Law, Criminal Justice and Public Safety Newsletter

2/19/2019

Law, Criminal Justice and Public Safety Newsletter

 

President Signs Budget Deal, Declares a National Emergency on the Border

On Feb. 15, President Donald Trump simultaneously signed a bipartisan budget deal to avert a government shutdown and declared a national emergency on border security. The moves came on the same day funding to keep the federal government open was set to expire. The national emergency declaration has evoked a medley of confusion, projections, and objections over the past week, featuring both support and denouncement from members of Congress as well as a 16-state lawsuit to block the action. The declaration allows the Trump administration to redirect funds between certain federal accounts for use, in this case, to construct a wall on the southern border—for more on how exactly the national emergency declaration works, read NCSL's blog post. The president described the declaration as a response to Congress appropriating only $1.3 billion for wall construction in the continuing resolution signed by the president, well below the president's requested $5 billion. 

The questions remain where exactly the funds for the border wall will come from, which projects will be affected, and whether the declaration will survive court challenges. The president specified three target pots of money, including $600 million from a Department of Treasury asset forfeiture fund for law enforcement activities, $2.5 billion from a military account designated for counter-drug efforts, and $3.6 billion in military construction funds, but the details on which projects will be affected and what will become of them remain unclear. There is an estimated $6 billion dollars in state projects that could be used for the potential border wall budget, according to Governing, with California, Hawaii, and Maryland standing to lose the most. These states and 13 others filed suit on Feb. 18 to protect these funds. Further developments on the declaration are likely to unfold in the coming weeks.

Farm Bill Legalizes Hemp: Featuring Barriers to Re-Entry, Expanded Crop Insurance

The Agriculture Improvement Act of 2018, also referred to as the Farm Bill was enacted on Dec. 20 and the cyclical legislation has become the main vehicle for comprehensive agriculture reform in Congress. The latest version includes a new regulatory framework for the legalized cultivation and sale of hemp (a variety of the cannabis plant grown for industrial uses) and allows hemp farmers to apply for crop insurance. However, the opportunity does not apply to some offenders—anyone convicted of a drug felony is barred from participating in newly legalized hemp production for 10 years from the date of conviction. An earlier version of the bill would have extended the ban for life. Some states such as California and Massachusetts have enacted policies that counteract this growing pattern of exclusion from newly legalized marijuana markets, that range from clearing marijuana convictions to designating revenues from new marijuana taxes to communities disproportionately affected by past drug policies.

FEMA Administrator Brock Long Resigns

Federal Emergency Management Agency (FEMA) Administrator Brock Long resigned from his post on Feb. 13 as part of testimony before the House Oversight and Government Reform Committee. Citing personal and family reasons, the former administrator said that "it has been a great honor to serve our country as FEMA Administrator for the past two years. During my tenure, the Agency worked more than 220 declared disasters." The move came months after accusations he misused government vehicles and a day before the president announced he would both sign the bipartisan budget deal and declare a national emergency on the southern border. Long engaged NCSL members at NCSL's State-Federal Convening on Natural Disasters in December, providing a presentation and lengthy dialogue on the past, present and future of disaster mitigation and recovery. Deputy Administrator Pete Gaynor is serving as acting administrator until Long's replacement can be confirmed. 

FEMA Releases Guidance on New Management Cost Reimbursement Increases in DRRA 

Following the passage of the Disaster Recovery Reform Act (DRRA) in October, FEMA has focused its efforts on implementation of the new law. Before the partial government shutdown furloughed much of the agency's staff, it was able to release guidance on how states can take advantage of new management cost reimbursement increases applicable to the Hazard Mitigation Grant Program and the Public Assistance Grant. Section 1215 of the DRRA amends the Stafford Act to establish increased and fixed reimbursement rates to state and local governments for direct and indirect administrative costs associated with disaster recovery efforts. This includes no more than 15 percent for hazard mitigation and 12 percent for essential assistance, repair, restoration and replacement, debris removal and transportation assistance. Additional details can be found on FEMA's website

Tomorrow: FEMA Webinar on Financial Preparedness for Emergencies

During America Saves Week, the Association for Financial Counseling & Planning Education® (AFCPE®) and FEMA's Individual and Community Preparedness Division are conducting a Webinar on the importance of financial preparedness for emergencies and the best ways to prepare. Join top financial preparedness experts Rebecca Wiggins, Executive Director, AFCPE and Sara Croymans, AFC Professional, AFCPE on Wednesday, February 27th from 1:00 PM – 2:00 PM EST. 

Register Here. To learn more, contact FEMA-Prepare@fema.dhs.gov

Disaster Funds Disbursement Stalls at Federal Level

In February 2018, Congress passed legislation appropriating $16 billion to states to help cover the costs of recovery and mitigation efforts through the Department of Housing and Urban Development's (HUD) Community Development Block Grants. The measure allocated $8.3 billion to Puerto Rico, $4 billion to Texas, $1.2 billion to Louisiana, $774 million to the U.S. Virgin Islands, and $550 million to Florida. Despite nearly a year since the legislation's passage, HUD has yet to issue guidance that directs states on how to apply for this critical and sizable aid package. With tornado and flood season fast approaching and another hurricane season a mere seven months away, some state officials are growing concerned over the availability of these funds. Texas Land Commissioner George P. Bush issued a letter to Office of Management and Budget Director Mick Mulvaney in early January urging HUD to issue guidance and disburse funding without further delay. Unfortunately, the partial government shutdown extended this delay, as relevant staff at HUD were furloughed.

From the State and Local Legal Center: Supreme Court Decides Excessive Fines Case Against States and Local Governments

In a unanimous decision in Timbs v. Indiana, the Supreme Court held that the Eighth Amendment's Excessive Fines Clause is "incorporated" or applicable to the states and local governments. Indiana sought to forfeit Tyson Timbs' Land Rover, which he used to transport heroin. The trial court concluded the forfeiture was unconstitutional under the Eighth Amendment's Excessive Fines Clause because the value of the vehicle well exceeded the maximum statutory fine for the felony Timbs pled guilty to. The Indiana Supreme Court held the Excessive Fines Clause doesn't apply to the states. In an opinion written by Justice Ruth Bader Ginsburg, the Supreme Court disagreed holding that Excessive Fines Clause is incorporated by the Due Process Clause of the 14th Amendment. The Excessive Fines Clause is "fundamental to our scheme of ordered liberty" and "deeply rooted in the Nation's history and tradition" because it traces its "venerable lineage" back to at least the Magna Carta in 1215, was reaffirmed in the English Bill of Rights in 1689 and adopted almost verbatim from there in the Eighth Amendment. When the 14th Amendment was adopted in 1868, 35 of the 37 states prohibited excessive fines. Today "all 50 States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality." The protection against excessive fines has been necessary "throughout Anglo-American history" because "exorbitant tolls undermine other constitutional liberties." NCSL did not join the amicus brief in this case. This piece was written by Lisa Soronen, executive director of the State and Local Legal Center. 

Supreme Court Rules Capital Defendant is Intellectually Disabled (and Can't Be Executed)

In an unauthored opinion in Moore v. Texas II the Supreme Court concluded Bobby James Moore has an intellectual disability. According to the Supreme Court, "[a]t 13, Moore lacked basic understanding of the days of the week, the months of the year, and the seasons; he could scarcely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition." For a court to find intellectual disability a person must have intellectual-functioning deficits and adaptive deficits that onset when the person was a minor. While the trial court found that Moore had adaptive deficits two or more standard deviations in all three adaptive skill sets (conceptual, social, and practical), the Texas Court of Criminal Appeals held that Moore had not proven that he "possessed the requisite adaptive deficits." In Moore v. Texas I criticized the Texas Court of Criminal Appeals for five errors including:  overemphasizing Moore's adaptive strengths, stressing Moore's improved behavior in prison, concluding that Moore's record of academic failure and child abuse detract from a "determination that his intellectual and adaptive deficits were related," and requiring Moore to show his adaptive deficits were not related to a personality disorder." The final error the Supreme Court pointed to in Moore I was the Texas Court of Criminal Appeals relied on a number of factors from a 2004 Texas Court of Criminal Appeals court decision, Ex parte Briseno, which the Supreme Court described as "having no grounding in prevailing medical practice," and "invit[ing] 'lay perceptions of intellectual disability' and 'lay stereotypes' to guide assessment of intellectual disability." In Moore II the Supreme Court held the Texas Court of Criminal Appeals made many of the same mistakes it made in its first decision. "We have found in its opinion too many instances in which, with small variations, it repeats the analysis we previously found wanting, and these same parts are critical to its ultimate conclusion." With no additional analysis, the Supreme Court agreed with Moore (and the prosecutor in this case) that "on the basis of the trial court record, Moore has shown he is a person with intellectual disability." This piece was written by Lisa Soronen, executive director of the State and Local Legal Center.

SLLC Supreme Court Midterm webinar

The big news for state and local governments is that the Supreme Court will decide a gun case—next term. This term's docket is now set. Since September the Supreme Court agreed to take a case involving a religious display on public lands. It also has decided an employment case and agreed to hear another employment case—both involving local governments. And partisan gerrymandering has returned to the docket again. Join Colleen Roh Sinzdak, Hogan Lovells, who will discuss three cases she and others in her firm have worked on this term, Richard A. Simpson, Wiley Rein, LLP, who co-wrote the SLLC amicus brief in an alcohol regulation case, and Brian Cardile, an editor and producer at the Daily Journal.

Date:  March 20, 2019
Time:  1 p.m. ET
Register Here

Juvenile Justice System Policy Academy Convened in January

Young adults are overrepresented at every stage of the criminal justice system. At the end of January, policymakers from five states gathered in Washington, D.C., for the Intergovernmental Policy Academy: Young Adults and the Justice System to discuss possible solutions. Read about the gathering in NCSL's Blog

Additional Resources

From the NCSL Blog