Law, Criminal Justice and Public Safety Newsletter

Highlights from NCSL’s Fall Capitol Forum and State-Federal Convening on Natural Disasters

NCSL Disasters Convening

NCSL’s Law, Criminal Justice and Public Safety Committee held the first State-Federal Convening on Natural Disasters on Dec. 4 in Washington, D.C. The meeting brought state legislators and legislative staff together with state and federal leaders in emergency management, including Federal Emergency Management Agency (FEMA) Administrator Brock Long, to discuss the federal-state nexus in disaster relief. Attendees exchanged solutions to these growing threats, explored strategies for collaboration, and voiced their perspectives on this federally prioritized issue.

Attendees representing disaster-affected states (Puerto Rico, Florida, North Carolina, Hawaii, wildfire states, etc.) engaged in nearly 90 minutes of substantive, off-the-record discussion with Long on the agency’s response—across housing, transportation, finance and other sectors—to Hurricanes Irma, Maria, Harvey and others. Both sides offered honest perspectives on these growing challenges, referencing state legislation and FEMA’s shifting emphasis toward an increased state and local role and pre-disaster mitigation (as in its 2018-2022 strategic plan). Attendees considered a range of perspectives on this issue from such speakers as Puerto Rico’s secretary of housing, committee staff from the U.S. House of Representatives and original author of the Disaster Recovery Reform Act (DRRA) Pam Williams, and speakers from AT&T and Facebook. The group discussed, and continues to consider, possibilities for future engagement on disaster relief.

Law, Criminal Justice and Public Safety Committee Sessions

Additional committee sessions included a federal update featuring U.S. Department of Homeland Security staff who briefed members on recent FEMA, school safety and Customs and Border Protection priorities and developments, and a dynamic lunch program with expert Ohio State University faculty Doug Berman and Alex Kreit who discussed drug policy issues at the federal and state levels. The committee also explored the state role in local justice with the Bureau of Justice Assistance and NCSL staff Amanda Essex and reviewed pending Supreme Court cases in our ever-popular Supreme Court roundup session. Thanks to all who attended.

Resources from the Convening and the Fall Forum can be found on NCSL’s website.

The State Role in Local Justice at the NCSL Capitol Forum

At the NCSL Capitol Forum, legislators and legislative staff attending the State Role in Local Justice session had the chance to hear from Kristen Mahoney, deputy director for Policy at the Bureau of Justice Assistance (BJA) within the Office of Justice Programs and U.S. Department of Justice. She detailed current and upcoming grant solicitations that states may be interested in, including current solicitations for the Justice Reinvestment Initiative: Reducing Violent Crime by Improving Justice System Performance. She also highlighted Training and Technical Assistance provided by BJA and programs including:

Information on solicitations that will be posted in 2019 can be found within the DOJ Program Plan. For questions about these or other opportunities for federal criminal justice grants, don’t hesitate to reach out to NCSL at cj-info@ncsl.org.

First Steps Toward Federal Justice Reform: The First Step Act

Last week, NCSL sent a letter to Senate leadership in support of the First Step Act, the first major federal criminal justice reform bill in many years. Having passed the Senate late Dec.18 and now awaiting approval by the full House, the bill is divided into three main categories. The first is dedicated to the creation and funding of evidence-based recidivism reduction programs in federal prisons with the main goal of achieving successful reentry of inmates into their communities upon release. The second is the expansion of good behavior and early release programs in which inmates can participate during their incarceration in federal prison. The third contains amendments to federal sentencing laws. The First Step Act also contains provisions prohibiting the shackling of female inmates during pregnancy and postpartum and imposing solitary confinement on juvenile inmates.

Juvenile Justice and Delinquency Prevention Act Awaits President’s Signature

The U.S. House passed the Juvenile Justice and Delinquency Prevention Act (JJDPA) on Dec. 13, sending the comprehensive reform legislation to the president’s desk. Overshadowed by news of the First Step Act’s swift and sudden movement through Congress, the JJDPA’s passage marks a critical moment in juvenile justice reform. Reviewed, revised and postponed for more than a decade, the bill implements a new version of the JJDPA that previously expired in 2007, and favors a more collaborative effort among parents, teachers, and community members in addressing juvenile offenders.
Initially enacted in 1974, the original law aimed to focus federal and state efforts to improve juvenile justice systems on education and rehabilitation—trading federal grants for compliance with basic juvenile justice standards. Over the years, many of these state juvenile justice programs have improved outcomes for juvenile offenders—but not all have produced the same results, and there remain serious inequities in the system. Now, many years later, the current JJDPA bill aims to improve on this framework by:

  • Providing greater flexibility to state and local leaders in meeting the needs of delinquent youth in their particular communities.
  • Improving support for prevention services, allowing at-risk youth to avoid the justice system altogether.
  • Prioritizing evidence-based strategies with proven track records.
  • Authorizing funding for tutoring, mental health, and drug and alcohol programs for children.
  • Barring states from holding children in adult jails, even if they’ve been charged with adult crimes. In so doing, the bill eliminates a loophole in earlier versions of the law allowing juvenile offenders to be held in adult jails pretrial.
  • Requiring states that receive related federal funding to track data on racial disparities, and craft state plans to detail how to counter those trends.
  • Banning the shackling of pregnant women.

It is anticipated that the president is likely to sign the bill, given little pushback thus far. For more information, see NCSL’s Principles of Effective Juvenile Justice Policy.

What’s Next for the Affordable Care Act?

While a federal district court struck down the Affordable Care Act as unconstitutional on Dec.14, the ACA and the litigation will continue. The judge didn’t issue a nationwide injunction which would have had the effect of immediately ceasing all aspects of the law.

Unsurprisingly, the states defending the law have stated they will appeal this ruling to the 11th Circuit. Particularly if the 11th Circuit agrees with the lower court, the Supreme Court is likely to hear this case though not until its next term beginning October 2019.

The ACA individual mandate required uninsured who didn’t purchase health insurance to pay a so-called shared-responsibility payment. In 2012, the Supreme Court held the individual mandate is a constitutional “exercise of Congress’s Tax Power because it triggered a tax.” The Tax Cuts and Jobs Act of 2017 reduced the tax to $0 as of Jan. 1, 2019.

Challengers argued the individual mandate is no longer a “constitutional exercise of Congress’s enumerated powers” when the shared-responsibility payment is zero. The district court agreed. According to the court, the individual mandate and the shared-responsibility payment are distinct. The Supreme Court concluded the individual mandate was constitutional because it triggers a tax. But following the Tax Cuts and Jobs Act, the mandate no longer triggers a tax.

The three groups of parties to this case argued for three different results assuming the court ruled the individual mandate was unconstitutional. The non-government challengers argued the individual mandate is inseverable, meaning if it is unconstitutional, the entire law is unconstitutional. The Department of Justice, which didn’t defend the constitutionality of the individual mandate, argued that the individual mandate plus the guaranteed-issue and community-rating requirements, which were intended to provide affordable health insurance for those with pre-existing conditions, are severable. The states, led by California, defending the mandate, arguing the individual mandate alone is severable.

The court agreed with the non-government challengers that the individual mandate is inseverable from the rest of the statute rendering it unconstitutional in its entirety. If Congress would have enacted the constitutional parts of a law without the unconstitutional parts, the unconstitutional parts are severable. Here, the individual mandate is inseverable, according to the court, because “Congress stated three separate times that the Individual Mandate is essential to the ACA.”

In the 11th Circuit, the parties are likely to press the same positions. This summary, by Lisa Soronen, is also available on the NCSL Blog.

DHS Releases New Active Shooter Incident Kits Under Campus Resilience (CR) Program

“The DHS Office of Intergovernmental Affairs is reaching out to share with you an exciting new product that our Office of Academic Engagement (OAE) has developed as part of its Campus Resilience (CR) Program in support of the Department’s school safety efforts. Today, OAE released Exercise Starter Kits designed specifically for the K-12 community that focus on an active shooter incident.  

"The CR Program Exercise Starter Kits (ESKs) are a set of tools and resources for the academic community to self-conduct a tabletop exercise (TTX). The kits reinforce specific emergency plans, protocols, and procedures, while also testing and strengthening preparedness, response, and recovery capabilities. The new K-12 ESKs are available in three (3) K-12 school levels: elementary school, middle/junior high school, and high school.

"The new kits are a part of the CR Program’s other suite of Exercise Starter Kits, which are designed for institutions of higher education (IHE) and focus on a cyber-breach, hurricane, and active shooter incident.”

DHS Celebrates National Human Trafficking Awareness Day by Wearing Blue

DHS is celebrating #WearBlueDay on Jan. 11, National Human Trafficking Awareness Day. Join the department’s Blue Campaign and other organizations and individuals across the country in wearing blue to encourage greater public awareness To participate in #WearBlueDay, you can:

  • Wear a piece of blue clothing on Jan. 11th and encourage your colleagues, friends and family to do the same.
  • Post a photo on social media (Facebook, Twitter, and/or Instagram) of yourself or others in your organization wearing blue with the hashtag #WearBlueDay.
  • Tag @DHSBlueCampaign on Twitter, Facebook and Instagram so they can see how you’re participating.

Check out how other organizations have participated in #WearBlueDay and ideas on how you can get involved here. For updates leading up to #WearBlueDay, follow @DHSBlueCampaign on Twitter, Instagram, and Facebook.

NCSL Releases New Report on the Criminalization of Trafficking Crimes

State laws establish criminal penalties for traffickers seeking to profit from forced labor or sexual servitude. The laws vary in several ways, including who is defined as a trafficker, what actions constitute trafficking, and the severity of the criminal and financial penalties offenders will face. Learn more from NCSL's report, "Prosecuting Human Traffickers: Recent Legislative Enactments."

The Pew Charitable Trusts Releases New Interactive Tool on Juveniles in Residential Placement

The Pew Charitable Trusts website has a new interactive feature highlighting data from the census on juveniles in residential placement (2015 is the most recent collection; the tool will be updated as new data is released), showing that nearly a quarter of youth in custody both pre- and post-adjudication are there for status offenses and probation violations. There are ways to organize the data by number, rate and percentage of youth in confinement and users can get data from individual states. For more information on state policy related to status offenses and probation violations see Principles No. 3 and No. 7 of the NCSL report “Principles of Effective Juvenile Justice Policy.”

NCSL’s State Legislatures Magazine Highlights Front-end Justice Reforms

State and local policymakers have been turning their attention from the back-end of the criminal justice system—deciding who goes to prison and for how long—to the front-end of the system. Changes at the front-end focus on helping people avoid involvement in the system altogether, rerouting those who get caught up in the system but don’t belong, and helping those already involved in the system from getting in even deeper.

The most recent State Legislatures magazine highlights front-end justice reforms in a three-part feature. Learn about bipartisan reform efforts happening nationwide, how law enforcement plays a key role in reform, and how reforms are shedding light on the roles wealth and poverty play in determining who stays in jail and who goes free.

NCSL Multi-State Occupational Licensing Consortium Met in November

On Nov. 14, state teams met to discuss progress, challenges and future strategies to reduce barriers to occupational licensing and improve job prospects for their citizens. These states are part of a Multi-State Occupational Licensing Consortium funded through a grant from the U.S. Department of Labor, and this was the second of three multi-state meetings. NCSL is working with partner organizations—the Council of State Governments and the National Governors Association—to oversee the consortium and provide resources and assistance to the state teams.

Resources available online

At the November meeting, the state teams spent three days hearing from experts, learning from each other, and working as teams to strategize and prioritize goals for their states. Several states are focusing on reducing barriers for people with criminal records through legislative changes, department policy updates, and improved communication strategies. Additional information on the consortium can be found here.

Additional Resources

From the NCSL Blog