Key Federal Legislation, Policy and Appropriations
Byrne JAG Legislation
Congress passes legislation authorizing programs for a set period of years. These authorization periods often expire before a renewal, or reauthorization, bill is passed. This is the case with the Byrne Justice Assistance Grant (Byrne JAG) program and most other justice assistance grant programs. Byrne JAG expired at the end of the 112th Congress. Most of the other grant programs have been expired for far longer. In nearly every case, the House and Senate Appropriations Committees continue to fund expired programs in the annual appropriations bills.
The House passed a Byrne JAG reauthorization bill in the 112th Congress but it never advanced in the Senate. The bill, H.R. 6062, by Rep. Tom Marino (R-PA), would have extended the Byrne JAG program for five years, through FY17, at a maximum authorized level of $800 million annually. Although this would have been a drop from the current authorization of $1.095 billion, it is significantly above the most recent annual appropriated level of $347 million in FY16. House rules make it virtually impossible to reauthorize any grant programs. The so-called “pay-go” and “cut-go” rules require any spending above current appropriated and authorized levels to be offset by other, current spending. Finding an offset of even several million dollars can be difficult; finding an offset for tens or hundreds of million dollars is nearly impossible.
The stakeholder community stands ready to work on a Byrne JAG reauthorization bill whenever appropriate. NCJA coordinated a stakeholder letter of support in 2012 for reauthorizing the Byrne JAG program that was signed by 39 national criminal justice stakeholder groups. View the House and Senate letters.
NCJA has long supported several adjustments to the Byrne JAG program whenever it is reauthorized. One of those changes was included in the Justice for All Act reauthorization bill, which passed Congress in November 2016. (See information about Justice for All, also in this section). The bill requires SAA’s to conduct statewide strategic planning using a community engagement model involving the broadest range of stakeholders in the states. Another change to Byrne JAG supported by NCJA include raising the threshold for the BJA direct awards from $10,000 to $50,000 or higher to ease the administrative burden on the federal agency and improve coordination with the state’s Byrne JAG formula grant awards.
Byrne JAG Penalty Bills
In recent years, Congress has enacted several pieces of legislation for which the penalty for noncompliance is a reduction in a portion of a state or territory’s Byrne Justice Assistance (Byrne JAG) grant.
The Sex Offender Registration and Notification Act (SORNA) is Title I of the Adam Walsh Child Protection and Safety Act of 2006 (Public Law 109-248). It established a mandatory 10 percent penalty on states and territories not substantially implementing SORNA. To date, only 17 states, three territories, and 95 tribes have substantially implemented SORNA's requirements, and the first penalties were levied on the FY12 Byrne JAG
awards. Learn more about SORNA and the Byrne JAG penalty.
The Prison Rape Elimination Act of 2003 (Public Law 108-79) requires a five percent penalty against any federal grant program that states would “otherwise receive for prison purposes," a term left undefined in statute. DOJ interpreted this to mean some of the grant programs eligible to be used for prison construction, administration or programming, which DOJ identified as the Byrne Justice Assistance Grant program, the Juvenile Justice and Delinquency Prevention Act’s Title II formula grants, and the Office on Violence Against Women’s STOP grants. Because the original statute did not anticipate the system of audits established in the rule-making, states could not accomplish the tasks necessary to come into compliance before the penalties were set to take effect. Therefore, nearly every state was penalized five percent of the three grant programs in FY14, FY15, and FY16. The Justice for All Act (JFAA), which passed Congress and was signed into law in December 2016, made several changes to PREA to fix this problem. In brief, the JFAA: exempts the STOP grants from future penalties; suspends the penalties on most states for three years, holding the penalty funds in abeyance for that time; and ends the assurance option by a date certain. Learn more about PREA and the penalties for noncompliance.
The NICS Improvement Amendments Act of 2007 (Public Law 110-180) governs administration of the National Instant Criminal Background Check System (NICS) run by the Federal Bureau of Investigation (FBI). States are required to digitize and upload all criminal records into the national database in stages according to a timetable established by the Act. Failure to meet the deadlines could trigger a Byrne JAG penalty at the discretion of the Attorney General.
Reporting Deaths in Custody
More recently, the Deaths in Custody Reporting Act of 2013 (Public Law 113-242) authorizes the Attorney General to levy a penalty against Byrne JAG for failure to report on the deaths of arrestees or inmates in state or local custody. The Obama Administration issued draft guidance for how it would collect open source information and collect information from states and local governments.
NCJA and a broad coalition of stakeholder groups oppose the use of Byrne JAG as a penalty for noncompliance with unrelated federal mandates because it means the withdrawal of strong, evidence-based programs and initiatives from the field which often are the very programs that work to prevent the crime from occurring in the first place.
In March 2014, NCJA and other stakeholder organizations signed onto a letter to Congress arguing against the future use of Byrne JAG as penalty.