Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Ryan McClafferty
Law Clerk
Steptoe & Johnson LLP

November was a busy month in Congress as lawmakers tried to pass legislation before the Thanksgiving recess. The biggest focus was on tax reform, but legislators and the Trump Administration also devoted significant time to the ongoing opioid abuse epidemic and the federal response.

PORAC Submits Testimony to House Committee Examining the Opioid Crisis

On October 25, the House Energy and Commerce Committee held a hearing titled “Federal Efforts to Combat the Opioid Crisis,” in which members sought information on the causes of the ongoing nationwide opioid abuse epidemic and heard testimony on potential legislative solutions to the problem. Congress Member Mimi Walters (R-Calif.) submitted PORAC President Mike Durant’s prepared testimony.

PORAC’s testimony advised against complacency in the ongoing fight against the opioid epidemic and encouraged Congress to devote additional resources to the problem. The testimony emphasized the growing role that police and public safety personnel are playing on the frontlines of the battle against opioid abuse as funding and programming for community health initiatives have declined. PORAC asked lawmakers to take this growing role into account as they consider budgets and cautioned that funding cuts could hamper community policing — a crucial part of the response to the opioid crisis in California and around the nation.

PORAC also commended the Drug Enforcement Administration (DEA) for its efforts to inform law enforcement and other first responders about the hazards of responding to emergencies involving fentanyl — an extremely potent opioid that can be life-threatening even in small quantities, and can be absorbed through inadvertent inhalation or contact with the skin or eyes. The DEA warning came after several peace officers around the country accidentally came into contact with the drug and suffered severe negative health effects.

PORAC put forth five concrete policy solutions for Congress to consider as it strives to fight the opioid epidemic:

• Work to seal our borders to prevent the entry of illegal drugs from abroad
• Enact laws to ensure that opioid pharmaceuticals are prescribed in a safe manner
• Fully fund community policing efforts and social services programs
• Provide resources to law enforcement to help mitigate the health risks posed to officers by fentanyl, including guidance from appropriate federal agencies such as the DEA and FDA
• Carefully review the recommendations of the President’s Commission on Combating Drug Addiction and the Opioid Crisis

On November 1, the President’s Commission on Combating Drug Addiction and the Opioid Crisis released a report recommending that the federal government:

• Streamline federal funding for anti-drug addiction efforts into a block grant
• Remove barriers to addiction treatment by, among other things, enforcing parity laws requiring insurers to pay for drug rehabilitation and related care
• Open drug courts in all federal jurisdictions
• Release a “national curriculum and standard of care for opioid prescribers” through the Department of Health and Human Services
• Revise the National Highway Traffic Safety Administration’s best practices guide on naloxone to recommend that all emergency medical responders carry naloxone
• Enhance federal sentencing penalties for fentanyl trafficking
• Launch a federally funded media campaign on the dangers of opioids and addiction stigma

House Republicans Release Tax Overhaul Bill

The effort to pass tax reform legislation is expected to dominate Congress’ schedule for the remainder of the year, and is a top priority for the Trump Administration.

On November 2, House Ways and Means Committee Chairman Kevin Brady (R-Texas) unveiled a draft tax reform bill that would, among other things:

• Nearly double the standard deduction (the dollar amount that individual taxpayers may subtract from their income before income tax is applied if they do not itemize their deductions) to $12,000 for individuals and $24,000 for couples
• Reduce the current number of individual tax brackets from seven to four — with levels of taxable income at 12%, 25%, 35% and 39.6% (the current level for the highest earners)
• Repeal the alternative minimum tax, which prevents those earning over $130,000 from using deductions to pay less than a specified amount in taxes
• Phase out the tax required on the transfer of a deceased person’s estate (known as the estate tax)
• Increase the child tax credit from $1,000 to $1,600

The bill’s release was delayed as Republican leadership worked with rank-and-file members on controversial provisions in the draft bill, including a proposal to eliminate the federal deduction for state and local taxes. The proposal drew opposition from a number of Republican members from higher-tax states, such as California, New York and New Jersey. Republican leaders included a compromise that would allow individuals to deduct state and local property taxes (though not income or sales taxes) up to $10,000. At the time this issue went to print, the Ways and Means Committee had passed the bill out of committee and House Republican leadership had said the goal is to pass the bill out of the House the week of November 13. Senate Republicans, meanwhile, released information on their tax bill on November 9, which indicates that the Senate version will differ in significant ways from the House bill.

Department of Justice Announces New Funding for Community Policing Efforts and Active-Shooter Training

On October 23, the DOJ announced nearly $9 million in new funding through its Office of Community Oriented Policing Services (COPS) to support community policing and  provide training to help law enforcement officers prepare for active-shooter situations. $3.6 million in Community Policing Development (CPD) program grants will go to grantees that provide community policing training and technical assistance, develop innovative community policing strategies, conduct applied research, and develop guidebooks and best practices. Among the CPD grantees is the City of Stockton, California, which will receive $75,000 to implement the Stockton Police Department’s Safety, Health, Resilience, Endurance and Development (SHRED) program.

In addition, the COPS Office will award $5.4 million in grants, from the Preparing for Active Shooter Situations (PASS) Training Program to the Advanced Law Enforcement Rapid Response Training (ALERRT) Center at Texas State University. The grants will support scenario-based training that prepares law enforcement officers and other first responders to respond safely and effectively to active-shooter threats. Awards for all FY2017 COPS Office grant programs but one — the Collaborative Reform Initiative for Technical Assistance (CRI-TA) — have been announced. CRI-TA grants fund training and technical assistance projects designed to advance community policing. The COPS Office plans to announce FY2017 CRI-TA awards after December 1, 2017.

Senate Judiciary Committee Releases New Bipartisan Sentencing Reform Legislation

On October 4, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) introduced the Sentencing Reform and Corrections Act of 2017 (S. 1917) along with five Republican and five Democratic co-sponsors, including Senator Dianne Feinstein (D-Calif.). The bill includes provisions that would recalibrate prison sentences for nonviolent drug offenders, strengthen penalties for violent and career criminals, permit judicial discretion at sentencing for offenders with minimal criminal histories, help released inmates successfully re-enter society, and preserve important prosecutorial tools.

The bill also authorizes $14 million to create a two-year National Criminal Justice Commission that would undertake a comprehensive review of the U.S. criminal justice system and make recommendations to the president and Congress for changes in federal policies to reduce crime and violence, reduce recidivism and improve cost-effectiveness.

A summary of the legislation’s provisions addressing mandatory minimums, violent offenses, drug offenses and recidivism reduction is provided below.

Mandatory minimum sentencing reform: The legislation would reduce mandatory minimum sentences for prior drug felons by shortening the three-strike penalty from life imprisonment to 25 years and reducing the 20-year minimum to 15 years. The legislation would also give judges more discretion in sentencing nonviolent offenders.

Enhancement of mandatory minimum sentences for certain violent offenses and drug crimes: A new mandatory minimum sentence of 10 years would apply for offenders convicted of interstate domestic violence if death results. In addition, the bill would provide enhanced penalties for interstate domestic violence offenses that involve the use of a dangerous weapon or result in permanent disfigurement or life-threatening injury. With regard to the opioid epidemic, judges would be required to increase sentences by up to five years for offenses involving fentanyl.

Recidivism reduction: The legislation would require the DOJ to provide new recidivism reduction programming and conduct recidivism risk assessments for all federal inmates. DOJ would use assessment results to assign inmates to employment, education, drug rehabilitation and faith-based recidivism reduction programs. Prisoners who successfully complete these programs could earn early release and be permitted to spend a portion of their remaining sentence in a re-entry center or home confinement.

Reforms aimed at juveniles and elderly inmates: The bill would allow juveniles convicted as adults and sentenced to life terms to seek parole after serving 20 years, and would impose limitations on the use of solitary confinement for juveniles in the federal system. In addition, the legislation would create a “compassionate release” program that would permit nonviolent offenders over 60 years old, offenders in nursing homes who have served a large portion of their sentences and terminally ill offenders to secure release in certain circumstances.

It is unclear when the Senate Judiciary Committee will take up this legislation. There is no companion bill in the House, but the House Judiciary Committee is considering standalone legislation identical to the National Criminal Justice Commission provision in the Senate bill.