Law, Criminal Justice and Public Safety Newsletter

 

Registration for NCSL’s Legislative Summit Is Now Open!

The website and registration for NCSL’s 2018 Legislative Summit are now live. This year’s Summit will be held July 30-Aug. 2 in Los Angeles. Check out the Law, Criminal Justice and Public Safety (LCJPS) Committee agenda. This year, the LCJPS Committee will again host the Supreme Court Roundup on July 30, 3-4:30 p.m. The U.S. Supreme Court has had a busy year of cases, many of which have meaningful implications for states. Attendees will explore these cases—from gerrymandering and elections to religious and gay rights, sports gambling and online sales taxes—and gain insider information about our nation’s highest court. The session will feature Lisa Soronen, executive director of the State & Local Legal Center (SLLC) in Washington, D.C., and NCSL's judicial blogger. Join us in Los Angeles for this session and many more.

House Passes Disaster Recovery Reform Act Under Federal Aviation Administration Reauthorization Package

On April 27, the House passed components of the Disaster Recovery Reform Act (DRRA) as part of HR 4, a bill that would reauthorize the Federal Aviation Administration for the next five years by a vote of 338-13. The House passed an earlier DRRA bill late last year, but the Senate has failed to take up the measure. Parts of the DRRA passed as part of the 2018 omnibus spending package, signed by the president in March, which dedicate $249 million for the Federal Emergency Management Agency's (FEMA) Pre-Disaster Mitigation Grant Program. The components of the DRRA included in HR 4 would increase the federal investment in pre-disaster mitigation, increase reimbursement caps for state and local governments on a range of disaster costs, and allow state and local governments to administer housing assistance grants. Specifically, the bill would:

  • Amend 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 (Section 502).
  • Allow states the option to administer FEMA funding for direct temporary housing and permanent housing construction in the wake of a disaster. FEMA must fund 100 percent of the direct temporary housing costs.
  • Establish the National Public Infrastructure Pre-Disaster Mitigation Assistance Program, which would commit certain funding from the Disaster Relief Fund to pre-disaster mitigation efforts. It would allocate six percent of the combined obligations estimated following a major disaster (unemployment assistance, assistance to low-income migrant and seasonal farmworkers and crisis counseling assistance and training) to mitigation assistance.
  • Require the FEMA administrator to develop a plan to streamline information collection processes for grant applications and make the process less burdensome and time consuming.
  • Direct FEMA to increase consideration of severe local impact when evaluating whether to recommend a major disaster declaration.
  • Allow the FEMA administrator to develop incentives and penalties to encourage state and local governments to expedite the timely closeout of recovery-related expenditures and activities.

Next, HR 4 will head to the Senate where lawmakers will be prompted for the second time to consider DRRA provisions. For more information, read NCSL’s Blog on the issue.

President Signs Bill Allowing Federal and State Governments to Prosecute Online Sex Traffickers

The Allow States and Victims to Fight Online Sex Trafficking Act of 2017, HB 1865 was signed into law on April 11. The bill amends the Communications Act of 1934 to clarify that Section 230 does not protect websites that participate in sex trafficking from federal and state criminal and civil sexual exploitation or trafficking laws. Perpetrators have successfully cited the Communications Decency Act (CDA) as a shield against criminal and civil prosecution for content posted by third parties. In 2013, 47 state Attorneys General issued a letter Congress to make the necessary changes to the CDA to restore jurisdiction to state authorities to prosecute sex trafficking laws.

The new law amends Section 230 of the Communications Act of 1934 to allow state authorities to investigate and prosecute websites that facilitate sex trafficking using state criminal statutes that prohibit such activities. It also allows victims to exercise civil remedies. It amends federal statute to expressly prohibit a provider of an interactive computer service from publishing information provided by an information content provider “with reckless disregard” that the information is in furtherance of sex trafficking.

Federal Appeals Court Blocks Trump Administration From Withholding Aid to “Sanctuary” Jurisdictions

A Chicago panel of three judges appointed by Republican presidents upheld a nationwide injunction on April 19 preventing the U.S. Department of Justice (DOJ) from requiring sanctuary jurisdictions to comply with federal immigration laws as a condition of receiving federal Byrne/JAG funding. The ruling relied on the core constitutional principle of the separation of powers, and held that the administration overstepped its legal authority in seeking to apply new conditions without involving Congress. The court stated, “The attorney general in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds.”

The ruling follows a suit filed by the city of Chicago against DOJ’s imposition of the new conditions last July—an apparent attempt to pressure state and local governments to assist federal immigration authorities. The ruling from the Chicago panel echoes that of judges in Philadelphia and Los Angeles who have also blocked administration efforts to attach the immigration-related conditions to new federal grants.

Supreme Court Amicus Brief Argues for Court Review of Critical Habitat Economic Impact

Under Weyerhaeuser Company v. U.S. Fish and Wildlife Service, NCSL recently joined an amicus brief through the SLLC arguing that courts should be able to review the U.S. Fish and Wildlife Service’s (FWS) decision to not exclude land from a critical habitat designation based on economic analysis. Under the Endangered Species Act (ESA), the FWS may designate land a “critical habitat” for an endangered species. The ESA mandates that FWS consider the economic impact of specifying an area as a critical habitat. FWS may exclude an area if the benefits of excluding it outweigh the benefits of including it.

FWS designated land in Louisiana owned by the Weyerhaeuser Company a critical habitat for the dusky gopher frog. The Weyerhaeuser Company holds a timber lease on all the land through 2043. Only about 100 adult dusky gopher frogs are known to exist in the wild. Historically, the frog was found in parts of Louisiana, Mississippi and Alabama. Today, the frog exists only in Mississippi.

FWS concluded the economic impacts on the land “are not disproportionate.” The Weyerhaeuser Company claims the potential loss of development value in the land is up to $33.9 million over 20 years. It also claims because the land isn’t currently habitable by the dusky gopher frog it provides no benefit. The 5th U.S. Circuit Court of Appeals agreed with FWS that once it has fulfilled its statutory obligation to consider economic impact, a decision to not exclude an area is discretionary and not reviewable in court.

The SLLC amicus brief argues there are standards for reviewing a decision not to exclude land from a critical habitat because the statute provides a standard for determining when to exclude land (if “the benefits of exclusion outweigh the benefits of designation”). As a practical matter the brief points out that without judicial review, FWS has no incentive to listen to the expertise of state and local government officials “who are experts in the land-use issues that exclusion decisions most affect.”

To designate unoccupied areas a critical habitat, FWS must determine that they are “essential for the conservation of the species.” The Weyerhaeuser Company sued the service claiming that the land in question does not meet the definition of critical habitat because it is currently “uninhabitable” by the frog “barring a radical change in the land’s use by its private owners.” The 5th Circuit ruled in favor of FWS concluding the definition of critical habitat includes no habitability requirement and no requirement the frog can live on the land in the foreseeable future. The Supreme Court is expected to hear the case during the 2018 session.

New Innovation Fund Launches to Support State and Local Public Safety Innovation

The John D. and Catherine T. MacArthur Foundation has partnered with the Urban Institute to launch the Innovation Fund. The Innovation Fund is intended to support local-level innovation aimed at reducing incarceration and promoting public safety, consistent with the goals of MacArthur’s Safety and Justice Challenge, with a particular focus on addressing disproportionate justice impact on low-income individuals and communities of color. In 2017, 20 jurisdictions were selected to join the initial cohort of Innovation Fund participants.

MacArthur and Urban just announced a second Innovation Fund competition. Innovation Fund sites will receive a grant of $50,000 and technical assistance and peer learning support in their efforts to rethink justice systems and implement data-driven strategies to safely reduce jail populations. Agencies, organizations, and other entities interested in applying for the Innovation Fund can access the program and grant application details here. There will be informational webinars on Tuesday, May 15, 2018, from Noon-1 p.m. ET or Thursday, June 7, 2018, from 1-2 p.m. ET (Registration is required.). Applications are due June 15, 2018. Visit NCSL’s webpage for information on state policies that affect local jails and additional information on the Safety and Justice challenge.

NCSL Webinar: “Multilateral Mitigation: State-Federal Collaboration to Build Disaster Resiliency”

Thursday, June 14 | 3 p.m. EST | Register Here

In the wake of 2017’s record-setting natural disasters, numerous state and federal agencies are mobilized to work collaboratively to better prepare and protect natural and built infrastructure to reduce the human and economic impacts of extreme weather events. Hurricanes Irma, Harvey, and Maria are among the top five costliest disasters in U.S. history, creating a renewed sense of urgency around disaster planning. However, these threats are not new to states like Texas, Florida, and Louisiana, that are well-versed in the unique risks they face and what’s necessary to address them. This webinar will explore examples of approaches states are currently implementing around disaster mitigation as well as recent actions the federal government has taken to help lessen disaster impacts and improve collaboration.

Speakers

  • Matt Cowles, deputy director, National Emergency Management Association
  • Mike Grimm, assistant administrator for mitigation, Federal Emergency Management Association

Additional Resources

From the NCSL Blog