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. These include penalties related to SORNA, PREA, NICS and reporting deaths in custody.
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Sex Offender Registration and Notification (SORNA)
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.
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Learn more about SORNA and the Byrne JAG penalty.
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Prison Rape Elimination Act (PREA)
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.
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.
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Death in Custody Reporting
More recently, the Death 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.
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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.
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In March 2014, NCJA and other stakeholder organizations signed onto a letter to Congress arguing against the future use of Byrne JAG as penalty.