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

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Cameron O’Brien
Legislative Assistant
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 – Congress’ Year-End Push

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Cameron O’Brien
Legislative Assistant
Steptoe & Johnson LLP

Tax Reform and Averting a Government Shutdown

With time running out to notch major legislative victories ahead of the looming 2018 midterm elections, Republicans in Congress spent December working feverishly to pass tax reform legislation. On December 1, the Senate passed its version of a bill to reshape the U.S. tax system by a vote of 51 to 49. On December 6, the Senate decided, by a vote of 51 to 47, to conference the Senate tax reform bill with the House version. The House similarly decided to conference its tax reform bill with the Senate by a vote of 222 to 192 on December 4.

The conference is an opportunity for a temporary committee of House and Senate lawmakers to work out differences in the bills and negotiate a final bill that can be passed by both chambers. The conference committee includes lawmakers from the tax-writing and natural resources committees in both chambers, as the bill to be conferenced contains both tax reform and energy-related provisions, such as opening up the Arctic National Wildlife Refuge in Alaska to oil exploration.

Some of the key issues to be addressed by the conference committee include determining if and how to sunset individual tax cuts, how to consolidate the individual tax brackets, whether to maintain a repeal of the Affordable Care Act’s individual mandate, the effective date of the corporate tax rate cut, how to treat the state and local tax deduction, whether to eliminate or change the alternative minimum tax for corporations, and how to lower tax rates for pass-through entities such as sole proprietorships, partnerships and S-corporations. At the time this issue went to print, many expected a tax reform bill to reach the president’s desk by Christmas.

Also in early December, Congress narrowly averted a government shutdown by passing a two-week continuing resolution (CR), a bill maintaining existing federal government funding levels. The CR will fund the government until December 22, when Congress is expected to pass another short-term CR into January, giving members time to address other impending policy battles on the legislative agenda. Both CRs are intended to buy time for lawmakers to craft an omnibus appropriations bill (a package of spending bills funding all parts of the government).

Lawmakers must decide which separate legislative measures, if any, to include with the next CR. Additional funding for defense spending and disaster aid, an increase in the debt ceiling, a flood insurance extension, reauthorization of NSA spying powers, and children’s health insurance have all been discussed as possible add-ons. Many Democrats insist that a year-end spending bill must include a legislative solution for beneficiaries of the Deferred Action for Childhood Arrivals program.

Federal Government Continues to Focus on Opioid Crisis

On November 29, Attorney General Jeff Sessions announced that the Department of Justice’s Community Oriented Policing Services (COPS) Office is issuing approximately $12 million in grants designed to support law enforcement efforts to crack down on illegal production and distribution of heroin, methamphetamine and pharmaceutical opioids. Specifically, the COPS Office is awarding $7.12 million directly to state and local law enforcement agencies in FY 2017 through the Anti-Heroin Task Force Program (AHTF), which targets funding based on states’ per-capita primary treatment admissions for heroin and other opioids. The COPS Office will also award $5.03 million in FY 2017 to state law enforcement agencies with demonstrated track records of seizing methamphetamine, precursor chemicals, drug labs and drug lab dumps.

Attorney General Sessions also directed all U.S. attorneys to designate opioid coordinators to streamline opioid prosecutions in every district. Each opioid coordinator will assemble and work with a task force of federal, state, local and tribal law enforcement to identify opioid cases for federal prosecution and help districts cooperate with one another in the fight against illicit methamphetamines and opioids.

On December 5, the Senate Appropriations Committee’s Subcommittee on Labor, Health and Human Services, and Education (Chairman Roy Blunt, R-Mo.), held a hearing titled “Addressing the Opioid Crisis in America: Prevention, Treatment and Recovery,” which focused on opioid crisis-related federal funding questions. Subcommittee members heard testimony from Trump administration public health officials and a member of the President’s Commission on Combating Drug Addiction and the Opioid Crisis.

Despite declaring the opioid crisis a public health emergency in October, the Trump administration has not sent lawmakers a formal supplemental funding request. Instead, White House officials have said they are leaving it up to Congress to determine whether additional funds are needed to boost opioid-related law enforcement and public health initiatives. Likewise, Trump administration witnesses at the December 5 hearing refused to give specific answers when panel members asked how much funding their agencies would need.

Subcommittee Democrats argued that the lack of guidance from the administration on funding is evidence that President Trump is not taking the opioid crisis seriously. As of December 8, Congressional Republicans have been hesitant to commit extra funding in a continuing resolution, saying they would prefer to include opioid crisis funds in a larger year-end budget agreement. Senate appropriations bills for FY 2018 currently include approximately $1.5 billion in total federal funding addressing drug abuse, including about $500 million in state grants for opioid epidemic response. Whether or not funds are ultimately provided for state grants will depend on the outcome of ongoing negotiations over a long-term spending bill.

On December 7, PORAC filed comments in response to a request for information issued by the FDA’s newly formed Opioid Policy Steering Committee (OPSC), which is tasked with evaluating ways the FDA can use its regulatory authority to address the opioid epidemic. PORAC’s comments urged FDA to (1) limit unnecessary access to opioids through tighter regulation of prescribing practices and (2) issue guidance aimed at public safety personnel that explains the risks of exposure to fentanyl and outlines best practices first responders can use to minimize those risks.

House Passes Concealed Carry Reciprocity Bill

On December 6, the House voted 231 to 198 to pass H.R. 38, the Concealed Carry Reciprocity Act. The bill would permit any individual authorized to carry a concealed handgun in his or her home state to also do so in any other state that allows concealed carry. The legislation would also require certain federal and state agencies to certify that all information regarding individuals ineligible to purchase firearms is uploaded to the National Instant Criminal Background Check System.

The bill, a top priority of the National Rifle Association, has been denounced by gun-control groups and some law enforcement associations, such as the Major Cities Chiefs Association, the Police Foundation and the International Association of Chiefs of Police. These groups argue that H.R. 38 would force states to accept weaker concealed carry laws of other states (which may have less stringent training requirements, or no permitting requirement at all).

A Senate counterpart to the House-passed bill, the Constitutional Concealed Carry Reciprocity Act of 2017 (S. 446), has been referred to the Senate Judiciary Committee.

Supreme Court Hears Arguments in Cellphone Data Search-and-Seizure Case

On November 27, the U.S. Supreme Court heard oral arguments in Carpenter v. United States, which concerns the legal standard that law enforcement must meet to obtain cellphone location data covering an extended period of time. The Court has been asked to determine whether federal law enforcement officials investigating a robbery must use a probable cause warrant — rather than just orders issued under the less stringent Stored Communications Act (SCA) — to obtain cellphone location data. Like other Fourth Amendment search-and-seizure cases involving personal data, Carpenter hinges on a tension between two important policy goals: preserving citizens’ personal privacy rights and ensuring that law enforcement has the investigative tools needed to protect citizens from crime.

The petitioner, Timothy Carpenter, is challenging his conviction on the basis that cellphone location records introduced as evidence by prosecutors at his trial were improperly admitted. The cellphone records (which included over 100 days of location data) were inadmissible, Carpenter argues, because he had a reasonable expectation of privacy in the records, and FBI investigators violated his Fourth Amendment rights when they did not secure a probable cause warrant to obtain the records from his cell service provider — instead, they relied on a court order under the SCA, which uses a less stringent legal standard. Under existing case law, the government argues that Carpenter had no reasonable expectation of privacy in the cellphone data, because by using his service provider’s network, he had provided the data voluntarily to his service provider, a third party.

The court’s eventual ruling in Carpenter could have significant implications for investigative techniques involving the collection of communications data from third parties, such as telephone and internet service providers. Some justices, including Justice Sonia Sotomayor, have suggested that changes in the way people use cellphones since earlier cases were decided may justify finding an expectation of privacy in cellphone data, especially data that is collected on a continuous basis and could be easily exploited for surveillance purposes, such as location data.

Federal Legislation – Washington Races to Pass Legislation

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Cameron O’Brien
Legislative Assistant
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.

Federal Legislation – Congress Addresses Opioid Epidemic

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Cameron O’Brien
Legislative Assistant
Steptoe & Johnson LLP

PORAC Submits Testimony to House, Senate Committee Hearings on Opioid Abuse

Congress continues to examine the epidemic of opioid abuse that is plaguing communities across the country. Addressing this crisis is a top priority for PORAC, as recent estimates from the Centers for Disease Control and Prevention show that drug overdose deaths in 2016 most likely exceeded 64,000 — an increase of more than 22% over the 2015 total. According to the state’s Department of Public Health, 1,925 opioid overdose deaths occurred last year in California alone — an average of more than five deaths every single day.

On October 5, the Senate Committee on Health, Education, Labor and Pensions held a hearing titled “Examining the Federal Response to the Opioid Crisis.” Similarly, the House Energy and Commerce Committee conducted a “member day” hearing on the epidemic, during which lawmakers provided testimony on the status of the crisis in their respective districts.

The Senate hearing focused on efforts and programming within the U.S. Department of Health and Human Services to prevent opioid abuse, such as through ensuring safe prescribing practices, thwarting prescription fraud and developing alternative pain management treatments. PORAC was proud to share its perspective on this crisis with the Committee through written testimony, and highlighted the health risks that opioid abuse poses to addicts and to first responders as well.

PORAC explained to lawmakers that law enforcement has been encountering more and more drugs that contain fentanyl, which can be 50 times more potent than heroin. Because of fentanyl’s potency — and because law enforcement must respond to drug overdoses with increasing regularity — it represents an unusual health hazard for police and public safety personnel. The Drug Enforcement Agency (DEA) has warned law enforcement about the dangers of exposure to the substance, trace amounts of which can be deadly when ingested orally, inhaled through the mouth or nose, or absorbed through the skin or eyes. PORAC’s testimony endeavored to inform the committee about this growing threat and encourage its members to support federal efforts to mitigate this risk to law enforcement. 

Additionally, PORAC recommended that policymakers work to seal our borders to prevent the entry of illegal drugs from abroad; enact laws to ensure that opioid pharmaceuticals are being prescribed in a safe manner; fully fund community policing efforts and social services programs; and carefully review and consider the recommendations of the newly formed President’s Commission on Combating Drug Addiction and the Opioid Crisis.

DOJ Announces Funding to Combat Opioid Epidemic, Human Trafficking

The Department of Justice (DOJ) recently announced awards totaling $59 million to help combat the opioid epidemic and another $47 million to fight human trafficking and assist its victims. PORAC has advocated for this critical funding and is encouraged that policymakers recognize its importance.

Opioid Funding: Within the funding for combating opioid abuse, $24 million will be awarded to 50 cities, counties and public health departments to provide financial and technical assistance for the development of comprehensive diversion programs and alternatives to incarceration for those impacted by opioid addiction. Another $3 million has been awarded to the National Institute of Justice for research and evaluation on drugs and crime, with a particular emphasis on heroin, opioids and synthetic drugs.

The DOJ is also working to address opioid abuse through the court system, and has awarded grants totaling more than $22 million to 53 jurisdictions to support the implementation and enhancement of adult drug courts and Veterans Treatment Courts.

A number of entities in California are set to receive funding for enhancing their existing drug and veterans court systems, including the San Francisco Superior Court ($395,348), Solano County Superior Court ($398,342), the Ninth Circuit Court ($399,994), the Monterey County Probation Department ($400,000) and the Orange County Superior Court ($246,465). Additionally, DOJ has awarded $9.5 million to help jurisdictions build effective family drug treatment courts and juvenile drug treatment courts, of which $1.45 million was granted to the Center for Children and Family Futures in Lakewood, California.

Human Trafficking Funding: Within the funding for fighting human trafficking, more than $10 million is slated for comprehensive and specialized services for trafficking victims, including housing programs, economic empowerment services and legal assistance. In California, the Coalition to Abolish Slavery Trafficking (Los Angeles County) will receive $750,000 of this funding; Bay Area Legal Aid (Alameda, Contra Costa, San Mateo and San Francisco counties) will receive $600,000; and North County Lifeline (San Diego) will receive $600,000. Furthermore, the California Governor’s Office of Emergency Services has been awarded nearly $1.5 million to develop strategies to identify and assist child victims of trafficking, while another $1.5 million will go to a joint effort between the Anaheim Police Department and Community Service Programs (Orange County) to implement victim-centered support services.

Congress Passes Pair of PORAC-Supported Bills

In early October, Congress passed a pair of PORAC-supported bills and sent them to President Trump for his signature.

On October 3, the Senate approved by voice vote the House-passed Strengthening State and Local Cyber Crime Fighting Act of 2017 (H.R. 1616). The bill would reauthorize the National Computer Forensics Institute within the U.S. Secret Service, the core functions of which include educating officers on current cyber and electronic crimes, training officers to conduct investigations of such crimes and providing officers with computer equipment necessary to conduct cybercrime investigations.

Also on October 3, the House of Representatives approved by voice vote the Senate-passed Elder Abuse Prevention and Prosecution Act (S. 178). The bill directs the DOJ to provide information, training and technical assistance to help states and local governments investigate, prosecute, prevent and mitigate the impact of elder abuse, exploitation and neglect. It also requires the DOJ to report to Congress on its outreach to state and local law enforcement agencies on the process for collaborating with the federal government to investigate and prosecute interstate and international elder financial exploitation cases.

At the time this issue went to print, both H.R. 1616 and S. 178 were awaiting President Trump’s signature to become law.

Second Annual Coffee With a Cop Day

On October 4, law enforcement agencies across the country participated in the second annual National Coffee with a Cop Day facilitated with the support of the DOJ’s Community Oriented Policing Services (COPS) Office. Coffee with a Cop is a movement designed to help break down the barriers in communities between residents and officers that can make it difficult to properly combat crime and preserve public safety. The premise of these events is simple: Officers invite their fellow community members to join them for a cup of coffee and a conversation.

The first Coffee with a Cop event was organized in 2011 by the Hawthorne (California) Police Department as a way to help officers interact more successfully with the citizens they serve. More than five years and countless events later, over 2,000 U.S. law enforcement agencies now participate in the movement, which has expanded to Canada, Europe and Australia.

Federal Legislation – Championing Public Safety Amid Changes in Washington

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Cameron O’Brien
Legislative Assistant
Steptoe & Johnson LLP

PORAC Advocates for Law Enforcement in D.C.

In late March, more than a dozen PORAC and PORAN members traveled to Washington, D.C., to meet with lawmakers to discuss legislative priorities in the 115th Congress. In total, the group met with more than 30 lawmakers and their staffs, including U.S. Senators Feinstein (D-Calif.), Harris (D-Calif.), Heller (R-Nev.) and Cortez Masto (D-Nev.), as well as House Majority Leader Kevin McCarthy (R-Calif.) and House Minority Leader Nancy Pelosi (D-Calif.). PORAC also met with staff from the House Education and Workforce Committee and the Department of Education’s Office of Safe and Healthy Students.

PORAC expressed its strong support for the preservation of a number of grant programs administered by the Department of Justice (DOJ), including Community Oriented Policing Services grants, Byrne Justice Assistance Grants and High Intensity Drug Trafficking Area grants. PORAC was encouraged by the response from lawmakers, who recognized the value of these programs and expressed commitment to their continued funding. The group also discussed the urgent need for 9-1-1 emergency system reform, explaining how the existing infrastructure has not kept pace with modern technologies and is compromising public safety. Additionally, PORAC outlined its concerns with a House-passed bill that would update the Electronic Communications Privacy Act and suggested changes that the Senate should incorporate when it considers the issue.

It was clear throughout the two days of meetings that lawmakers have come to value PORAC’s input on policy and are very interested in learning about its position on a range of issues.

Trump Takes Action to Combat Opioid Abuse

On March 29, President Trump signed an executive order establishing the President’s Commission on Combating Drug Addiction and the Opioid Crisis. The mission of the initiative is to “study the scope and effectiveness of the federal response to drug addiction and the opioid crisis” and make recommendations for improvement. To lead the commission, President Trump chose New Jersey Governor Chris Christie, who has been working to address the scourge of opioid abuse and heroin use in his state. Attorney General Jeff Sessions will also have a seat on the panel.

The commission is designed to identify and describe existing federal funding used to combat drug addiction and the opioid crisis; assess the availability and accessibility of drug addiction treatment services and overdose reversal throughout the country, and identify underserved areas; report on best practices for addiction prevention, including health-care provider education, evaluation of prescribing practices and effectiveness of state prescription drug monitoring programs; and make recommendations to the president for improving the federal response to drug addiction and the opioid crisis. After 90 days, the commission must submit to President Trump an interim report with its preliminary findings, and a final report must be submitted by October 1.

The commission will receive administrative support from the Office of National Drug Control Policy (ONDCP), which will soon be under new leadership. On April 11, President Trump announced his intent to nominate Representative Tom Marino (R-Penn.) to lead the ONDCP as the next so-called “drug czar.” The third-term congressman is a former federal prosecutor and was one of President Trump’s earliest supporters in Congress during the presidential campaign. Last Congress, Congressman Marino introduced the Transnational Drug Trafficking Act (H.R. 3380) to curb drug trafficking across borders, the Senate version of which (S. 1612, introduced by Senator Dianne Feinstein) was signed into law. He is also opposed to loosening restrictions on marijuana and has advocated for mandatory inpatient substance abuse programs for nonviolent drug offenders.

AG Sessions Signals Shift in Enforcement Priorities

In public remarks and in departmental memos, Attorney General Jeff Sessions has indicated that under his leadership the DOJ will prioritize reducing violent crime, with a particular emphasis on dismantling drug cartels and federally prosecuting firearm offenses.

“We’re making sure the federal government focuses our resources and efforts on this surge in violent crime,” Sessions recently told law enforcement personnel in Virginia, highlighting the recent formation of the DOJ Task Force on Crime Reduction and Public Safety to evaluate and improve existing federal efforts. Sessions noted that reducing violent crime depends on confronting the heroin and opioid crisis — and that combating the scourge of illicit drug use depends on securing the nation’s borders and enforcing immigration law. “Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction and misery,” Sessions said. “Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product.”

Sessions’ stance on enforcing immigration law is much more stringent than his predecessor’s. This is demonstrated not only by his comments above but also by his announcement in mid-April that sanctuary cities (cities that do not permit municipal funds or resources to be used for, or otherwise prohibit local law enforcement’s participation in, the enforcement of federal immigration law) would be ineligible to receive federal funding from the DOJ if they do not change their policies. “Such policies cannot continue. They make our nation less safe by putting dangerous criminals back on the street,” Sessions said, adding that “the DOJ will require jurisdictions seeking or applying for DOJ grants to certify compliance with 1373 [laws requiring local agencies to cooperate with federal immigration enforcement efforts] as a condition of receiving those awards.” It is unclear how the DOJ plans to implement this policy and what exactly the impact would be on the affected jurisdictions.

Supreme Court Update

In recent weeks, the Supreme Court rendered decisions in several cases addressing criminal justice issues, two of which are outlined below.

In a 5–3 decision in Moore v. Texas, the Court held that a state court applied the wrong standards to conclude that a Texas death-row inmate was not intellectually disabled and therefore eligible for execution. Specifically, the Court considered whether the use of outdated medical standards to determine if a person is intellectually disabled and ineligible for execution qualifies as cruel and unusual punishment under the Eighth Amendment. In this case, Moore was sentenced to death in 1980, but he argued that he was exempt from execution because he was intellectually disabled. The Texas Court of Criminal Appeals rejected Moore’s challenge, relying on a set of 1992 standards for evaluating intellectual disability. The Court concluded that the lower court’s reasoning was flawed in many respects, including that it 1) focused too heavily on Moore’s IQ score, 2) did not consider current clinical standards and 3) relied on factors founded in neither medicine nor law. Chief Justice Roberts — along with Justices Samuel Alito and Clarence Thomas — dissented.

In a 6–2 decision in Manuel v. City of Joilet, the Court analyzed whether Fourth Amendment protections applied to a post-arrest seven-week detention, which allegedly was imposed without probable cause and based on false evidence. Justice Kagan, writing for five other members of the court, concluded that an unlawful “pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case.” This conclusion — that the Fourth Amendment governs a claim of unlawful pretrial detention — was the same conclusion reached by 10 other federal appellate courts. Justices Samuel Alito and Clarence Thomas both agreed with the narrow holding of the case — i.e., that “the protection provided by the Fourth Amendment continues to apply ‘after the start of the legal process.’” They disagreed, however, with the suggestion that “new Fourth Amendment claims continue to accrue as long as pretrial detention lasts.”