Law, Criminal Justice and Public Safety Newsletter

Register Now Open for NCSL’s Capitol Forum!

Registration is 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 | 9-10:15 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 | 1-2:15 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.

2018 FAA Reauthorization Act and Disaster Recovery Reform Act Become Law

With a 96-3 vote in the Senate, Congress passed the Federal Aviation Administration (FAA) Reauthorization Act of 2018 and the Disaster Recovery Reform Act as one bill (HR 302) on Oct. 3. President Donald Trump signed the package into law two days later. The new law includes what’s considered the most comprehensive disaster recovery reform package since Hurricane Katrina.

The DRRA increases the federal investment in pre-disaster mitigation, increases reimbursement caps for state and local governments on a range of disaster costs and allows state and local governments to administer housing assistance grants. In Section 1239, the law directs the administrator of the Federal Emergency Management Association (FEMA) to revise and update the factors considered when evaluating a governor’s request for a major disaster declaration, including the way FEMA estimates the cost of major disaster assistance and the capacity of a jurisdiction to respond to disasters. NCSL staff drafted language, included in this section of the law, that requires consultation with state and local governments. It reads:

“In determining the capacity of a jurisdiction to respond to disasters, and prior to the issuance of such a rule, the Administrator shall engage in meaningful consultation with relevant representatives of State, regional, local, and Indian tribal government stakeholders.”

NCSL, in making its case for the inclusion of the language, asserted that no entity can know a state’s capacity to respond to a disaster better than state governments themselves. The inclusion of this language ensures that FEMA consider this important perspective before making changes to the way disaster assistance is calculated, based on such capacity.

This language reflects NCSL’s Homeland Security and Emergency Management policy, revised and passed by legislators on the Law, Criminal Justice and Public Safety Committee at the 2018 NCSL Legislative Summit. NCSL issued a letter to the full Senate in July highlighting certain components of the legislation and advocating for its passage. For more information on the bill’s contents, see NCSL’s blog post and Info Alert.

Violence Against Women Act Extension Included in Continuing Resolution to Dec. 7

Funding for the Violence Against Women Act (VAWA) was extended to Dec. 7 under the stopgap spending bill released in mid-September. The fiscal 2019 spending package, HR 6157, keeps the government operating and provides Congress time to work on longer-term spending measures. Congress hasn’t reauthorized VAWA since 2013. Democrats introduced a reauthorization proposal in July that will help victims of domestic violence and stalking stay in stable housing situations and expand red flag laws—gun control laws meant to prohibit individuals convicted of dating violence and stalking from possessing firearms. Neither the House nor Senate have acted on the reauthorization despite 46 House Republicans calling on Speaker Paul D. Ryan (R-Wis.) and Majority Leader Kevin McCarthy (R-Calif.) to bring a reauthorization of the law to the floor before its Sept. 30 expiration date.

NCSL and the State and Local Legal Center Files Amicus Brief in Virginia Uranium v. Warren

The State and Local Legal Center (SLLC) filed a Supreme Court amicus brief in Virginia Uranium v. Warren arguing that Virginia’s ban on uranium mining isn’t pre-empted by the Atomic Energy Act (AEA). In this case, a Virginia company, Virginia Uranium, wants to mine the country’s largest known uranium deposit on land it owns in Virginia. The Virginia legislature, however, passed a law in the 1980s prohibiting uranium mining.  The company argues that Virginia law is pre-empted by the AEA, which regulates ONLY the uranium mining process and addresses issues of radiation safety and uranium waste disposal. The AEA does not address whether uranium mining is allowed or prohibited. The court will have to decide whether the AEA pre-empts a state law that on its face regulates an activity within its jurisdiction (here, uranium mining), but has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission under the AEA (here the radiation and uranium waste issues). 

The 4th Circuit ruled in favor of the Commonwealth of Virginia and reasoned that:

  1. The AEA allows states to “regulate activities for purposes other than protection against radiation hazards.” Virginia concedes that it bans uranium mining for safety reasons but argues that uranium mining isn’t an “activity” regulated by the AEA. The Nuclear Regulatory Commission, which administers the AEA, agrees.
  2. Virginia’s statute doesn’t mention uranium safety or disposal issues and the court ruled that it did not need to look beyond the plain meaning of the statute to determine the legislature’s motives for its passage.
  3. The federal government can always buy the land and “forcibly expand the production of domestic source material.”

SLLC recommended filing as an amicus in this case because for states, despite that the implications of this exact set of facts might be limited as apparently most uranium is imported, broader pre-emption principles are at stake—namely courts ending the pre-emption inquiry (and not digging into purpose and effect) once state jurisdiction is established. The SLLC amicus brief  was joined by NCSL,  the National League of Cities, and the International City/County Management Association.

Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office Compliance Resources Available

The Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART Office) in the U.S. Department of Justice provides jurisdictions with guidance regarding the implementation of the Adam Walsh Act, and provides technical assistance to the states, territories, Indian tribes, local governments, and to public and private organizations. The SMART Office also tracks important legislative and legal developments related to sex offenders and administers grant programs related to the registration, notification, and management of sex offenders.

The Office has developed a series of documents related to Title I of the Adam Walsh Child Protection and Safety Act of 2006, the Sex Offender Registration and Notification Act (SORNA). These documents provide further definition, guidance, and direction on a number of topics to assist jurisdictions with the implementation of SORNA. Jurisdictions should use these documents, along with the statute (P.L. 109-248) and any guidelines and regulations issued by the attorney general, when developing legislation and policies to substantially implement SORNA.

NCSL Releases Mental Health Legislative Primer and First Appearance Justice Policy Roundup

NCSL released a new legislative primer on justice-involved individuals with mental health needs. In 44 states, a prison or jail holds more individuals with mental illness than the state’s largest psychiatric hospital. Find out how states are supporting policies across the justice system that promote public safety while reducing unnecessary incarceration of the mentally ill. This month NCSL also 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.

Council of State Governments Justice Center Releases 50-State Public Safety Report

The Council of State Governments (CSG) Justice Center has released a new, web-based resource that combines extensive data analyses, case studies, and recommended strategies from all 50 states to help policymakers address their state’s specific public safety challenges. The 50-State Report on Public Safety features more than 300 data visualizations comparing crime, recidivism, and state correctional practices across all 50 states, creating a central hub of criminal justice information unmatched in its size and scope to date.

Additional Resources

Federal Emergency Management Agency’s Hazard Mitigation Assistance Programs Guide

NCSL Webinar Archive: “Multilateral Mitigation: State-Federal Collaboration to Build Disaster Resiliency” (June)

What Justice Kavanaugh May Mean for State and Local Government (July)

The National Homeland Security Consortium’s Homeland Security Grant Return on Investment Report (August)

From the NCSL Blog        

Supreme Court to Decide if States May Execute Those Who Can’t Remember Their Crime (Sept. 17)

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

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

Congress Finds Compromise on Opioids (Oct. 15)