Criminal Law Newsletter February 2018
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.
The US Drug Enforcement Agency is conducting a surge focusing on pharmacies and prescribers who are dispensing unusual or disproportionate amounts of drugs. DEA is aggregating and analyzing data from the approximately 80 million transaction reports it collects each year from prescription drug manufacturers and distributers to identify patterns and trends that can be used to identify potential targets.
The Justice Department has announced that Mary Daly will serve as the Director of Opioid Enforcement and Prevention Efforts. This new position was created in December 2017. She will be responsible for assisting in formulating and implementing DOJ initiatives, policies, grants, and programs relating to opioids, and coordinating these efforts with law enforcement.
The DOJ has announced is budget proposal for fiscal year 2019. The stated priorities within their discretionary budget are (1) national security; (2) violent crime; (3) immigration: and (4) the opioid epidemic. A total of $28 Billion is budgeted for discretionary matters.
Within priority programs, the funding is sought as follows:
- Reducing violent crime
- Project Safe Neighborhoods - $140 Million
- Public Safety Partnership (formerly VRN) - $5 Million
- Byrne Justice Assistance Grants (JAG) - $402 Million
- Bulletproof Vest - $22.5 Million
- Body Worn Cameras - $22.5 Million
- VALOR Initiative - $15 Million
- Community Oriented Policing Services (COPS) Hiring Program - $99 Million
- Community Policing Development activities - $5 Million
- Collaborative Reform - $5 Million
- Strategies for Policing Innovation (formerly Smart Policing) - $5 Million
- Regional Information Sharing Systems - $10 Million
- COPS Tribal Law Enforcement - $10 Million
- Second Chance Act - $58 Million
- Opioid Epidemic
- Comprehensive Opioid Abuse Program (COAP) - $20 Million
- Drug Courts - $43 Million
- Veterans Treatment Courts - $6 Million
- Residential Substance Abuse Treatment - $12 Million
- Justice and Mental Health Collaborations - $10 Million
- Prescription Drug Monitoring Program - $12 Million
- Victims of Crime
- Crime Victims Fund - $1.814 Billion
- Violence Against Women Act (VAWA) - $485.5 Million
- Human Trafficking - $45 Million
- Programs eliminated
- Capital Litigation Improvement Grant Program
- Comprehensive School Safety Initiative
- Forensic Sciences
- Innovative Prosecution Solutions (formerly SMART Prosecutions)
- Justice Reinvestment Initiative
In terms of reorganization, the ATF will focus on violent crimes, with alcohol and tobacco enforcement handled at Treasury. HIDTA is moved to the DEA. The COPS state and local law enforcement grants have been consolidated with Office of Justice Programs. OJP will provide a shared service provider to support grant management.
A summary of the breakdown may be found at: https://www.justice.gov/file/1033196/download
The DOJ has announced policies to advance forensic science at the American Academy of Forensic Sciences 70th Annual Scientific Meeting in Seattle, WA. The new guidance implements additional quality assurance measures based on science-informed practices, enhances forensic capacity and efficiency, and increases coordination and collaboration between the Department and state, local, and federal partners. Included in the policies are approved Uniform Language for Testimony and Reports used by DOJ forensic examiners, testimony monitoring practices to ensure testimonial consistency and accountability, public posting of current quality management system documents and summaries of internal validation studies online, and re-chartering of the Council of Federal Forensic Laboratory Directors.
San Francisco District Attorney George Gascon has announced the reduction or dropping of thousands of criminal convictions for marijuana dating back decades by retroactively applying California’s marijuana-legalization laws to past criminal cases. The office will dismiss and seal more than 3,000 misdemeanor marijuana convictions dating back to 1975. They will also review almost 5,000 felony cases.
A new Cybersecurity Task Force has been created at the DOJ. The task force will canvass the many ways in which the DOJ is combatting the global cyber threat and identify how federal law enforcement can more effectively accomplish its mission in this area.
Thirty-six defendants have been indicted for their alleged roles in transnational criminal organization responsible for more than $530 Million in losses from cybercrimes. The federal indictment alleges the 36 participated in the Infraud Organization, an Internet-based cybercriminal enterprise engaged in large-scale acquisition, sale, and dissemination of stolen identities, credit cards, personal information, financial information, computer malware, and more. Under the slogan “In Fraud We Trust,” the organization directed traffic and potential purchasers to automated vending sites of its members. It also provided an escrow service to facilitate digital currency transactions.
The Department of Justice spearheaded the largest coordinated sweep of elder fraud cases in U.S. history. Involving law enforcement officials in all 50 states, the sweep netted more than 250 targets. The targets are alleged to have defrauded over a million older Americans out of $500 million. The fraud involved IRS fraud, mass-mailings announcing lottery winnings, and telephone calls to trick seniors into believing their grandchildren were in trouble and needed money.
The National Association of Attorneys General is endorsing federal legislation known as the Clarifying Lawful Overseas Use of Data (CLOUD) Act. It would confirm law enforcement’s ability to obtain probable-caused based warrants to search an individual’s email or other online account when the information is stored on a server outside the United States. The CLOUD Act would update and amend the Stored Communications Act (SCA). A copy of the sign-on letter endorsing the legislation may be found on the NAAG website
The Protecting Young Victims from Sexual Abuse and Safe Sport Authorization Act has been signed into law by the President. The Act amends the Victims of Child Abuse Act of 1990 to extend the duty to report suspected child abuse, including sexual abuse, to certain adults who are authorized to interact with minor or amateur athletes at a facility under the jurisdiction of a national governing body. The Act, among other things, also amends the federal criminal code to revise civil remedy provisions for a victim of a human trafficking offense or federal sex offense.
The American Bar Association has announced its support for several pieces of legislation currently before Congress. These include reauthorizations of both the Juvenile Justice and Delinquency Prevention Act and the Second Chance Act, as well as the Sentencing Reform and Corrections Act of 2017 The Sentencing Reform bill reduces reliance on mandatory minimum sentences for low-level drug offenders and contains provisions to create a National Criminal Justice Commission.
The United States Supreme Court has held that a guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of his statute of conviction on direct appeal. The 6-3 decision in Class v. United States, No. 16-424, decided February 21, 2018, dealt with a conviction for possession of a firearm on U.S. Capital grounds while locked in a parked vehicle. The defendant claims the statute in this matter violates the Second Amendment. The plea agreement setting forth the terms of the plea listed several rights the defendant agreed to waive, but the right to challenge on direct appeal the constitutionality of the statute was not included.
Other Items of Interest
The FBI has released preliminary 2017 data on crime in the United States. The report covers the time period of January through June of 2017 and, according the DOJ, suggest that violent crime levels that increased in 2015 and 2016 have begun to level off. The number of violent crimes decreased by 0.8 percent during the period covered by the report, compared to increases of 3.3 percent and 3.4 percent for the same time periods in the previous years.
U.S. Attorney General Jeff Sessions has announced a new resource to help federal law enforcement disrupt online illicit opioid sales. The Joint Criminal Opioid Darknet Enforcement (J-CODE) team will serve as an online resource to aid in fighting online drug trafficking, particularly targeting synthetic opioids like fentanyl that are often purchased online and shipped from overseas. The program will unite the FBI and DEA with drug trafficking task forces, health care fraud investigators and others.
The Treasurer and Attorney General of California have proposed a plan to create a public bank for legal marijuana businesses. Generally, banks will not provide accounts to these businesses because of federal prohibitions, forcing them to deal strictly in cash – including paying taxes and other expenses. A feasibility study will be undertaken to determine how to proceed.
The American Bar Association has adopted a number of resolutions on a wide range of policy matters. Resolutions related to criminal matters include the following:
· 108A – urging laws and policies regarding the use of solitary confinement for detainees
· 108B – urging rights and procedures for individuals to challenge forensic evidence used to obtain their conviction
· 108C – urging limited use of mandatory minimum sentencing and prohibiting its use to secure plea agreements
· 108D – urging prohibition of discrimination against jurors on the basis of sexual orientation or gender identity
· 111 – urging each death penalty jurisdiction not to execute or sentence to death anyone who was 21 years or younger at the time of the offense
· 114 – urging governments to provide legal counsel as a matter of right at public expense to low-income persons in all proceedings that may result in a loss of physical liberty
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 firstname.lastname@example.org.