Public Safety

Since his Presidency began President Trump has been rolling back (or trying to roll back) many of the actions of President Obama. Sometimes (at least in theory) it is easier (practically if not politically) to do this than other times.

The Deferred Action for Childhood Arrivals (DACA) program allowed undocumented persons who arrived in the United States before age 16 and have lived here since June 15, 2007, to stay, work, and go to school in the United States without facing the risk of deportation for two years with renewals available.  

DACA was established through a Department of Homeland Security (DHS) Memorandum during the Obama presidency. Getting rid of a statute requires action by Congress or the U.S. Supreme Court. Getting rid of regulations requires going through the Administrative Procedures Act lengthy notice-and-comment process. Getting rid of an agency memorandum requires issuing a superseding memorandum, which DHS has done.    

The Prison Litigation Reform Act (PLRA) states that when an inmate recovers money damages in a confinement conditions case “a portion of the judgment (not to exceed 25 percent)” shall be applied to his or her attorney’s fees award. The question the Supreme Court will decide in Murphy v. Smith is whether “not to exceed 25 percent” means up to 25 percent or exactly 25 percent.   

In April, North Dakota Gov. Doug Burgum signed into law a suite of bills that aims to curb the state’s correctional costs, reform its probation and parole systems, and increase access to community-based behavioral health programs. The enacted legislation (SB 2015, HB 1041 and HB 1269) was the product of a justice reinvestment study authorized two years ago by the North Dakota Legislative Assembly in response to the state’s rapidly growing prison population.

Between 2005 and 2015, federal data show, North Dakota’s prison population increased 34 percent — the second-largest rise, behind Indiana, among the 11 Midwestern states (see map). Without action, North Dakota’s prison population was projected to grow by 36 percent between 2016 and 2022, at a cost of more than $100 million for the state.

Last year, The Council of State Governments Justice Center and a bipartisan committee of North Dakota legislators and justice system officials conducted a comprehensive review of state data to determine the causes of this trend. Two populations, the study found, were driving nearly three-quarters of the state’s prison admissions: 1) people convicted of low-level, nonviolent crimes, and 2) individuals whose probation or parole had been revoked. Within these populations, drug abuse was a driving factor behind their imprisonment.

The practice of jailing people who cannot post cash bail or pay even minor fines is being revised in Nebraska and Illinois. 

Under LB 259, signed into law by Nebraska Gov. Pete Ricketts in May, people who fail to pay a fine in time will appear before a judge instead of automatically “sitting out” the fine in jail. Judges can choose to dismiss the fine or assign up to 20 hours of community service instead, and the rate for sitting out a fine would increase from $90 to $150 a day. The law also requires judges to consider a person’s ability to pay as one of several factors in setting bond.

Illinois Gov. Bruce Rauner signed the Bail Reform Act (SB 2034) into law in June.

Michigan legislators gave unanimous approval in July to a bill that sets statewide rules for the retention and release of footage captured on police body cameras. HB 4427, signed into law in July, takes effect in January. It requires evidentiary recordings to be kept by law enforcement for at least 30 days. Footage related to complaints against a police officer must be retained for three years; any recording that is part of an ongoing criminal investigation must be kept until completion of the legal case.

Iowans may be able to access their driver’s licenses via a smartphone app starting in 2018, the state’s Department of Transportation announced in May. According to The Des Moines Register, a pilot program involving about 100 state employees with state-issued iPhones was conducted in 2016 with MorphoTrust USA, a contractor that provides identity-related products and services, to test how real user data were used in a variety of situations.

In July the Department of Justice (DOJ) added two new requirements for states and local governments to receive federal Edward Byrne Justice Assistance Grants (Byrne JAG) for law enforcement funding. Chicago, San Francisco, and California have filed lawsuits against Attorney General Jeff Sessions arguing that these new requirements are unlawful. Chicago argues that another requirement added earlier is unlawful as well.    

Congress created Byrne JAG in 2005 to provide “flexible” funding for state and local police departments. In April 2017 DOJ required Chicago (and eight other jurisdictions) to provide documentation that it complies with 8 U.S.C. 1373, which prohibits states and local governments from restricting employees from sharing immigration status information with federal immigration officials.

In July 2017 DOJ added a “notice” and an “access” requirement to receive Byrne JAG funds. Recipients must now (1) provide 48 hours advance notice to the Department of Homeland Security (DHS) regarding the scheduled release of “aliens” and (2) allow access to correctional or detention facilities to meet with “aliens” and inquire about their right to be in the United States.