2008 - 2009 Policies for the Jurisdiction of the:
Law and Criminal Justice Committee
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Law and Criminal Justice Standing Committee
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The National Conference of State Legislatures (NCSL) agrees with the overall purpose of the Adam Walsh Child Protection and Safety Act of 2006, P.L. 109-248, to protect the public, particularly children, from violent sex offenders. States have recognized the need to deter sex offenders, provide law enforcement with means for identifying and tracking locations of sex offenders and increase public protection from dangerous offenders with laws that require released sex offenders to register with law enforcement or other state agencies. Each state has sex offender registration laws, and, since inception of these laws many states have expanded requirements to include more categories of offenders, extended the duration of registration for the most serious offenders, added requirements for updating and verifying registry information, and established penalties for non-compliance.
NCSL objects to the Adam Walsh Act's one-size-fits all approach to classifying, registering and, in some circumstances, sentencing sex offenders. These provisions preempt many state laws and create an unfunded mandate for states because there are no appropriations in the Act or in any appropriations bill. Many of the provisions of the Adam Walsh Act were crafted without state input or consideration of current state practices. The mandates imposed by the Adam Walsh Act are inflexible and, in some instances, not able to be implemented.
NCSL urges Congress, in partnership with the States, to amend the Adam Walsh Act as follows:
- Delay the implementation date of the Act until three years from the date final registration guidelines have been issued so that states know with what they are to comply.
- Reinstitute the incentive grant provisions of the Act to permit states to submit application for determination of compliance.
- Clarify that the Adam Walsh Act is applicable only to currently registered sex offenders or qualifying offenders who are in corrections custody in the states and not to those who, under state law, have fulfilled their registration requirement. This serves to respect state sovereignty for very fundamental aspects of state sex offender registration law.
- Permit states to classify sex offenders according to their current state laws. The imposition of federally-defined tier classifications are confusing when compared to state crime classes and definitions, and therefore are overly-burdensome for states.
- Permit states to penalize sex offenders according to their current state laws, including penalties for failure to register as required.
- Incorporate flexibility in the implementation of the registration and publication requirements so as not to run afoul of any state’s constitution or statutory provisions. Every state has means by which registration information is publicly accessible, in accordance with state law.
- Remove responsibility placed on states to interpret foreign convictions and place this responsibility with federal law enforcement where it properly belongs.
- Allow states to define which juvenile offenders meet criteria for sex offender registration. States must preserve authority for which juvenile offenders are treated like adults, under what circumstances and for how long.
- Recognize that states assuming the responsibility of tribal registries under the act may face increased compliance difficulties. Permit additional compliance time for states in that circumstance.
- Provide that technological record-keeping requirements be contingent upon appropriations of sufficient funding to states to implement these changes.
- Incorporate language establishing a stakeholder advisory board of state and local national associations, like NCSL, to provide guidance and counsel to the Office of Justice Programs SMART office that is responsible for regulations and compliance under the Adam Walsh Act.
Campaign Finance Reform
NCSL supports campaign finance laws at the state level. All candidates for state office are subject to state campaign finance and public disclosure laws. NCSL opposes efforts to federalize state and local campaign finance regulations. NCSL opposes all efforts to bring state legislators under the regulations of the Federal Election Commission (FEC). NCSL takes no position on campaign finance reform for federal candidates. NCSL supports the Supreme Court's holding in Buckley v. Valeo, that any limit on spending money to publish ads or brochures would necessarily bar speech, but that limitations on the amount of an individual's cash contribution for purposes of the express advocacy for the election or defeat of a candidate are constitutional.
NCSL's support for federal campaign finance reform efforts is conditioned on such reforms not preempting state laws regulating candidates running for state office. NCSL opposes federal campaign finance reform legislation which would inhibit a state political party's ability to increase voter turnout at the polls and to conduct "get out the vote activities" by imposing funding limits on the implementation of such activities.
(Joint with the Law and Criminal Justice Committee)
The National Conference of State Legislatures (NCSL) expresses deep concern over the failure of personal responsibility that has caused many of our nation's children to live increasingly in poverty and economic uncertainty. A stable household with adequate financial resources to provide for basic needs of children should be the goal of every parent. The role of government should be to encourage individual parental responsibility in meeting that goal and to assist in providing support for children whose parents are unable to do so.
NCSL believes that enforcing parental support obligations is an integral part of a comprehensive income security program for our nation's families. The federal child support enforcement program, authorized under Title IV-D of the Social Security Act and the Family Support Act of 1988, was established to enforce support obligations owed by non-custodial parents to their children by: (1) establishing paternity; (2) locating non-custodial parents; and (3) obtaining support payments. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) made further significant changes to improve child support collections, especially interstate child support enforcement. However, some provisions of PRWORA preempt state authority and remain very troubling to state legislators.
NCSL believes states and the federal government should ensure that child support is fair, equitable, and timely. In reviewing the current system, NCSL concludes that child support enforcement can be enhanced through better coordination of purpose at the state and federal level, through a renewed commitment to interstate cooperation, and through the application of intellectual and financial resources to attack the problem with creativity, innovation, flexibility, and strength.
NCSL supports improved coordination of all programs and organizations working on child support enforcement, including but not limited to: state policy makers, state courts, local and state bar associations, district and state attorneys, local and state child support directors, local law enforcement officials, family and child support advocacy groups, tribes, and programs that work with both parents.
NCSL believes that the federal child support audit process would be improved by focusing on performance outcomes rather than administrative procedures and processes. A revision of the process, including the restoration of funds withheld, would allow for more innovation and adaptability to individual state needs, while still providing oversight. NCSL also urges the federal government to allow states to reinvest their child support penalties in the child support system as a more effective way for states to come into compliance. Similar penalty reinvestment practices are followed in other human services programs. State investments in technology-related expenditures, which are necessary in order to come into compliance with federal requirements, should be taken into account in the penalty process.
Program and System Improvements
The increasing effectiveness of state child support enforcement programs performs an important service for children. Federal financial participation has created the base for these effective and increasingly successful programs. However, as more families leave welfare and go into the workforce, the program no longer provides the financial return to the state and federal government. The states and federal government need to re-examine the financing of this program.
NCSL urges the federal government to continue to support technical assistance to the states with respect to exemplary practices, procedures, and legislation that has been effectively implemented.
States have responded quickly and forcefully to the federal mandates contained in P.L. 104-193, The Personal Responsibility and Work Opportunity Reconciliation Act of 1996. New child support initiatives from the federal government should allow maximum flexibility among states, reward new initiatives and encourage state experimentation and innovation.
Several of the mandates of PRWORA are especially problematic for state legislators. States were given insufficient time in a single legislative session to pass numerous changes in state law. These mandates preempt state laws, violate state and federal constitutional provisions and raise concerns about violations of the 10th Amendment.
State efforts to facilitate custodial parents' timely receipt of child support and to increase collections should be the most important factor in determining compliance with the child support provisions of PRWORA; federal efforts should be responsive to each state's unique populations. NCSL is pleased with the progress OCSE has made in focusing on program outcomes and assistance to states to maximize the effectiveness of state child support systems and collections. NCSL encourages OCSE to regularly communicate with state legislators, particularly through the regional offices and relevant action transmittals.
NCSL believes that an increased federal commitment is critical to the success of the child support enforcement program. Federal assistance should be directed to improving and supplementing state programs and should be provided with sufficient flexibility to minimize interference with state improvements.
NCSL supports an incentive approach for a permanent enhanced federal administrative match for states that implement a minimum package of innovative procedures to increase program effectiveness.
NCSL realizes states need to make significant improvements in the number and timeliness of paternity establishments, as this is the cornerstone to an effective child support enforcement program. Currently, states are rewarded for improving paternity establishment. Federal funds should accompany federal paternity mandates.
NCSL supports proposals that would put states on a phased-in schedule of improvement that would use current year levels of paternity establishments as the base and would require a reasonable schedule for improvement.
NCSL recommends that if any additional mandatory program requirements are adopted as amendments to the existing Child Support Enforcement program, Congress should provide for: (1) a reasonable transition period; (2) waivers to permit states to address state specific problems with program requirements; and (3) flexibility for states to implement innovative alternatives that still meet the goals of the program.
NCSL is concerned about the costs of the requirement of immediate income withholding from non-IV-D cases. NCSL believes that the federal government should fund a reasonable share of the administrative, enforcement and data collection costs for these cases. Any targets for paternity establishment should be reasonable and attainable.
NCSL supports the federal parent locator service but opposes a mandate that would charge states for the use of the service.
Nutrition Assistance and Child Support Enforcement
NCSL fully supports the rights of all children to be financially supported by both parents and the enforcement of parental support obligations owed by non-custodial parents to their children. The 1996 welfare reform law created a state option to withhold food stamps from custodial parents who do not cooperate and non-custodial parents who are delinquent in child support payments. However, NCSL is concerned about underfunded and burdensome mandates to states and does not support federal proposals to mandate child support enforcement cooperation as a condition of eligibility in the food stamp program.
Payment of Child Support in the TANF Program/Child Support Passthrough
NCSL supports the option for states to use a disregard as a minimum financial incentive for recipients of Temporary Assistance to Needy Families (TANF) to participate in the child support program and believes that states need flexibility to use disregards innovatively. NCSL also supports allowing states to permit families to keep more of the money collected on their behalf whether on or off public assistance. However, NCSL insists that the federal government share in the cost of this forgone revenue. NCSL opposes a federal mandate to pass through child support as a cost-shift to states. Additionally, NCSL supports more efficient outreach efforts to include a greater number of recipients receiving child support enforcement assistance. State innovations in this area are important to children and families, particularly those transitioning from welfare to work and ultimate self-sufficiency. States must have the flexibility necessary to continue these innovations to meet the need of children and families in each state. NCSL applauds Congress for including new passthrough and distribution options in the Deficit Reduction Act of 2005.
Historically, states have taken the lead in issues pertaining to family law. State legislators support innovative programs that reach more absent parents, especially young fathers. However, the issues of custody and visitation are under the purview of the states and NCSL would strongly oppose any effort to preempt state laws in this area. If the federal government establishes block grants to states to examine ways to involve noncustodial parents in the lives of their children, state legislatures must have the authority to appropriate these funds, as in the Brown amendment (Section 901) to PRWORA. (The NCSL policy on Nurturing Responsible Families further details NCSL positions on fatherhood, child support distribution, and family formation.) NCSL urges OCSE to encourage flexibility and creativity in addressing arrearages. NCSL also urges that OCSE continue to work with policymakers to clarify the usage of current policy regarding arrearages. While states cannot retroactively modify awards, it is possible for states to forgive arrearages for those noncustodial parents who are working to meet current obligations but are genuinely unable to pay arrearages.
Child Support Assurance
Child Support Assurance provides a guaranteed level of child support payment. NCSL supports maintaining the option of states to develop pilot programs for the assurance concept that can be rigorously analyzed and evaluated.
Appropriate Federal and State Roles
Federal efforts should first be directed to helping states do a better job. The federal commitment to child support enforcement has been to elevate and strengthen the federal Office of Child Support Enforcement so that it will be a more effective partner with the states. This should include attempts to improve cooperation between IV-D agencies, state revenue agencies, and the state and local courts. Federal dollars should be used to create incentives to develop innovations, to replicate successes, and to provide improved training. Incentives should be structured in a manner that is supportive of and not coercive to states. State and local courts should retain power and discretion over establishing and modifying child support orders. The federal government should not create criminal sanctions.
Several proposals to improve the child support system begin with a premise that centralizing the system should be the driving force for change. Federalization of the child support system, however, would disrupt state efforts to integrate family support services and further diminish the sense of community that is required for government to be responsive to the needs of its citizens. NCSL rejects the assumption that transferring the program to the federal government and funding, creating, and training a new bureaucracy at the national level will offer immediate improvement. Instead, NCSL supports sorting of responsibilities in a reasonable and rational fashion. Federal responsibilities should be expanded only where compelling reason to do so exists. Any other actions should be considered violations of the 10th amendment.
NCSL concurs with the conclusion of the U.S. Commission on Interstate Child Support that transferring responsibility to the federal government will not improve the system. Federalization raises problems for an uninitiated and overworked federal court system and poses great risk because of the absence of a national system or model. Proposals to use existing mechanisms within the Social Security System and the Internal Revenue Service, while intriguing, must be rigorously tested and evaluated before exposing the entire system to enormous cost and risk. Overlapping responsibilities would create new disorder with federal administrative law judges interfering with settled state authority in family law.
Child Support Incentive Program
The National Conference of State Legislatures (NCSL) strongly supports the current incentive system for child support enforcement. The current incentive system must reward
s performance and recognize s our changing caseloads. As states succeed in their welfare reform efforts, the child support caseload is changing from mostly welfare recipients to include more working families. Most states easily reached the maximum incentive for non-welfare cases and the system should be revised and updated.
NCSL strongly supports federal legislation to remove the provision in the Deficit Reduction Act of 2005that prohibited states from using child support incentive funds to match federal funds for the program. This action, reversing existing law encouraging states to use funds in this manner, was identified by the Congressional Budget Office as an intergovernmental mandate that exceeded the threshold of the Unfunded Mandate Reform Act. The federal funds states matched with incentive funds were used for integral parts of the child support enforcement program, such as establishing and enforcing child support obligations, obtaining health care coverage for children, and linking low-income fathers to job programs. Reduction of child support funding inevitably leads to lower child support collections, leaving families less able to achieve self-sufficiency. States are put in the unenviable position of reducing services or finding state funds to make up for this federal cost-shift.
Concerns about the incentive system have been a long-standing component of NCSL policy. NCSL continues to believe that the increasing effectiveness of state child support programs provides a financial return to both states and the federal government, while performing an important service for children and families. Federal financial participation has created the base for these effective and increasingly successful programs.
The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 required the Department of Health and Human Services to report to Congress with suggested revisions to the current incentive system. In response to the Administration's proposal and pending Congressional action, state legislators:
- Support a base matching rate of no less than 66 percent. This is critical in light of the extensive federal mandates in the welfare law;
- Support enhanced funding for automated data systems required by federal law;
- Support the development of clear, understandable criteria for a new incentive system;
- Believe that these criteria should be based on performance outcomes rather than administrative procedures and processes;
- Oppose efforts to require that incentives received by the state be reinvested in the child support program. This ignores state priorities and preempts state authority over these funds, and
- Support a more flexible approach to reinvestment. NCSL supports state flexibility to reinvest in programs that serve children and families.
Medical Child Support Enforcement
The federal government regulates health insurance covered by self-insured companies under the federal Employee Retirement Income Security Act of 1974 (ERISA); state laws do not apply to these companies. NCSL continues to urge Congress to close a loophole in ERISA that allows self-insured companies to refuse to acknowledge state medical child support orders and effectively block access to medical child support for thousands of children. As ERISA companies refuse to acknowledge transferred orders, states must return to court and get a new order if a noncustodial parent changes jobs. ERISA companies also set highly individualized criteria which, absent a standardized medical support notice, are barriers to the Congressional goal of a uniform and efficient enforcement system. A change in ERISA is needed so that these companies will comply with state medical child support orders and children of the fathers employed by these companies will no longer remain on Medicaid.
To effectively manage welfare costs, states must have access to the necessary tools. Absent a change in ERISA clarifying that there is no preemption of state laws and procedures for medical child support, state medical costs will continue to rise. Particularly given the rigid child support mandates of PRWORA, the federal government should take efforts to remedy these problems in ERISA so that states can effectively manage costs and insure that children of noncustodial parents working for ERISA companies have adequate health insurance. NCSL also urges OCSE to continue to discuss the linkages between medical child support and the use of the Children's Health Insurance Program (CHIP).
A number of recent changes have strengthened medical child support enforcement and removed some of the impediments to providing children with health care coverage. For example, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) included a provision for health care coverage in all child support orders and directed the child support enforcement agency to notify an employer of the noncustodial parent's medical child support coverage. However, ensuring that children get the health care coverage that they need remains complicated. The Medical Child Support Working Group, created as part of the Child Support Performance and Incentive Act of 1998, brought together the stakeholders in this issue to address topics including the National Medical Support Notice, coordination of medical child support with CHIP, and evaluating the standard for "reasonable cost" in federal law and issued a final rule on the National Medical Support Notice (NMSM) in January of 2001. We urge the federal government to continue such collaborative efforts and to consider the cost to states of any policy changes. Continuing discussion is especially needed regarding state flexibility to determine the “reasonable cost” of insurance. The current federal definition is very problematic because of changes in insurance coverage available through employers.
The child support enforcement system relies on accurate, working information systems. Unfortunately, implementation of these computer systems has been difficult and fraught with problems and delays. States made good faith efforts to meet the October 1, 1997 certification deadline for implementing statewide child support information systems. Unfortunately, some states did not meet this deadline on which the national system is based. Similarly, many states are concerned that they will have difficulty with the deadlines for systems improvements in the welfare law. NCSL encourages Congress to convene state elected officials, welfare commissioners, vendors and the U.S. Department of Health and Human Services to review child support automation services and to develop realistic recommendations for the next phase of implementation. NCSL supports efforts to allow for corrective action plans for states in the disallowance process.
Continuity of Congress and Special Elections
NCSL acknowledges the possibility that a catastrophic national emergency may render the U.S. House of Representatives unable to conduct the business of the country due to the death or permanent incapacitation of more than 100 of its members. In order to keep the national government going during such a crisis, Congress has begun to examine various means of filling vacancies in the U.S. House of Representatives through a uniform special elections process containing federal mandates for the timing of such elections. Special elections have traditionally been a state responsibility that does not merit federal intervention.
Given that all states have a special elections process in place that is procedurally best for that state, NCSL would support federal legislation that would allow for state flexibility with respect to the timing of and other rules governing special elections, and would oppose federal legislation that sought to preempt state laws governing special elections.
Federalism and Criminal Justice
States and local governments have the predominant burden of ensuring public safety through the criminal justice system, and the juvenile justice systems. The national government should refrain from making federal crimes of state offenses or from enhancing sentences for crimes that are more properly the domain of states. Federal jurisdiction must be justified by significant improvements in interstate law enforcement or protection of federal constitutional rights. A mere showing that the Constitution may allow federal jurisdiction is not sufficient basis for expansion. Nationalizing broad areas of crime policy has the same effect as preemption by deterring innovation, diminishing community responsibility, and reducing accountability. Congress should rely on the Assimilation of Crimes Act, rather than creating a federal criminal code that parallels state laws. The federal government should work with states to examine ways that conflicts in jurisdiction can be avoided.
Federal leadership should not surrender to the temptation to substitute national laws for state and local judgments NCSL opposes proposals that blur the lines of governmental responsibility by removing from states and communities the right to determine disciplinary procedures for state and local law enforcement. New ways of enhancing cooperation between state and federal law enforcement and prosecution of crime should be explored. Conversely, NCSL also opposes shifting traditional federal responsibilities, such as civil immigration enforcement, to state and local law enforcement personnel.
NCSL supports the goals of the Juvenile Justice and Delinquency Prevention Act. Rural areas can have difficulty in meeting broad mandates, so the federal government should provide state flexibility to develop alternatives that will achieve the underlying goal of improving the condition of juveniles in confinement. Federal programs that create incentives for innovations in state juvenile justice services should be funded. Such programs such as the Juvenile Accountability Incentive Block Grants should support research, training, and program funding to address the needs of juvenile offenders. NCSL also supports the role of the federal government in providing states with the financial resources to strengthen state juvenile justice systems. This includes federal funding for mental health and drug courts. Federal involvement in this effort however, should be confined to providing grants and technical assistance to states on a voluntary basis to fund state practices for the treatment of juvenile offenders in the justice system. The federal government should not attach mandates to the receipt of such federal funds, but should encourage the states to implement innovative techniques for dealing with juvenile justice matters.
Federal jurisdiction over crimes also covered under state law can create a competition to escalate punishments and build more prisons; this competition is shortsighted and expensive. Federal mandatory minimum sentences attest to the desire for certainty in punishment; however, state and federal corrections expenditures. NCSL supports the reinstatement of federal grant programs such as the Violent Offender Incarceration /Truth-In-Sentencing (VOI/TIS) grant program which was established to encourage the incarceration of violent offenders for longer periods of time and to facilitate state and local governments' efforts to ensure sufficient facility space to accommodate the corresponding growth in the offender population. If this program is reinstated, NCSL supports increasing the flexibility of the VOI/TIS program by giving states the opportunity to use this funding for problem areas encountered within the prison system such as drug abuse, disease, and mental illness. States should be permitted to implement mandatory minimum sentences, but the federal government should refrain from expanding mandated sentencing where offenses are covered under state law. NCSL opposes federal laws that impose additional penalties for criminal activities covered under existing state law. If federal funds are available, state and local governments should be allowed maximum flexibility in using those funds within their criminal justice systems. NCSL opposes any legislation that would restrict the ability of each state to determine the most effective manner in which to utilize whatever federal funds are made available for corrections. NCSL strongly opposes federal legislation that restricts state flexibility in sentencing or corrections policy.
Correctional industry manufacturing and service operations offer a wide range of proven benefits to state and local governments. By productively occupying a portion of the prison population, correctional industries reduce inmate idleness and contribute to safe and secure prisons. Efficiently operated correctional industry programs produce lower cost goods and services for state and local governments, saving taxpayer dollars. Some industry programs produce revenue for state budgets through deductions from the wages of working inmates, particularly when inmates are employed by private-sector businesses in industries that operate either behind prison walls or in the community.
The Congressionally enacted Prison Industry Enhancement Certification Program (PIECP) encourages state and local governments to establish PIECP programs and correctional industries. PIECP differs from traditional correctional industries by exempting those approved operations from the normal restrictions on sale of prisoner-made goods in interstate commerce and to the federal government. Federal law imposes comparable wage and benefit and prevailing wage requirements on PIECP programs. State law or regulatory practice may further address non-displacement of workers and protect against unfair competition. Also, federal law allows for certain deductions from PIECP inmate wages for room and board, taxes, family and dependent support, and crime victim compensation.
NCSL supports federal law that provides for sufficient state flexibility to implement and manage correctional industries, and to use state law or regulation to address state and local issues relative to PIECP programs and correctional industries.
NCSL opposes federal legislation that would impose further, unnecessary restrictions on state-operated correctional industries; or legislation that would give federal prison industries preferential treatment in PIECP programs or permit direct competition with states that would exempt federal prison industries from prevailing wage or other requirements placed on participating states.
Federal expenditures to attack drug abuse are directed at interdiction, law enforcement, prevention, education and treatment. The federal government should concentrate on the eradication of illicit drugs in source countries through diplomacy; it should improve interdiction efforts; it should attack interstate drug trafficking. Although money for law enforcement is critical, whatever federal dollars may be appropriated must also be devoted to prevention and treatment. Many states and localities agree on the value of adopting drug testing as a condition of parole or probation. The federal government should not preempt these laws, and it should not mandate such testing on the states.
Federal Financial Assistance
Federal funds for justice should reflect the need for maintaining balance in the system. NCSL urges that justice system impact statements accompany any proposed legislation or executive orders that will affect the system. Funding should be directed to states rather than pass directly to local governments. Intergovernmental cooperation should be improved, particularly in information and intelligence. NCSL supports a strong federal role in research, funding demonstration programs, disseminating information, providing technical assistance and training. The federal government should provide leadership and funding that assists states, without attached mandates, in building strong communities, preventing violence against women, preventing and responding to youth violence, including school violence, updating correctional facilities, encouraging innovation in corrections, including community corrections and programs for prisoner reentry, breaking the cycle of drug use and crime, assisting crime victims, supporting law enforcement and enhancing public safety, countering terrorism and ensuring domestic preparedness, enhancing use of technology in addressing crime, and fostering productive legislative-judicial relations.
Crime Records and Information
Dissemination of criminal record information for criminal justice purposes helps protect the public by informing decision-makers about offenders. Increasingly, public and private noncriminal justice entities seek access to criminal record information for employment, licensing, and related public safety and national security purposes. NCSL supports use of the federal-interstate computer network known as the Interstate Identification Index (III) which ties state criminal record databases and the Federal Bureau of Investigation. Such tools provide means to conduct national searches of criminal records and facilitate information sharing under interstate compacts such as the National Crime Prevention and Privacy Compact, the Interstate Compact for Adult Offender Supervision, and the Interstate Compact for Juveniles. NCSL supports such state-federal information systems and sharing partnerships in the states where they have been adopted for purposes of crime control and counter-terrorism. NCSL maintains that records available via such systems should continue to be predominately state-maintained and state policies for dissemination of those records should be recognized by and adhered to under the systems. NCSL supports federal assistance in improving state criminal history records and records systems, including the National Criminal History Improvement Program. NCSL opposes any unfunded federal mandates related to criminal history record keeping. This includes prescriptive policies on sex offender registration information tied to federal law enforcement assistance funds. NCSL supports federal non-preemptive initiatives that utilize DNA records in crime-solving and the administration of justice, including the Combined DNA Index System (CODIS). Federal funds, including those for DNA analysis backlog elimination, should support the use of DNA as an interstate investigative tool while adhering to state law and placing no new requirement on states regarding collection, dissemination or use of records.
NCSL acknowledges that a national debate on election reform continues and that any Congressionally mandated changes in election processes necessarily will impact state and local elections. The NCSL Task Force recognizes that state law controls the processes and the administration of matters pertaining to federal, state, and local elections. It logically follows that NCSL, as the national voice of the various state legislatures, should be at the center of this national debate.
NCSL believes that it must be an equal partner with Congress or within any federal commission or task force designed for the purpose of implementing and drafting federal laws and policies because this effort must be a partnership among federal, state, and local officials. In this respect, NCSL believes that federal legislation that affects the states should be drafted with substantial input from those who would be responsible for its implementationIn this respect, Federal legislation should not curtail state innovation and NCSL believes that federal legislation should include reasonable timeframes for implementing state and local programs.
NCSL acknowledges that public confidence in the election process is important to state legislators. NCSL recognizes that states will need federal funding to assist in the implementation of new and innovative election reform procedures. NCSL also believes that such funding should be based on broad principles, not upon specific mandates which would lead to a "one size fits all" approach to elections. Members of Congress should respect state sovereignty and avoid preemptions of state authority and local jurisdiction when creating mandates.Therefore, NCSL supports a federal grant formula which awards money to states for broad-based purposes dealing with election reform, and opposes any funding mechanism, which seeks to mandate specific requirements on the states.
NCSL supports federal formula grant funding to states for the following broad purposes:
- Improving election technology, systems and ballot design;
- Facilitating voter registration, verification and maintenance of voter rolls;
- Improving the accuracy and security of election procedures and vote counts;
- Educating citizens on representative democracy and election processes and systems;
- Providing greater access to voter registration and polling places especially for rural and disabled voters; and
- Providing training and education opportunities for elections personnel.
NCSL encourages Congress to consider whether states should be given greater latitude under the National Voter Registration Act (NVRA) to remove ineligible voters from voter rolls.
NCSL supports increased funding for the Election Assistance Commission (EAC) for the development of voluntary equipment standards and the dissemination of election-related statistics and information provided such funding does not take away from Title II funding under HAVA.
Our American federalism creatively Unites States with unique cultural, political, and social diversity into a strong nation. The Tenth Amendment is the cornerstone of constitutional federalism and reserves broad powers to the states and to the people. Federalism protects liberty, enhances accountability and fosters innovation with less risk to the nation. NCSL strongly urges federal lawmakers to maintain a federalism that respects diversity without causing division and that fosters unity without enshrining uniformity.
Individual liberties can be protected by dividing power between levels of government. "The Constitution does not protect the sovereignty of states for the benefit of the States or state governments as abstract political entities, or even for the benefit of public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals." New York v. United States, (1992). When one level becomes deficient or engages in excesses, the other level of government serves as a channel for renewed expressions of self-government. This careful balance enhances the express protections of civil liberties within the Constitution.
By retaining power to govern, states can more confidently innovate in response to changing social needs. As Justice Brandeis wrote: "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, (1932). It is a suitable role for the federal government to encourage innovation by states. The federal officials should recognize that failure is a risk associated with experimentation and permit states room to act and evaluate without judging prematurely the value of innovative programs. States are inherently capable of moving more quickly than the federal Congress to correct errors observed in policy and can be more sensitive to public needs.
The Supreme Court has sent a strong message to Congress that its powers under the Commerce Clause have boundaries. In United States v. Lopez, (1995), the Court properly strengthened the hand of states in negotiating the balance of powers. Congress shall heed the wisdom of Lopez and not exercise its commerce powers without a compelling need to do so. Similarly, the Supreme Court should add to the ability of states to respond to pressing social and economic problems by interpreting the dormant Commerce Clause in a restrained manner sensitive to the powers of states in the federal system.
Responsiveness to constituencies within state boundaries is diminished as the power of the federal government grows disproportionately. Disturbingly, federal constraints upon state action grow even as states are increasingly acknowledged as innovators in public policy. To revitalize federalism, the three branches of the national government should carefully examine and refrain from enacting proposals that would limit the ability of state legislatures to exercise discretion over basic and traditional functions of state government.
NCSL dedicates itself to restoring balance to federalism through changes in the political process and through thoughtful consideration and broad national debate of proposals to amend the Constitution or to clarify federal laws that are specifically intended to redress the erosion of state powers under the Constitution. NCSL does not by this policy endorse any specific proposal for or against constitutional change or call for a constitutional convention.
Congress must allow states flexibility to shape public policy. Creative solutions to public problems can be achieved more readily when state laws are accorded due respect. State legislators believe that state laws should never be preempted without substantial justification. Inordinate reliance upon the central government is not the solution to the nation's problems. Uniformity for uniformity's sake does not justify preemption. A federal system contemplates diversity among states. Our federalism anticipates diversity; our unity does not anticipate uniformity. By definition, every preemptive law diminishes other expressions of self-government and should be approved only where compelling need and broad consensus exist. While proponents of preemption may claim expected benefits, these must be balanced against the potential loss of accountability, innovation and responsiveness.
Preemption may be warranted in specific instances when it is clearly based upon provisions of the U.S. Constitution authorizing such preemption and only when it is clearly shown (1) that the exercise of authority in a particular area by individual states has resulted in widespread and serious conflicts imposing a severe burden on national economic activity or other national goals; (2) that solving the problem is not merely desirable, but necessary to achieve a compelling national objective; and (3) that preemption of state laws is the only reasonable means of correcting the problem.
The authority of Congress under the Supremacy Clause to preempt state legislation is exercised by the federal government assuming responsibility for regulating under federal law. In addition, the Supremacy Clause allows the federal government to offer states the option of regulating pursuant to federal standards. The power of Congress to thus preempt state authority must not be expanded to permit the federal government to commandeer states to administer federal programs.
Congress shall provide reasonable notice to state legislative leaders and governors of any congressional intent to preempt and shall provide them with opportunity for formal and informal comment prior to enactment. To ensure that the national legislature knows the effect of its decisions on other levels of government, members of Congress shall investigate which of their state's laws would be preempted by federal legislation before they vote on the preemptive legislation. Congress shall develop processes to understand better the impact of proposed bills on federalism. Congress shall refer bills that affect state powers and administration to intergovernmental subcommittees.
States should not be undercut through the regulatory process. It is not acceptable for un-elected federal agency officials to exercise legislative authority in the guise of regulation and to preempt the decisions of the elected legislatures of the sovereign states. Any agency intending to preempt state laws and rules shall have the express authority or clear evidence from Congress of the intent to preempt. The Executive Order on Federalism (E.O. 13132) provides guidance for agency examination of intergovernmental impact and should be codified and enforced. Circumvention of rule-making procedures through interim final rule-making and the like, should be prohibited. An appropriate congressional committee shall review agency regulations to identify unjustified intrusions into state sovereignty.
Grant Conditions and Mandates
When national policy-makers ignore the fiscal impact of proposals that are to be implemented at the state level, citizens have difficulty discerning which level of government to hold accountable for making critical choices between increasing taxes or eliminating other state programs in order to implement a mandated national agenda. Such distortion can frustrate voters and decrease citizen participation. Reform is needed in order to hold the federal government accountable for making policy decisions that ultimately affect the level of services provided by the states or the level at which states are compelled to tax their citizens. States must retain the predominant role in shaping policies for which they will allocate the predominant share of resources.
Among the distortions caused by the excessive power of the national government is the separation of decisions to tax from decisions to spend. The intractable federal debt makes federal spending decisions more difficult and increases reliance on mandates or grant conditions to accomplish goals set by Congress. The federal temptation to mandate shall be tempered by requiring full federal appropriations before application of penalties to states contained in authorized programs. Where statutes are not clear, regulatory guidance must be established before states become subject to penalties. Federal resources shall be adequate to offer meaningful encouragement to state efforts and, at a minimum, to provide technical assistance and oversight.
The power of the national government to spend for the general welfare is not an unlimited right to regulate state action. In New York v. United States, the Court relied upon the Tenth Amendment to void a mandate upon the states. To the Court, a vital federalism was essential to accountable government. "Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not preempted by federal regulation."
In New York v. United States, the Supreme Court outlined guidelines appropriate for limiting regulation under the Spending Clause. Conditions should be unambiguous and should be reasonably related to the purpose of the expenditure. Because the test of "reasonable relation" may not serve as an adequate brake on Congress, the law should prohibit conditions on grants made to the states beyond such conditions that are necessary to specify the purpose of the expenditure, except where the conditions, such as those relating to civil and individual rights, may fulfill powers expressly delegated to Congress by the Constitution. Existing grants should not automatically become subject to new conditions.
Federal grants to states can achieve national goals without disrupting state laws and procedures. Therefore, federal legislation shall respect the role of the legislature and not create an unnecessary preference for state executive decision-making. Funds received by a state under provisions of federal law shall be subject to appropriation by the state legislature, consistent with the terms and conditions required under such federal law. Legislatures shall also retain authority to designate implementing agencies and to review state plans and applications for assistance. State court systems shall not be commandeered to implement federal policies; in the event federal actions will result in an increased burden on state courts, then the federal government shall also provide funds to implement action by the courts.
Congress shall not place responsibility for administrative oversight of grant conditions in the federal courts by relying on beneficiaries to enforce federal grant requirements through lawsuits. In the event the courts are to be relied upon for enforcement, then the federal government shall waive its sovereign immunity and become subject to suit for failures in administration of programs. This policy does not relate to access to federal courts for enforcement of constitutional rights.
In Seminole Tribe of Florida v. Florida (1996), and its progeny, including Alden v. Maine (1999), Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999), College Savings Bank v. Florida Prepaid Postsecondary Education Expense Bd (1999), and Kimel v Florida Bd. Of Regents (2000) the Supreme Court strengthened the concept of federalism by recognizing a major limitation on Congress' Article I Commerce Clause power and its power under Section 5 of the 14th Amendment as applied to the States. In so doing, the Court confirmed that the Eleventh Amendment to the Constitution is a protection of state sovereignty that is purposeful in our federal design. In Seminole Tribe, the Court held that Congress lacks power under Article I to abrogate the States' sovereign immunity from suits commenced or prosecuted in the federal courts. This ruling was extended in Alden v. Maine where the Court held that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject non-consenting States to private suits for damages in state courts. The Court in Alden also recognized that sovereign immunity does not derive from the 11th Amendment, but from the structure of the original Constitution itself. The states have been recognized as sovereign entities even before the ratification of the U.S. Constitution. The Kimel case further refined Congressional power to abrogate state sovereignty by holding that the 11th Amendment bars suits by private citizens in federal court under the Americans with Disabilities Act against non-consenting states.
The Court further constrained Congress' ability to abrogate state sovereign immunity under Section 5 of the 14th Amendment to the Constitution in Florida Prepaid. The Court held that Congress' powers under § 5 of the 14th Amendment are powers of enforcement only, and that these enforcement powers are remedial. This means that in order for sovereign immunity of a state to be waived under Section 5, Congress must be able to identify a pervasive pattern of wrongdoing under the 14th Amendment, and the federal legislation seeking to remedy the wrongdoing, must be narrowly tailored to do so. In other words, the punishment must fit the crime.
If Congress intends to abrogate state sovereign immunity it must state its intent in unmistakably clear language, and the federal government should waive its own immunity in order to enhance legislative consideration of the risks. Normally, equitable and injunctive remedies are sufficient safeguards for ensuring compliance with the law.
Federal expansion of criminal jurisdiction, while not specifically preempting state laws, diminishes the role of state legislatures by permitting federal and state prosecutors to circumvent state law. The choice to prosecute in federal court based upon federal penalties entails a choice to by-pass state legislative responsibility. Federalizing state criminal offenses should be avoided because federalism is weakened and because the role of federal courts as courts of limited jurisdiction is thereby undermined. Specific crimes may be appropriate for federal action if a systemic failure makes state action impossible or ineffective; such crimes may include those that have complex international or interstate implications, that relate to the protection of civil rights, or where conflicts prevent effective state or local prosecution. Inadequacy of state resources is not sufficient reason for federal takeover of criminal jurisdiction.
In the process of selecting nominees to the federal courts, the President and the Senate should -- among other considerations -- be mindful of the vital role federalism plays within our constitutional framework.
NCSL endorses periodic examination by Congress of the state of American federalism. Members of Congress shall expand formal and informal communications with their state legislatures in order to defend federal legislation that diminishes state powers and to explore less intrusive means of achieving national goals. In exploring the dimensions of federalism, Congress shall consider the need for statutory and constitutional remedies to restore balance. Together, we should revive appreciation for the principle that sharing power between levels of government enhances America's ability to develop responsive policy in a changing world.
Whereas, The "Help America Vote Act of 2002," Pub.L.107-252, (HAVA) was enacted by Congress and signed into law by President Bush on October 29, 2002; and
Whereas, This law, based upon recommendations by several national study commissions including the National Conference of State Legislatures' Election Reform Task Force, resulted from a consensus that the nation's electoral system needs improvements to ensure that every eligible voter has the opportunity to vote, that every vote will be counted that should be counted, and that no legal vote will be canceled by a fraudulent vote; and
Whereas, HAVA authorizes $3.9 billion in federal aid to the states to fund the purchase of more reliable voting systems, and mandates changes in the conduct of federal elections in all states to ensure greater access to the polls by individuals with disabilities, to provide more information for individuals who wish to vote and better training of poll workers, and to reduce the possibility of fraud; and
Whereas, the states’ cost of HAVA implementation will exceed the amounts currently appropriated by Congress. In the absence of federal funding, these additional costs will have to be absorbed by the states and may result in states reducing the number of polling places or decreasing the number of poll workers and voter education efforts; and
Whereas, Congress must honor its obligation to the states to provide sufficient funding under HAVA which will ensure states are able to adequately implement all of its provisions even if such funding exceeds the initial appropriated amounts; and
Whereas, Given the severe effect of the national economic slowdown on most states and the fact that many of the provisions of HAVA are federal mandates with which the states must comply whether or not federal money is provided, the underfunding of HAVA represents the imposition of expensive requirements on many states at the time when they are least able to afford such requirements; and
Whereas, Failure to sufficiently fund HAVA will amount to a massive unfunded federal mandate on the states; and
Whereas, The National Conference of State Legislatures recognizes both the pressing need for election reform and the great difficulty of effectuating such reforms without the funds promised by the federal government; and
Whereas, It is fitting and proper for this organization of states to urge the President of the United States and the Congress of the United States to fully fund the "Help America Vote Act of 2002,” and to continue to fund state efforts to reform their voting processes and procedures as needed in the future without imposing additional federal mandates on states; now, therefore,
Be It Resolved that the National Conference of State Legislatures urges the President of the United States and the Congress of the United States to sufficiently fund the "Help America Vote Act of 2002" which will enable states to fully implement the law according to its mandates.
The National Conference of State Legislatures recognizes the importance of permitting aggrieved parties to seek full and fair redress in state courts for physical harm done to them due to the negligence of others. NCSL also understands the importance of having clear rules to govern the means and methods by which people can seek such redress. Our American federalism contemplates diversity among the states in establishing these rules and respects the ability of the states to act in their own best interests in matters pertaining to civil liability due to negligence.
NCSL regards the regulation of medical professionals as a purely state matter, not meriting federal intervention or preemption of state laws. All fifty states have statutes of limitations in place stating the timeframe during which it is appropriate for an action to be brought in negligence cases, and many states have established limitations on the amount of noneconomic damages that may be awarded in such cases. All states have evidentiary processes in place that provide for the full and fair adjudication of lawsuits. In sum, in the last decade alone, most states have taken up the issues surrounding medical malpractice and continue to handle the issues surrounding the filing and processing of these cases in ways that are consistent with existing state law, giving due consideration to factors that may be unique to a particular state.
NCSL opposes federal efforts to preempt existing state laws or state constitutional provisions in the area of medical malpractice lawsuits, specifically federal legislation that would preempt state laws and/or constitutions in the following manner:
- Preempt state laws governing the applicable statute of limitations in such cases;
- Preempt state laws governing the awarding of damages by mandating a mandatory uniform amount of damages of any kind (compensatory, noneconomic or punitive) at the federal level;
- Preempting state laws governing the drafting of pleadings and introduction of evidence in such cases; and
- Preempting state laws and/or constitutions governing the awarding of attorney's fees.
Periodically, Congress seeks to pass legislation which severely restricts the rights of persons injured by defective products to seek recovery in state courts. Such legislation fails to meet the standards necessary for federal preemption.
In particular, no comprehensive evidence exists demonstrating either that state product liability laws have created a problem of such dimension that a federal solution is warranted or that federal legislation would achieve its stated goals. NCSL believes that this type of legislation would create serious new problems in the field of product liability by dictating a single set of rules controlling the timeliness of claims and the admissibility of evidence. It would conflict with long-standing state laws governing tort liability, workers' compensation and insurance regulations. By doing so, such proposals would place state legislatures and state courts in an intolerable legal straightjacket.
Therefore, in conformance with our general policy in opposition to federal preemption of state law and in the conviction that it is particularly improper for the federal government to attempt to restrict citizen access to state courts, the National Conference of State Legislatures strongly opposes all legislation before Congress that would have the effect of preempting state laws regulating recovery for injuries caused by defective products.
The National Conference of State Legislatures recognizes the importance of permitting aggrieved persons to seek full and fair redress in state courts for the wrongful acts of others resulting in injury or damage. The statutes and court rules that govern these civil actions arising out of acts of negligence or the commission of a tortious act have always been regulated by state law. Periodically, Congress seeks to enact legislation that attempts to set uniform federal standards for state civil tort actions. These pieces of legislation amount to unnecessary federal action in an area traditionally regulated by state law.
Therefore, in conformance with NCSL’s general policy of opposing federal preemption of state law, NCSL believes that it is particularly improper for the federal government to attempt to restrict or redefine citizen access to state courts, and strongly opposes federal legislation which would preempt state personal injury and tort laws.
The National Conference of State Legislatures recognizes that methamphetamine is a significant drug threat in the United States. State legislatures are sensitive to the fact that the manufacture and use of methamphetamine presents a plethora of social, child welfare, environmental, criminal justice and economic challenges. States also recognize the need to prevent the unlawful use of precursor substances such as pseudoephedrine, the main ingredient of methamphetamine. Pursuant to the enactment of the Combat Methamphetamine Epidemic Act of 2005 (Title 7 of the USA PATRIOT Improvement and Reauthorization of 2005 P.L. 109-177), state laws regarding the sale of pseudoephendrine have been preempted by federal law. Following the passage of this law, states have encountered obstacles in automating transaction records and documenting and tracking the movement of individuals involved in domestic manufacture of methamphetamine and purchase of and trafficking in precursor substances, including interstate activity.
NCSL supports the federal government’s role of providing adequate funding and training to states in the struggle to eradicate the methamphetamine epidemic. NCSL supports federal legislation that would provide funding to assist states in automating and integrating precursor transaction logs and related enhancements that facilitate methamphetamine enforcement. NCSL opposes any further federal mandates on states with regard to methamphetamine precursor substances and records of transactions. NCSL encourages the federal government to take a proactive role to enforce our borders against methamphetamine products entering the States.
WHEREAS, more and more people are being released from prison and jail in the US every year. Two million Americans are serving time in prison and ninety-seven percent of those people will be released. Nearly 650,000 people are released from prison each year, and over 7 million are released from jails, in the US; and
WHEREAS, the increasing numbers of people released from prison and jail has had significant implications for community safety and state and local government budgets. American taxpayers spent $9 billion for corrections in 1982; by 2002, the figure went up to $60 billion. And spending on corrections has been the fastest- or second-fastest growing item in state budgets over the last 15 years; and
WHEREAS, the goal of the Second Chance Act is to help states and communities alleviate crowding in their jails and prisons by reducing recidivism through an improved reentry process; and
WHEREAS, the legislation, signed into law by the President on April 9, 2008, provides grants to state and local governments that may be used to promote the safe and successful re-integration of individuals who have been incarcerated; and
WHEREAS, the legislation provides grants to nonprofit organizations that may be used for mentoring of adult offenders or providing transitional services for better reentry; and
WHEREAS, the legislation establishes a national resource center to collect and disseminate best practices and provide training and support to states and communities;
THEREFORE BE IT RESOLVED that the National Conference of State Legislatures supports the full funding of the provisions of the Second Chance Act, which will help state and local governments reduce recidivism, increase public safety, and respond better to the growing numbers of people released from prison and jail returning to the communities.
NCSL opposes the preemption of state authority regarding the issuance and production of state-issued documents. NCSL opposes efforts to subject these documents to prescriptive federal standards. NCSL opposes efforts by Congress to shift the cost of implementing new requirements to the states, as is the case for birth certificates (P.L. 108-458, 2004) and driver’s licenses (P.L. 109-13, 2005). NCSL urges Congress to meet its responsibilities and to provide full funding for new federal standards.
This policy replaces and supersedes the NCSL Standing committee policy “State Authority Over Driver's Licensing and Birth Certificates.”
NCSL strongly opposes any federal legislation or regulation that would: 1) attempt to define or categorize compensable "takings" under the Fifth Amendment to the United States Constitution; (2) interfere with a state's ability to define and categorize regulatory takings requiring state compensation; (3) preempt state eminent domain constitutional provisions or statutes; or (4) infringe on state sovereignty under the Eleventh Amendment. NCSL supports collaborative examinations of state and federal use of eminent domain authority.
The Help America Vote Act (HAVA) requires that voters who wish to vote in a federal election must provide a valid driver’s license number, the last four digits of a Social Security number, or for those without a driver’s license or Social Security number, a state assigned unique identifier when registering to vote for the first time. HAVA also contains state flexibility that has allowed states to enact their own unique requirements as to what form of voter ID the voter must show at the actual polling place.
Recently, Congress has sought to require mandatory photo voter ID at the polling place for all voters in federal elections. This legislation would preempt state laws in forty-five states. If passed, this federal legislation would create an unfunded federal mandate of potentially the same magnitude as the Real ID Act which will cost states $11 billion to implement. NCSL supports the rights of states to pass voter ID laws that meet the needs and concerns of their individual constituents. Further, NCSL does not believe that the federal Congress should intrude into this area of election administration, which is within the traditional purview of the states. NCSL opposes federal legislation that preempts state voter ID laws and would impose an unfunded mandate on the states.
Voting Rights Act Enforcement
The National Conference of State Legislatures reaffirms its commitment to the Voting Rights Act to ensure that individuals' rights to register to vote and to exercise their voting franchise are protected by Congress and the Administration, and that it will remain a top priority.
Staff contacts: Susan Parnas-Frederick, Senior Committee Director
Donna Lyons, Program Director
Last Updated August 7, 2008