Criminal Law Newsletter August 2017

The following is a compendium of news reports over the past month that may be of interest to our AG offices who are involved with criminal law issues. Neither the National Association of Attorneys General nor the National Association of Attorneys General Training & Research Institute expresses a view as to the accuracy of news accounts, nor as to the positions expounded by the authors of the hyperlinked articles. 

Policy

The opioid epidemic has garnered significant attention across the country, as have the various efforts to address it. In regard to one such effort, Attorney General Sessions announced the creation of an Opioid Fraud and Abuse Detection Unit. The pilot program seeks to make use of data to combat the crisis. A part of the program will fund twelve experienced Assistant United States Attorneys for a three year term to focus solely on investigating and prosecuting health care fraud related to prescription opioids, including pill mill schemes and pharmacies that unlawfully divert or dispense prescription opioids for illegitimate purposes. The twelve districts to receive the additional assistance are: Middle District of Florida, Eastern District of Michigan, Northern District of Alabama, Eastern District of Tennessee, District of Nevada, Eastern District of Kentucky, District of Maryland, Western District of Pennsylvania, Southern District of Ohio, Eastern District of California, Middle District of North Carolina, and Southern District of West Virginia.

The President's Commission on Combating Drug Addiction and the Opioid Crisis has issued a preliminary report calling upon the President to “declare a national emergency under either the Public Health Service Act or the Stafford Act” concerning opioid drug overdose deaths. The preliminary report lays out a number of possible policy and action items for consideration.

In addition, the President has directed the federal administration to use all appropriate authority to respond to the opioid emergency. The pronouncement comes in the wake of the creation of the Opioid Fraud and Abuse Detection Unit

Enforcement

The U.S. Justice Department continue to aggressively prosecute transnational criminal organizations.  The Department is working in partnership with the Department of State, Department of Homeland Security, and the Office of the Director of National Intelligence in carrying out Executive Order 13773.

Federal prosecution of unlawful possession of a firearm is up almost 23 percent during the second quarter of 2017 over the same period last year. The number of defendants charged with the crime of using a firearm in a crime of violence or drug trafficking increased by 10 percent. U.S. Attorney General Sessions has prioritized federal gun prosecution

Black marketeering exists within Colorado’s marijuana industry. A Colorado Springs shop is alleged to have illegally distributed about 200 pounds of marijuana. "They are alleged to have conspired to purchase medical marijuana from licensed facilities and then resell it for profit under the guise of the marijuana being offered as a free giveaway with the purchase of a low-cost item at a dramatically inflated price," said Colorado Attorney General Cynthia Coffman.

Legislation

New federal legislation establishes a system for integration of Rapid DNA instruments for use by law enforcement. Rapid DNA is a new technique that can analyze DNA samples in about 90 minutes, instead of days or even weeks as it took previously. The Rapid DNA Act establishes a system for Rapid DNA’s nationwide coordination among law enforcement departments by connecting it to the FBI’s Combined DNA Index System. The measure was signed into law August 18, 2017.

Other News of Interest

The U.S. Department of Justice is reviving work on federal standards for forensic expert testimony. The department has previously issued draft guidance covering seven forensic disciplines, including drug and chemical analysis, body fluid testing, latent fingerprints, and toxicology. And it was slated to apply to employees at the FBI, the Drug Enforcement Administration, and the Bureau of Alcohol, Tobacco, Firearms and Explosives. A forensic science working group will seek to set uniform standards on testimony.

The American Bar Association House of Delegates approved several criminal justice resolutions at its annual meeting in New York City. The ABA Criminal Justice Section sponsored or co-sponsored a number of resolutions:

Resolution 112C urges governments to adopt policies and procedures that favor release on personal recognizance bonds or unsecured bonds and that permit cash bonds only after a court determines that the financial condition is the only way to assure appearance. The resolution also states that pretrial detention should never occur solely because of an inability to pay and that “bail schedules” that consider only the nature of the offense should not be used.

In addition, the ABA has filed an amicus brief calling one Texas county’s bail system unconstitutional. The brief was filed in O’Donnell v. Harris County, Texas, a case pending in the 5th U.S. Circuit Court of Appeals. Plaintiffs in the case argue that Harris County’s use of a bail schedule—a list of crimes with corresponding bail amounts—is unconstitutional because it effectively conditions freedom on the defendant’s ability to pay.

Resolution 112D urges governments to bar the use of bail and bond in juvenile cases, to use objective criteria for pretrial release that doesn’t have a discriminatory impact, and to use the least restrictive conditions of release that protect public safety and assure likely appearance in court.

 Resolution 112E calls for the adoption of laws and policies that ban solitary confinement for youths who are under age 18.

Resolution 112F urges adoption of laws that allow expungement of criminal records for charges or arrests that didn’t result in a conviction.

Resolution 112G calls for laws allowing the expungement of convictions or statutory violations for actions in public spaces that are associated with homelessness.

In addition, the House of Delegates approved a resolution regarding mandatory minimum sentences. Resolution 10B opposes the imposition of mandatory minimum sentences in any criminal case and calls on Congress and state legislatures to repeal laws requiring mandatory minimums and to refrain from adopting such laws in the future.

Gun violence was also addressed at the meeting. Resolution 118B urges state and local governments to enact laws and regulations authorizing courts to issue gun violence restraining orders, including ex parte orders that do not require the presence of the targeted person.

One matter scheduled for discussion by the ABA’s Criminal Justice Section was withdrawn for further consideration. The Criminal Justice Section Council voted to remand discussion on post-conviction standards to the Standards Committee. Five individual members of the NAAG Criminal Law Committee (Alabama, Hawaii, Louisiana, Mississippi and Rhode Island) had filed written comments to the proposed standards noting a number of concerns with the proposal. The National District Attorneys Association joined in support of the letter during the meeting. NAAG subsequently sent a letter signed by 38 attorneys general in support of the memo expressing the concerns. 


Mark Neil is the Editor of Criminal Law Newsletter and may be reached at 202-326-6019. The Criminal Law Newsletter is a publication of the National Association of Attorneys General (NAAG). Any use and/or copies of this newsletter in whole or in part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail mneil@naag.org.

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