Law, Criminal Justice and Public Safety Newsletter

Registration Still Open for NCSL’s Capitol Forum!

Registration is still open for NCSL’s 2018 Capitol Forum—to be held Dec. 5-7 in Washington, D.C.  Sessions hosted by the Law, Criminal Justice, and Public Safety Committee can be found in our online agenda, including:

Cybersecurity and Elections: Where We Are Now?                                        Thursday, Dec. 6 | 9:00-10:15 a.m.

A year ago, election cybersecurity was just starting to pop up on policymakers’ radars. Since then, it’s been a white-hot issue, and experts have been at work. Hear the latest on cybersecurity and elections from those who have produced user-friendly reports.

School Safety: Federal Resources and Tools to Improve School Safety     Thursday, Dec. 6 | 1:00-2:15 p.m.

The issue of school safety has been a leading topic of concern in Congress and across the country for years, with the conversation only intensifying this Congress. Attendees will consider approaches to address this challenge from other states as well as federal resources to improve school safety.

Supreme Court Roundup                                                                                          Thursday, Dec. 6 | 2:30-3:15 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, as well as the implications of new Supreme Court Justice Kavanaugh, and gain insider information about our nation’s highest court. Attendees will hear from speaker Lisa Soronen, executive director of the State & Local Legal Center, Washington, D.C.

NCSL Joins Broad Coalition in Letter Supporting Byrne/JAG and COPS Funding

NCSL joined a broad coalition in a Nov. 5 letter to Attorney General Jeff Sessions requesting full funding for the Byrne Justice Assistance Grant (Byrne JAG) and the COPS Hiring programs in the administration’s FY 2020 budget request to Congress. Funding for Byrne JAG has been reduced by Congress by one-third and the COPS Hiring program by one-half since FY 2010, causing a serious contraction in the reach of Byrne JAG-funded programs and law enforcement officer hiring across the states and territories. The letter emphasizes that the Byrne JAG and COPS programs are the cornerstone of the federal government’s support for state and local law enforcement. Since their inception, the Byrne JAG and COPS programs have provided urgently needed resources and tested new strategies for reducing crime and recidivism. The letter notes the many benefits of these programs in improving innovation, flexibility, and collaboration in and between states.

Department of Homeland Security and Department of Justice Issue Joint Statement and Interim Final Rule on Asylum Regulation

On Nov. 8, the Department of Homeland Security and Department of Justice issued a joint statement and interim final rule on asylum regulation. The interim final rule would bar potential asylum seekers at the southern border who do not enter the United States through a legal port of entry from making an asylum claim. Read the interim final rule

SLLC Files Supreme Court Amicus Brief in Double Jeopardy Case

NCSL joined the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the National District Attorneys Association, and the National Sheriffs Association in filing an amicus brief in Supreme Court case Gamble v. United States. In the brief, the State and Local Legal Center (SLLC) asks the Supreme Court of the United States (SCOTUS) not to overrule the “separate sovereigns” exception to the Double Jeopardy Clause. This exception allows states and the federal government to convict and sentence a person for the same conduct.

Gamble was prosecuted for and convicted of possession of a firearm by a convicted felon under both Alabama and United States law. His challenge to the “separate sovereigns” exception is unsurprising given that Justice Thomas joined Justice Ginsburg’s concurring opinion in Puerto Rico v. Sanchez-Valle (2016), which suggested the court do a “fresh examination” of the “separate sovereigns” exception. These Justices are on opposite ends of the ideological spectrum and typically don’t vote together in close cases. 

In Sanchez-Valle SCOTUS held that the Double Jeopardy Clause bars both Puerto Rico and the United States from prosecuting a person for the same conduct under equivalent criminal laws. Puerto Rico isn’t a sovereign distinct from the United States because it derived its authority from Congress. According to Gamble, the separate-sovereigns exception should be overruled because, among other reasons, it “flunks every test of constitutional interpretation.”

The United States responds that: “[a]n unbroken line of this Court’s decisions, whose origin reaches back nearly two centuries, has correctly understood the violation of a state law and the violation of a federal law as distinct ‘offence[s]’ under the Double Jeopardy Clause.“

The SLLC amicus brief points out that “Tenth Amendment and the federalism principles it enshrines have formed and shaped” the “separate sovereigns” exception. The brief also argues that several practical justifications support retaining the “separate sovereigns” exception. Specifically, eliminating it would “unfairly impact state and local prosecutors, who would remain politically accountable for law enforcement outcomes, despite being stripped of the ability to address those problems locally.”

Supreme Court Rules against State and Local Governments in Age Discrimination Case

In Mt. Lemmon Fire District v. Guido the Supreme Court of the United States (SCOTUS) ruled 8-0 that the federal Age Discrimination in Employment Act (ADEA) applies to state and local government employers with less than 20 employees. John Guido was 46 and Dennis Rankin was 54 when they were laid off by the Mount Lemmon Fire District. They claim they were terminated because of their age in violation of the ADEA. They were the oldest of the district’s 11 employees. The term “employer” is defined in the ADEA as a “person engaged in an industry affecting commerce who has 20 or more employees.” The definition goes on to say “[t]he term also means (1) any agent of such a person, and (2) a State or political subdivision of a State.” SCOTUS, in an opinion written by Justice Ginsburg, held that the phrase “also means” adds a new category to the definition of employer (that contains no size requirement) rather than clarifies that states and their political subdivisions are a type of person contained in the first sentence. SCOTUS reasoned that “also means” is “additive” rather than “clarifying,” and further noted that the phrase is common in the U.S. code and typically has an additive meaning. Finally, the statute pairs states and their political subdivisions with agents, “a discrete category that, beyond doubt, carries no numerical limitation.” NCSL joined the State and Local Legal Center’s brief in this case.

NCSL Releases November Issue of First Appearance Justice Policy Roundup

This month NCSL released the latest issue of the First Appearance newsletter—a digital newsletter for state legislators, legislative staff and others interested in pretrial release policy. This newsletter provides monthly updates on state interests, actions and resources and provides links to the latest research. In this issue, read about the latest news, extensive resources, and state-level updates on front-end justice.

New NCSL State Tracking on Legislation on Aging Inmate Populations

As the number of older inmates has increased significantly in recent years, states have adopted or modified medical and geriatric parole laws to address this population. NCSL has a new webpage with 50-state information on these laws. A September blog, Legislators Explore Causes, Consequences of Older Inmates, took a closer look at this topic.

NCSL Releases New Report on State Trends in Law Enforcement Legislation

NCSL released a new report examining state trends in law enforcement legislation over a four-year period. The report, “State Trends in Law Enforcement Legislation: 2014-2017,” examines state legislative activity addressing law enforcement in recent years. State legislative decision-making can have tremendous bearing on the everyday practices of the nation’s law enforcement. Areas of focus in the report include arrest alternatives, law enforcement tools including training and technology, collecting data to drive policy, officer and citizen safety, civil asset forfeiture and due process protections.

NCSL Releases Barriers to Work Series: People With Criminal Records

NCSL released a new Barriers to Work Series focusing on occupational licensing regulations that can create barriers and challenges for certain populations seeking to enter the labor market or change jobs. In this report, learn how licensing regulations impact 1 in 3 adults in the U.S. who have a criminal record.

Council of State Governments Justice Center Unveils Its Updated Webtool on Collateral Consequences

The Council of State Governments Justice Center released its updated National Inventory of Collateral Consequences of Conviction (NICCC) resource. This data tool compiles statutes and regulations from all 50 states and federal code into a searchable database, making it easier to identify hidden penalties that may be triggered by a particular conviction. Learn how to navigate the new NICCC site and leverage the one-of-a-kind resource in this webinar.

Additional Resources

NCSL StateVote Midterm Elections Resources Page (Nov. 6)

NCSL 2018 Cybersecurity State Legislation Tracking Page (Nov. 6)

Federal Emergency Management Agency’s Hazard Mitigation Assistance Programs Guide

From the NCSL Blog        

Baltimore Mayor, Former Maryland Senator Says State/Local Partnership Is Crucial to Success Of Jail Reform (Oct. 25)

Congress Finds Compromise on Opioids (Oct. 15)

Rights for Crime Victims on the Ballot in Six States (Oct. 12)

Declines in Crime, Increases in Data (Oct. 3)