Federal Legislation – Congress Acts on PORAC’s Federal Legislative Priorities

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

Congress was busy in April, addressing a number of law enforcement issues of concern to PORAC. On March 23, Congress passed and the president signed into law an omnibus federal spending bill that substantially increases FY 2018 funding for state and local law enforcement grant programs and includes provisions boosting federal support for school security initiatives and related law enforcement activities.

President Brian Marvel submitted testimony on behalf of PORAC to the Senate Judiciary Committee in conjunction with its hearing on reauthorization of the Violence Against Women Act (VAWA). He expressed strong support for the reauthorization of VAWA, which provides grants and other resources to state and local law enforcement for combating domestic violence, sexual assault, stalking and related crimes.

Congress intensified its focus on the opioid crisis in April. At least seven House and Senate committees held hearings on legislative proposals to address the ongoing nationwide epidemic. Many proposals under consideration were still in their early stages, but the Senate Health, Education, Labor and Pensions (HELP) Committee announced plans to consider and vote on a comprehensive opioid crisis response bill in late April or early May.

On April 11, President Trump signed the PORAC-supported Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA) (H.R. 1865), which subjects online platforms such as Backpage.com to harsher state and federal penalties when they enable or encourage sex trafficking.

Federal Funding for Local Law Enforcement Boosted by Congress

On March 23, President Trump signed into law the Consolidated Appropriations Act of 2018, an omnibus appropriations bill funding all components of the federal government for the remainder of FY 2018. The bill passed the Senate by a vote of 65–32 early that morning, after passing the House 256–167 the day before. The omnibus substantially boosts funding for vital state and local law enforcement assistance programs, appropriating a total of $2.4 billion for state and local law enforcement activities (a $375 million increase over FY 2017), including:

  • $275 million for the Office of Community Oriented Policing Services (COPS), a $54 million increase over FY 2017
  • $416 million for the Byrne JAG program, which provides grants supporting a broad range of state and local law enforcement activities — a $5 million increase over FY 2017
  • $492 million for grants and programs established under VAWA, which provide essential services to victims and assist state and local law enforcement in the fight against domestic violence, dating violence, sexual assault and stalking — approximately $10.5 million more than last fiscal year

PORAC has vocally and consistently urged federal lawmakers to fully fund grant programs for state and local law enforcement. In early March, President Marvel and Vice President Brent Meyer spent two days meeting with members of Congress and Trump administration officials urging support for Department of Justice (DOJ) grant programs in general, and the COPS Office and Byrne JAG program in particular.

PORAC Testifies in Support of VAWA Reauthorization

In response to a request from Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.), President Marvel submitted testimony on behalf of PORAC for a March 20 Senate Judiciary hearing titled “The Need to Reauthorize the Violence Against Women Act.” He expressed strong support for reauthorization of VAWA, and urged lawmakers to support VAWA programs that provide grants, training and technical assistance to state and local law enforcement. The testimony cited national data showing that despite progress over the years, domestic violence remains too common, with approximately 10 million Americans subjected to physical abuse by an intimate partner each year.

President Marvel shared with the committee concrete examples of innovative domestic violence response strategies that California law enforcement officers and community groups have found effective. Assisting in developing the testimony by sharing their insights and experiences were Sergeant Lisa Maneggie of the Sacramento Police Department’s Domestic Violence Unit; Elaine Whitefeather, executive director of A Community for Peace (a Citrus Heights–based victim support and advocacy organization); and David Cropp, director of Domestic Violence Response Team Services at A Community for Peace.

Congress Passes School Safety Legislation

The Consolidated Appropriations Act of 2018 (FY 2018 omnibus) incorporated provisions from the Student, Teachers and Officers Preventing (STOP) School Violence Act of 2018 (H.R. 4909), a PORAC-supported bill to increase federal support for state and local school safety.

The STOP School Violence Act was introduced on January 30 by Representative John Rutherford (R-Fla.) and passed the House by a vote of 407–10 on March 14. It is intended to help public safety officers spot warning signs of violence early and prevent future tragedies. Grant funding under the act may be used for subgrants to state and local law enforcement agencies and school violence response training for law enforcement officers. In addition, state and local governments may use grants to fund school threat assessment and intervention teams (which may include coordination between law enforcement and school personnel).

The legislation increases grant funding available for state and local school safety initiatives by reauthorizing through 2028 an expired federal matching grant program administered by the DOJ’s Bureau of Justice Assistance (BJA), increasing the amount of authorized funds from $30 million per year under prior law to $50 million per year, and increasing to 75% the portion of an applicant’s costs that may be covered by a grant.

House and Senate Committees Consider Opioid Crisis Response Legislation

In April, House and Senate committees held hearings and considered legislation intended to address opioid addiction by (1) funding training and equipment for law enforcement and other first responders, (2) providing greater access to substance abuse treatment, (3) regulating over-prescription, and (4) increasing criminal penalties associated with distribution of particularly deadly opioids such as fentanyl.

On April 11, the Senate HELP Committee, House Energy and Commerce Committee, and House Oversight and Government Reform Committee all held hearings on the opioid epidemic and legislative response proposals. Other committees that scheduled April hearings on the opioid crisis include the House Armed Services Committee, House Transportation and Infrastructure Committee, and the Senate Finance Committee.

One proposal expected to advance through the Senate HELP Committee in late April or early May is the Opioid Crisis Response Act of 2018, a wide-ranging bipartisan bill that would (1) streamline processes at the National Institutes of Health to advance research into nonaddictive painkillers, (2) enhance Customs and Border Protection screening for synthetic opioids like fentanyl entering the country, (3) upgrade FDA regulations governing the packaging and prescribing of opioids to cut down on over-prescription, (4) adjust Medicare and Medicaid coverage of mental health services to boost access to addiction treatment, and (5) provide grants to states for purposes including training for law enforcement officers on substance use disorders.

Federal Court Bars DOJ From Withholding COPS Grants From Sanctuary Cities

On April 12, the U.S. District Court for the Central District of California ruled that the DOJ cannot condition COPS grant awards on whether an applicant local law enforcement agency cooperates with federal immigration enforcement efforts. The ruling was accompanied by a permanent nationwide injunction banning DOJ grantmakers from giving preference to state and local law enforcement agencies that cooperate with federal immigration authorities. DOJ officials have indicated the federal government will appeal the district court’s ruling.

The case, City of Los Angeles v. Sessions, focuses on the constitutionality of a DOJ policy announced on September 7, 2017, that gives priority consideration for COPS Hiring Program grants to applicant jurisdictions that (1) give federal immigration enforcement access to their detention centers, (2) comply with federal requests to provide 48 hours notice before releasing certain immigrant detainees, and (3) do not restrict communications between local government officials (including law enforcement) and immigration authorities.

The district court held that the DOJ policy violates Supreme Court precedent restricting the federal government from compelling states and localities to enforce federal law. Additionally, the court concluded that the DOJ policy violated constitutional and statutory provisions restricting executive branch agencies from altering spending programs without clear congressional authorization.

Federal Legislation – Washington Races to Pass Legislation

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.

Washington Fly-In Spring 2017

With a new administration in place, the PORAC advocacy team kicked off spring in our nation’s capital, meeting with California’s congressional representatives as well as committees and agencies responsible for public safety policy. PORAC’s meetings with lawmakers on March 21 and 22 centered around COPS funding and other issues of top importance to law enforcement in California and across the nation.