Law, Criminal Justice and Public Safety Committee Newsletter is an NCSL electronic newsletter for Committee members and interested staff. This newsletter provides monthly updates and links to the latest research and news highlights related to law, criminal justice and public safety.
The website and registration for NCSL’s 2019 Legislative Summit are now live. Headlining the Summit Aug. 5-8 in Nashville, Tenn. are living legend Dolly Parton and presidential historian Jon Meacham. For more information and to register, visit NCSL’s Summit website. Access to the criminal justice agenda is available here. The website and agenda are updated frequently as we approach the Summit.
On April 4, NCSL sent a letter supporting the “Strengthening the 10th Amendment Through Entrusting States Act of 2019,” (STATES Act). This bipartisan bill respects states’ policy decisions on marijuana legalization and regulation pursuant to the 10th Amendment of the U.S. Constitution. The STATES Act provides an exemption from federal law to “any person acting in compliance with state law” with respect to the “manufacture, production, possession, distribution, dispensation, or delivery” of marijuana. The legislation also seeks to remove existing federal barriers to robust financial and banking services currently afforded to other business enterprises and creates a safer environment in which to transact business, commerce, and trade.
On March 26, the House failed to override President Donald Trump’s veto on a resolution of disapproval passed earlier last month that would have blocked the president’s emergency declaration. The measure achieved final passage in the Senate when 12 Republicans joined all Democrats on a vote to pass (59 to 41) a resolution (HJ Res. 46) blocking the president's national security declaration. This followed the measure's earlier passage (245 to 182) in the House. Trump vetoed the measure the next day, the first time he has used the veto power during his presidency. Although the emergency declaration is will stay in place, it faces months or years of court proceedings in the face of numerous legal challenges–in part from the House itself, filed on April 5. For more on the National Emergency Act and the procedures surrounding a presidential declaration, read NCSL's Blog. Learn more about the presidential veto process here.
In Madison v. Alabama the Supreme Court of the United States (SCOTUS) held 5-3 that the Eighth Amendment prohibits a person who lacks a “rational understanding” for why the death penalty has been imposed due to mental illness, to be put to death regardless of what mental illness the person is suffering from. Vernon Madison was sentenced to death for killing a police officer in 1985. Since then he has suffered a series of strokes and has been diagnosed with vascular dementia. He claims he no longer remembers the crime for which he has been sentenced to death. In Ford v. Wainwright (1986), SCOTUS held that the Eighth Amendment’s ban on cruel and unusual punishments disallows executing a person who has “lost his sanity” after sentencing. The court “clarified the scope of that category in Panetti v. Quarterman  by focusing on whether a prisoner can ‘reach a rational understanding of the reason for [his] execution.’” Madison initially argued that he could not be executed because he could not remember his crime. He ultimately conceded that he can. The majority of SCOTUS agreed with Madison, in an opinion written by Justice Kagan, because Panetti “asks about understanding, not memory—more specifically, about a person’s understanding of why the state seeks capital punishment for a crime, not his memory of the crime itself.” SCOTUS was unable to determine whether Madison’s execution could go forward because the lower court didn’t determine whether Madison had a rational understanding of why Alabama sought to execute him.
The question in Kahler v. Kansas is whether the Eighth and 14th Amendments permit a state to abolish a defense to criminal liability that mental illness prevented a defendant from knowing his or her actions were wrong. James Kahler was sentenced to death for fatally shooting his wife, her grandmother, and his two daughters. Kahler presented the testimony of a forensic psychiatrist who stated that Kahler was suffering from severe major depression at the time of the crime and that “his capacity to manage his own behavior had been severely degraded so that he couldn't refrain from doing what he did.” Kahler claims he should have been able to assert an insanity defense but wasn’t allowed to under Kansas law. Prior to 1996, Kansas had adopted the M’Naghten rule for an insanity defense. Under that rule "the defendant is to be held not criminally responsible (1) where he does not know the nature and quality of his act, or, in the alternative, (2) where he does not know right from wrong with respect to that act.” In 1996 Kansas adopted the mens rea approach which “allows evidence of mental disease or defect as it bears on the mental element of a crime but abandons lack of ability to know right from wrong as a defense.” In a 2003 case the Kansas Supreme Court rejected Kahler’s argument that the mens rea approach “violates the Due Process Clause because it offends a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
In Apodaca v. Oregon (1972) and Johnson v. Louisiana (1972), five Justices agreed that the Sixth Amendment requires unanimous jury verdicts in federal criminal cases. Five SCOTUS justices also agreed that jury verdicts in state criminal cases don’t have to be unanimous. In SCOTUS will consider overruling the latter holding in Apodaca and Johnson. Evangelisto Ramos was convicted 10-2 of second-degree murder based solely on circumstantial evidence and was sentenced to life in prison without the possibility of parole. Ramos argues that the 14th Amendment fully incorporates the Sixth Amendment’s guarantee of a unanimous verdict against the states. In Apodaca four SCOTUS justices, in an opinion written by Justice Byron White, looked at the “function served by the jury in a contemporary society” and rejected incorporation. Justice Lewis Powell, Jr., writing alone, adopted what Ramos describes as a “never-used-before-never-used-since theory of partial incorporation of the Sixth Amendment. Powell believed that the Sixth Amendment required unanimity at the founding, and in federal cases, but opined that the protections guaranteed by the Fourteenth Amendment were less than those offered by the Sixth Amendment.” Ramos argues that there has been “a sea change in constitutional exegesis” with regard to the application of the Bill of Rights to the states. According to Ramos, since Apodaca the court has focused on a constitutional right’s “historic origins” rather than its “functional purpose.” “The historical record is clear that unanimity was an essential component of what was conceived of when the Constitution referred to juries.” Ramos also argues that since Apodaca SCOTUS has “rejected the notion of partial incorporation or watered down versions of the Bill of Rights.”
In Bucklew v. Precythe SCOTUS ruled 5-4 that Missouri wasn’t required to execute Russell Bucklew using a drug he claimed would cause him less pain due to his unusual medical condition, cavernous hemangioma. Bucklew was sentenced to death for killing a neighbor who was sheltering his former girlfriend and her children after she broke up with Bucklew. Cavernous hemangioma causes tumors to grow in Bucklew’s head, neck, and throat. He claims that the sedative Missouri intends to use in its lethal injection protocol will cause him feelings of suffocation and excoriating pain due to his disease for a longer amount of time than the alternative drug he suggests. The Eighth Amendment disallows “cruel and unusual punishment.” SCOTUS held, in Glossip v. Gross (2015), that a state’s refusal to alter its lethal injection protocol may violate the Eighth Amendment if an inmate identifies a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” Bucklew first argued that he didn’t have to identify an alternative drug because his challenge wasn’t facial (applicable to all prisoners sentenced to death) but instead was only to the lethal injection protocol as applied to him. Justice Neil Gorsuch, writing for the majority of the court, disagreed noting that “Glossip expressly held that identifying an available alternative is ‘a requirement of all Eighth Amendment method-of-execution claims’ alleging cruel pain.” Bucklew ultimately identified nitrogen as an alternative drug. But the majority of the court rejected it for two reasons. First, Bucklew failed to demonstrate Missouri could execute him “relatively easily and reasonably quickly” using nitrogen. Second, according to the court, Missouri could legitimately refuse to switch drugs because nitrogen has never been used for an execution.
New Mexico may become the first state to introduce government-operated marijuana stores under HB 356, a bipartisan bill that passed the House in early March by a vote of 36-34. Although the state would run much of the retail business, the House-passed version would allow for the operation of private stores located more than 25 miles from state stores in the same county. Private license holders would also have the ability to cultivate and process cannabis products.
Ten states and D.C. have legalized recreational marijuana by ballot initiative. Vermont is the only state that did so via the legislative process, and the green mountain state continues to debate the authorization of commercial production and sales. Other legislative efforts to legalize recreational marijuana are underway in New York and New Jersey.
States like California, Connecticut, South Dakota and Wisconsin are closing or considering closing large juvenile facilities in their states. A recent report by the Council of Juvenile Correctional Administrators provides advice, resources and tools to help juvenile justice agencies close facilities responsibly. See NCSL’s Blog to learn how such resources can aide a smooth transition and ensure closures are a component of broader efforts to change juvenile justice systems.
Every year state lawmakers consider legislation impacting the criminal justice system. There has been an increased focus in recent years on changing sentencing schemes, primarily within felony classes. As states have shifted and modified felony offenses, they have recognized the need to adjust lower level offenses, such as misdemeanors, as well. This new web brief explores maximum misdemeanor penalties and looks at state legislative efforts to make modifications to these laws.
NCSL has released updated information on states that authorize law enforcement officers to issue citations requiring a defendant to appear in court in lieu of making a custodial arrest and requiring the officer to book the individual into jail and go through the pretrial release process. All states allow the use of citations for misdemeanor or petty offenses and at least eight states permit citations for some felonies.
Attempts to improve the juvenile justice system, especially regarding detention procedures, took another step forward with the latest reauthorization of the Juvenile Justice and Delinquency Prevention Act. The federal law, along with state efforts, aim to better meet the needs of at-risk youth by supporting evidence-based programs that reflect the science of adolescent development. Read more in NCSL’s April LegisBrief.
With lessons learned from the 2017 disasters, the Federal Emergency Management Agency (FEMA) has built on the information and policies included in the original Individuals and Households Program Unified Guidance (IHPUG) to develop an inclusive, single-policy resource for all Individual Assistance (IA) programs: the Individual Assistance Program and Policy Guide (IAPPG). This reference guide consolidates policies for all IA programs, including the Individuals and Households Program, Mass Care and Emergency Assistance, and the Community Services Program into one single document, and replaces the IHPUG as the primary reference resource for IA programs.
The IAPPG provides a comprehensive policy resource for state, local, territorial, and tribal governments, non-governmental partners, and other entities who assist survivors during disasters and with post-disaster recovery. Resources written specifically for disaster survivors can be found online at FEMA.gov.
The Federal Emergency Management Agency (FEMA) announced the revision of the Individual Assistance (IA) declarations factors, and accompanying “Individual Assistance Declarations Factors Guidance,” published in the Federal Register on March 21, 2019, with a June 1, 2019 effective date.
According to the agency, the intent of this final rule and accompanying guidance is to clarify independent factors used by states and territories when requesting an IA major disaster declaration. It describes FEMA’s evaluation process when recommending major disaster declarations authorizing IA to the president, ultimately speeding the declaration process.
The “Individual Assistance Declarations Factors Guidance” describes each of the declaration’s factors included in the final rule, and provides states and territories detailed direction in drafting requests for major disaster declarations authorizing IA.
In addition, a separate provision of the Sandy Recovery Improvement Act (SRIA), section 1110, amends the Stafford Act and allows federally recognized Indian tribal governments to submit emergency or major disaster declaration requests to the president. This final rule and guidance does not implement SRIA provision 1110’s authority except when a tribe requests to be part of the IA declaration request made by the state, and is intended only to meet the requirements of SRIA section 1109. For further information, FEMA’s Intergovernmental Affairs Division can be reached at (202) 646-3444.
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