8 minute read
Legal Corner
Arkansas officials act swiftly against federal withholding of drug task force funds
Gov. Asa Hutchinson announced in early March that he will be releasing $600,000 in Rainy Day funding for Arkansas’ 20 intergovernmental drug task forces, a move later approved by the Joint Budget Committee of the General Assembly in response to an unforeseen halt of federal dollars that had been funding the task forces. The Edward Byrne Memorial Justice Assistance Grant (JAG) Program was created in 2004 to help state and local governments work cooperatively in addressing illegal drug sales and related crime. Made up of employees of local sheriffs, police chiefs, and prosecutors, Arkansas’ drug task forces rely on the Byrne JAG grant to pay for necessary equipment, administrative salaries, and operational expenses. For Fiscal Year 2017, which runs from July 1, 2017 to June 30, 2018, Arkansas was eligible for over $2 million in Byrne JAG funding.
Drug task forces across the country have been routinely receiving these funds for over a decade now with little interference from federal officials until recently. The halt of grant money comes as a result of a deep-seated battle over immigration policy and places that have come to be known as “sanctuary cities.” The term refers to localities that have refused to cooperate with Department of Homeland Security Immigration and Customs Enforcement (ICE) officials as required by new federal regulations.
In July, U.S. Attorney General Jeff Sessions announced new Department of Justice (DOJ) regulations that would require states or local jurisdictions that seek federal funding to cooperate with federal immigration agents. Specifically, agencies seeking funding must give ICE officials notice when illegal immigrants are nearing release from custody, allow ICE agents access to local jails, and give ICE 48 hours’ notice “where practicable” before a person that ICE agents suspect is an illegal immigrant is released from custody. Sessions announced that those agencies applying for Fiscal Year 2017 Byrne JAG funding in September 2017 must meet these new requirements.
In response, the City of Chicago filed a lawsuit in the U.S. District Court for the Northern District of Illinois in August 2017. The lawsuit alleges that the new requirements for Byrne
JAG funding applicants are contradictory to the statute establishing the grant, the constitutional separation of powers, and also “would undermine public safety and effective policing in the City ... .” On Sept. 15, the court issued a partial injunction stating that the DOJ under Attorney General Sessions had exceeded the authority conferred by Congress with its notice and new “access conditions” to 2017 Byrne JAG applicants. However, the court upheld Sessions’ authority to require a certificate of compliance “with all other applicable federal laws” from all applicants. Sessions immediately appealed the lower court’s ruling to the Seventh Circuit Court of Appeals, and Drug task forces across the country have been routinely receiving these funds for over a has since withheld all Fiscal Year 2017 Byrne JAG awards, whether the recipients were found to decade now with little interference from federal of- be incompliant with the DOJ’s new regulations or ficials until recently. not. Additionally, in January, The DOJ issued a press release revealing that it had sent a letter to 23 states or localities, including the City of Chicago, demanding that they provide proof of compliance with 8 U.S.C. 1373, the federal statute “that promotes information sharing related to immigration enforcement and with which compliance is a condition of FY2016 and FY2017 Byrne JAG awards,” or be subject to federal subpoena, potentially losing, or even having to pay back some Byrne JAG funding. Meanwhile, the Fiscal Year 2017 Byrne JAG funding that Arkansas task forces expected to receive and that both the Arkansas Governor and General Assembly relied on when passing budgets is being held up amid the litigation. Drug task forces across the state have held meetings to discuss the uncertainty the task forces face when the Byrne funds inevitably dry up. No other source of state revenue is available to keep these task forces operational, and local jurisdictions certainly do not have the extra money budgeted to supplement the task forces administrative and operational costs. In response to this uncertainty, and the detriment that the state could face if the drug task forces were forced to shut
LINDSEY BAILEY General Counsel
down, Arkansas leaders have reacted swiftly and unequivocally. U.S. Sen. John Boozman from Arkansas’ Third Congressional District in Northwest Arkansas authored a bipartisan letter to Attorney General Sessions asking him to lift the hold on the Fiscal Year 2017 funding for states that are in compliance with the DOJ’s new regulations, including the over $2 million in funding for which Arkansas is eligible. The letter states, “[t]he Department’s decision to withhold all FY17 Byrne JAG awards has left out states short of the resources they need to be a partner with the federal government on shared law enforcement responsibilities,” and adds, “[w]ith increased efforts to combat the opioid epidemic, Byrne JAG funding for local law enforcement is more important than ever.” An April 17 press release from Sen. Boozman’s office references a recent meeting in Washington where Arkansas Drug Director Kirk Lane said Arkansas drug task forces’ ability to carry out their duties had been compromised by the withholding, noting that the money would inevitably be gone this spring. Absent new funding, the task forces would effectively be put out of business.
In response, Gov. Asa Hutchinson announced on March 7 that he would be releasing $600,000 in Rainy Day funds to Arkansas drug task forces, which the Joint Budget Committee of the General Assembly approved. Gov. Hutchinson called this one-time funding “a needed lifeline to law enforcement until the federal funding issues can be fixed.” At a sit-down meeting with the press on April 16, the Governor reiterated the importance of releasing those funds to keep the task forces in operation. When asked if any other Rainy Day funds would be released, the Governor replied that he remained hopeful that the DOJ would do the right thing and release Fiscal Year 2017 funding to the jurisdictions in compliance with current DOJ regulations, including Arkansas, but that if no action was taken, Arkansas would have to come up with some money to keep the task forces afloat. To date, the DOJ has not released any other funding.
The Seventh Circuit’s three-judge panel issued a ruling in Chicago v. Sessions on April 19 unanimously upholding the lower court’s partial injunction against the DOJ’s efforts to require cooperation with ICE officials as a condition to receiving Byrne JAG funding. However, one judge did issue a dissenting-in-part opinion on the lower court’s nationwide injunction against the federal government, as opposed to protecting only Chicago. Similar injunctive rulings have been issued in Philadelphia, San Fransisco, and Los Angeles. At the time of this article, it was not clear if the DOJ would continue to withhold funds and appeal the Chicago lawsuit further, release the 2017 Byrne JAG funds in whole or in part, or take some other action.
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