act (H.R. 3249) Passes Congress
On June 6, Congress passed the Project Safe Neighborhoods Grant Program Authorization Act (H.R. 3249). The bill creates a grant program at the Department of Justice to help law enforcement combat gang violence and other violent crimes, and directs that funds issued through this program be community-controlled to address local issues.
The act was introduced by Representative Barbara Comstock (R-Va.) in the House and Senator John Cornyn (R-Texas) in the Senate. At the time this publication went to print, it was expected that President Trump would sign the legislation into law. PORAC actively supported the bill.
Prison Reform: House Passes FIRST STEP Act; Presidential Pardons Back in the Spotlight
On May 22, the House passed the FIRST STEP Act (S. 2795/H.R. 5682), which would authorize funding for prison-based training programs intended to help rehabilitate prisoners convicted of nonviolent crimes. The bill quickly sailed through the House, passing by a vote of 360–59. Its fate in the Senate, though, remains uncertain. The Senate is sharply divided on the issue of prison reform, and some reporters have declared the bill to be “dead on arrival.”
Senator Tom Cotton (R-Ark.) contends that the bill is too forgiving of convicted felons, particularly those who have smuggled or sold heroin, opioids or other illegal drugs. On the other side of the aisle, Democrats — including Senators Kamala Harris (D-Calif.), Dick Durbin (D-Ill.) and Cory Booker (D-N.J.) — argue that the bill, by not including changes to sentencing, does not go far enough in providing for comprehensive criminal justice reform. Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who also favors a comprehensive reform package, has said his committee will not vote on legislation that does not holistically address the criminal justice system.
Driving this newfound eagerness to tackle prison reform is President Trump. After the House passed the FIRST STEP Act, the president held a summit at the White House and urged a number of senators to sit down at the negotiating table with him. President Trump’s son-in-law and adviser Jared Kushner also is pushing for the bill’s passage.
The White House has been addressing the issue of prison reform at an individual level by granting pardons to nonviolent criminals. Since assuming office, President Trump has pardoned or commuted the sentences of seven individuals, including former Arizona sheriff Joe Arpaio, former U.S. Navy sailor Kristian Saucier, former Vice President Dick Cheney’s chief of staff Lewis “Scooter” Libby, businessman Sholom Rubashkin and political commentator Dinesh D’Souza. President Trump also posthumously pardoned boxer Jack Johnson, the first African American heavyweight champion, after receiving a call from actor Sylvester Stallone. Johnson was convicted in 1913 for violating a Jim Crow–era law that forbade the transportation of a white woman across state lines “for the purpose of prostitution or debauchery, or for any other immoral purpose.”
In addition, the president commuted the sentence of Alice Johnson, who had been serving a life sentence for a nonviolent drug crime, after television star Kim Kardashian West visited the White House at the end of May and pushed for Johnson’s release.
President Trump has signaled his willingness to grant pardons and commutations to more individuals. Since his meetings with Stallone and Kardashian West, the president has asked others — including players of the National Football League — for names of those he should pardon.
Senate Cancels Summer Recess to Focus on Nominations and Funding
Senate Majority Leader Mitch McConnell (R-Ky.) announced on June 5 that the Senate’s customary four-week-long summer break (known as the August recess) has been canceled. The reason: so that lawmakers can focus on President Trump’s judicial nominations and the federal budget.
There are nearly 150 judicial vacancies across the country, and Senate Democrats have been using a series of delaying tactics to slow down the process of confirming the president’s nominees. McConnell is hoping the extra time in August will allow the Senate to fill many of these vacancies.
The Senate also needs to pass legislation to fund the government — including the Department of Justice (DOJ) — past September 30. PORAC has been actively pressing for full funding of DOJ grant programs. On June 14, the Senate Appropriations Committee approved this funding, which includes $445 million for the Edward Byrne Memorial Justice Assistance Grant (Byrne-JAG) Program (compared to $405 million in fiscal year 2018), and $40 million for various Community Oriented Policing Services (COPS) grant programs (compared to $19 million in FY18). The bill also appropriates $30.7 billion to fund the entire Justice Department, $402.5 million more than was appropriated in FY18.
Congress also is working on the National Defense Authorization Act (NDAA), which includes updates to the Electronic Communications Protection Act (ECPA) (which currently allows law enforcement to search a person’s digital records — such as email — without a warrant, provided that the information is older than 180 days). The amendments to ECPA in the NDAA would require law enforcement to obtain a warrant and notify the individual whose records are to be searched. PORAC opposes these proposed changes.
School Safety Continues to
Be a PORAC Priority
As the rash of school shootings unfortunately continues, PORAC is working with members of Congress to best identify solutions to prevent another tragedy. California Representative Stephen Knight (R-Antelope Valley) recently introduced — with PORAC’s support — a bill to train school faculty and staff on how to safely respond to active shooters. The bill also promotes communication between schools and law enforcement personnel in these situations.
PORAC also is focusing on bills that support school resource officers. One of these bills, the School Resource Officer Assessment Act (H.R. 5242), would require the federal government to conduct a survey on how school resource officers are used across public elementary and secondary schools. The bill unanimously passed the House in May, and PORAC sent a letter to Congress expressing its support. The bill now heads to the Senate for its consideration.
High Court Rules Against Law Enforcement
As the Supreme Court wraps up its 2018 term, it has issued two decisions further restricting a police officer’s ability to search rental cars and vehicles parked in private driveways.
In Byrd v. United States, 584 U.S. ___ (2018), the court held that a person in lawful possession and control of a rental car retains their Fourth Amendment privacy rights in that automobile. In 2014, Terrence Byrd was driving a rental car when he was pulled over by a police officer for a minor traffic infraction. The car had been rented by another individual, who was not in the car at the time it was stopped. The officer searched the vehicle, believing that he did not need Byrd’s consent to search because Byrd was not named on the rental agreement, and subsequently found heroin and illegal body armor. Byrd was convicted and sentenced to 10 years in prison. In reversing the U.S. Court of Appeals for the Third Circuit’s decision upholding the warrantless search, the Supreme Court unanimously held that drivers of rental cars not listed on the agreement retain their Fourth Amendment reasonable expectation of privacy. Police officers may now need to obtain a warrant in order to search a rental car, even if the driver is not listed on the car’s rental agreement. The case was sent back to the Third Circuit to consider the other arguments presented in the case, including whether probable cause justified the search at all.
In Collins v. Virginia, 584 U.S. ___ (2018), the court held that law enforcement officers must obtain warrants before searching vehicles parked in private driveways. At issue in this case was whether the Fourth Amendment’s automobile exception allows an officer without a warrant to enter a home’s “curtilage” (i.e., the area immediately surrounding it) to search a vehicle parked there. The automobile exception allows police to search a car without a warrant if the vehicle is “readily mobile” and there is probable cause to believe it contains evidence of a crime. In an eight-to-one opinion authored by Justice Sonia Sotomayor, the court explained that a warrantless search of a vehicle parked within the curtilage of one’s home is not permissible. In other words, law enforcement can no longer rely on the automobile exception when a car is parked in a private driveway. Absent other circumstances, an officer will first need to obtain a warrant.