By Rhea Arledge

The 109th Congress — First Session1

The First Session of the 109th Congress began on January 4, 2005, and ended before the holiday recess. Following is a brief discussion of the status of just a few of the more important bills that may impact state and local prosecutors. All bills not acted on during the First Session of this Congress remain alive during the Second Session of the 109th Congress (January 2006–December 2006).

Funding

At the time that this article was prepared all but two of the appropriations bills had been enacted. The two remaining bills were appropriations for the Departments of Labor, Health and Human Services, and Education and appropriations for the Department of Defense.

FY 2006 Appropriations for the Department of Justice
H.R. 2862, Department of Justice Appropriations Act, 2006, was signed into law (Public Law No. 109-108) on November 22, 2005. Of notable importance, the National Advocacy Center received an earmark of $4.5 million from the $15 million that was appropriated for the Project Safe Neighborhoods program funded under Community Oriented Policing Services. In addition, the American Prosecutors Research Institute’s National Center for Prosecution of Child Abuse received an earmark of $1.4 million for specialized technical assistance and training programs to improve the prosecution of child abuse cases, as authorized by Section 214a of the Victims of Child Abuse Act of 1990 (VOCA). Public Law No. 109-108 can be reviewed at http://thomas.loc.gov/cgi-bin/query/F?c109:1:./temp/~c1093Qh8VR:e880.

The funding levels approved for other areas of interest to local prosecutors are as follows.

State And Local Law Enforcement Assistance

Byrne Memorial/Justice Assistance Grants (JAG)
Public Law No. 109-108: $416.5M (Discretionary Grants $191.7M)

Drug Courts
Public Law No. 109-108: $10M

State Criminal Alien Assistance Program (SCAAP)
Public Law No. 109-108: $405M

Capital Litigation Improvement Grants
Public Law No. 109-108: $1M

Southwest Border Prosecutors
Public Law No. 109-108: $30M

Juvenile Justice Programs
Public Law No. 109-108: $342.7M

Juvenile Accountability Incentive Block Grants (JABG)
Public Law No. 109-108: $50M

JJDP Title V At Risk Children, Gang Prevention Component
Public Law No. 109-108: $25M

Violence Against Women Prevention And Prosecution Programs
FY06 Conference Report: $386.5M

Community Oriented Policing Services (COPS)
Public Law No. 109-108: $478.3M

Project Safe Neighborhoods
Public Law No. 109-108: $15M ($4.5M earmarked for NDAA training at the National Advocacy Center)

DNA Programs
Public Law No. 109-108: $108.5M (+$18.5M for Coverdell Forensic Grants)

Anti-Gang Initiative (See also Juvenile Justice Programs Section)
Public Law No. 109-108: $40M

State Child Support Enforcement Programs

FY06 Appropriations for Department of Health and Human Services
Due to a House vote to reject the Conference Report on H.R. 3010, the appropriations bill for the Departments of Labor, Health and Human Services, and Education, and Related Agencies, was returned to the conference committee for resolution of the differences. On December 12, the conferees approved a second conference report and the report was accepted by the full House on December 14. At the time of this writing, there was a possibility that the final report would be passed by the Senate before the holiday recess, and a third continuing resolution for this session might have been necessary to fund the department had it not done so.

This appropriation is an area of great concern to many prosecutors because of the importance of federal support for state child support enforcement programs. While the conference report was not agreed to by the House, both the House and Senate reports recommended reducing the appropriations for these purposes by approximately $752 million from the appropriation levels for FY2005. As a result, it was likely that the conference report would ultimately reflect this reduction.

While the appropriations have been reduced, it does appear that the total amount of the funding for the programs may be approximately $1.2 million more than was provided in FY2005. This would result from the addition of the advanced funding of $1.2 billion appropriated in last year’s bill; $208 million from offsetting collections; and $740.2 million in estimated carryover funds to the FY2006 appropriations.

2005 Budget Reductions
H.R. 4241, Deficit Reduction Act of 2005 and S.1932, Deficit Reduction Omnibus Reconciliation Act of 2005
The House and Senate passed their respective bills on government spending reduction. Unfortunately the current proposal under H.R. 4241 could adversely impact the amount of federal funding for state child support enforcement programs by reducing the amount of federal reimbursement to the states by approximately 24 percent by FY2010.

S.1932, however, explicitly states that the amount of federal reimbursement to the states would not be reduced below the levels of the current law. As a result, both chambers are working on a reconciliation bill and it was anticipated that this would have been completed before the holiday recess.

Student Loan Forgiveness

As anticipated, S. 2039, Prosecutors and Defenders Incentive Act of 2005, was introduced by Senator Durbin (D-IL) on November 17. The bill was referred to the Committee on the Judiciary and, given the busy agenda for the remaining days of the session, no movement was anticipated until next year.

Senator Durbin introduced legislation similar to S.2039 in previous Congresses. This bill, however, will be the first time that Senators Specter (R-PA), Leahy (D-VT) and Kennedy (D-MA) have signed on to the bill as co-sponsors. With all three senators having formerly been local prosecutors, the prospects for the bill are much improved. In addition to the National District Attorneys Association, the American Bar Association, the National Association of Prosecutor Coordinators, the National Legal Aid and Defender Association, and the American Council of Chief Defenders are supporters of this legislation.

The key provisions of S. 2039 include:

• The establishment within the Department of Justice of a program for the repayment of student loans for attorneys who agree to remain employed, for at least three years, as local prosecutors or state, local, or federal public defenders. Eligible attorneys may receive student loan debt repayments of up to $10,000 per year, with a maximum aggregate payment of $60,000 per borrower.
  
  
• The eligibility for repayment for qualified attorneys would be on a “first-come, first-served” basis and conditioned on the availability of appropriations. Borrowers who received repayment benefits in the preceding fiscal year and have completed less than three years of the first required service period would be given priority. 
  
  
• The option for borrowers to enter into additional agreements, after the required three-year period, for a successive period of service.
  
  
• Coverage for those student loans made, insured or guaranteed under the Higher Education Act of 1965, including consolidation loans. 

In addition to signing on as a co-sponsor to Senator Durbin’s bill, earlier in the session Senator Kennedy introduced a bill providing for an income contingent repayment plan for public sector employees. S. 371, the College Quality, Affordability, and Diversity Improvement Act of 2005, was introduced in February and referred to the Committee on Finance. This plan requires ten years of service before repayment will be made by the government for student loan payments made by prosecutors over those ten years.

Interestingly, S. 371 was added to S. 1932, the Deficit Reduction Reconciliation Omnibus Act of 2005, which was anticipated to be completed within the remaining time left in the session. The House amendment to S. 1932 also contains a provision for student loan forgiveness for those persons employed in “areas of national need.” The legislation specifies certain occupations that qualify as areas of national need (i.e. nurses, librarians, foreign language specialists). While prosecutors are not enumerated, the language of the bill leaves open the possibility that the secretary of Education can designate an occupation as such if a series of conditions are met.

In the House the student loan bill introduced by Congressman Scott (D-GA), H.R. 198, is currently in the House Education Committee, Subcommittee on 21st Century Competitiveness. This particular bill would restrict the repayment of student loans to $6,000 per year and cap the aggregate payment to a prosecutor at $40,000.

Methamphetamine Related Legislation

Prior to December 8, 2005, S. 103, the Combat Meth Act, sponsored by Senators Talent (R-MO) and Feinstein (D-CA) was a stand-alone bill after being removed from the appropriations bill for the Department of Justice during negotiations in early November. Similarly, H.R. 3889, the Methamphetamine Epidemic Elimination Act, sponsored by Representative Mark Souder (R-IN), also became a stand-alone bill again after its inclusion in a tentative agreement on the Patriot Act Reauthorization, which was never finalized.

On December 8, provisions from both the Combat Methamphetamine Act and the Methamphetamine Epidemic Elimination Act were incorporated into the Conference Report on the Patriot Act Reauthorization as the Combat Methamphetamine Epidemic Act of 2005. On December 14, the House of Representatives voted to accept the final conference report and the Senate was expected to vote on December 16.

With a majority of state legislatures having enacted restrictions on the sale and purchase of ephedrine and pseudoephedrine during the 2005 legislative session, NDAA has stressed the importance of state laws tailored to address individual state needs and opposed the federal preemption of more restrictive state laws on precursor chemicals.

The legislation will, in part:

• Restrict the sale of products containing pseudoephedrine, ephedrine and phenylpropanolamine to 3.6 grams of the base chemical to the same purchaser within a 24-hour period;
  
  
• Restrict the sale of products containing pseudoephedrine, ephedrine, and phenylpropanolamine to 7.5 grams within a 30-day period for mail order and mobile retail vendors;
  
  
• Restrict the purchase of products containing pseudoephedrine, ephedrine and phenylpropanolamine to nine grams within a 30-day period;
  
  
• Mandate that non-liquid forms of products containing ephedrine, pseudoephedrine, and phenylpropanolamine be sold in blister packs containing not more than two dosage units;
  
  
• Require that pseudoephedrine/ephedrine/phenylpropanolamine-containing products be stored behind the counter or in a locked cabinet if displayed in areas accessible by customers; mobile retail vendors must store products in a locked display case;
  
  
• Require purchasers of the products to present a photograph identification, sign a log book, and enter the date and time of the sale; require the sellers to verify identification, date and time of transaction, and enter the name of product and quantity sold into the electronic or written logbook, which must be maintained for two years;
  
  
• Provide an additional $99 million through FY2010 to state and local law enforcement for Meth Hot Spots programs;
  
  
• Provide $20 million for FY2006 and FY2007 for Drug Endangered Children rapid response teams;
  
  
• Increase criminal penalties for production of and trafficking in methamphetamine; and
  
  
• Require reporting and certification procedures for those countries exporting and importing pseudoephedrine/

ephedrine and phenylpropanolamine

The conference report does not classify ephedrine, pseudoephedrine, and phenylpropanolamine as Schedule V controlled substances. However the report does provide that products containing these substances shall be “scheduled listed chemical products.”

The new restrictions on the quantities of the products that may be sold and purchased will take effect 30 days from the date of enactment of the law. Remaining restrictions on the location of the products, the purchase procedure, and log book requirements will take effect on September 30, 2006.

Secure Access to Justice and Court Protection Act

H.R. 1751, the Secure Access to Justice and Court Protection Act of 2005, passed the House 375-45 on November 9.

Section 20 of the bill (Flight to Avoid Prosecution for Killing Peace Officers) is of concern because it has the potential to interfere with meaningful local prosecutions. The federalization of this crime would permit a federal prosecutor to negotiate the extradition of a foreign national for the murder of a state/local law enforcement officer by agreeing to a “term of years” sentence in lieu of the death penalty or a sentence of life imprisonment, without the express consent of a state or local prosecutor. The language requires only consultation with the state or local prosecutor. Such agreements would result in punishments that will be far less than the sentences provided by state law and, for all intents and purposes, will preclude meaningful prosecutions by local jurisdictions. The bill is currently in the Senate Judiciary Committee.

The language of Section 20 is the same language that appears in H.R. 2363, Justice for Peace Officers Act (sponsored by Representative Dreier (R-CA) with 23 co-sponsors). NDAA has adopted a resolution opposing the language of H.R. 2363 and President Paul Logli, on behalf of the association, has sent a letter to Representative Dreier expressing NDAA’s concerns. This bill remains in the House Judiciary Committee. 

H.R. 2363 authorizes the attorney general to make grants to states, local governments, and Indian tribes to create and expand witness and victim protection programs to prevent threats, intimidation and retaliation against victims of and witnesses to crimes. In addition, the bill will authorize the director of the Bureau of Justice Assistance to award grants to state and local prosecutors and law enforcement agencies for juvenile and young adult witness assistance programs. Lastly, state and local courts would be permitted to apply for discretionary grants and make available state grants for establishing domestic terrorism threat assessment databases.

Streamlined Procedures Act

S. 1088, the Streamlined Procedures Act of 2005, sponsored by Senator Kyl (R-AZ) was to have been marked up by the Senate Judiciary Committee this session, but this action has not taken place. The mark-up will probably occur in the second session. Hearings have been held but no further action has been taken.

As introduced, S.1088 would amend the federal judicial code to revise the law and procedures for habeas corpus petitions. It would deny or restrict federal court jurisdiction to hear habeas corpus petitions that: (1) have been procedurally barred in a state court; (2) are based upon errors in sentences or sentencing ruled as harmless error by a state court; (3) pertain to capital cases; or (4) challenge the exercise of a state’s executive clemency or pardon power.

It also would revise deadlines for filing appeals to federal courts of state habeas corpus decisions; revise procedures for mixed habeas corpus petitions (petitions bringing claims exhausted and unexhausted in state court) to require petitioners to describe how they have exhausted each claim in state court; require unexhausted claims to be dismissed with prejudice; and limit the ability of habeas corpus petitioners to amend petitions or modify or add additional claims.

The bill would also require that any period in which a petitioner does not have a habeas corpus petition pending in a state court to be charged against the one-year limitation period for filing a federal habeas corpus petition from a state court decision.

Requests for financial support for petitioners in a habeas corpus proceeding would be decided by a judge other than the judge presiding over such proceeding and any amount of financial support authorized by a judge would be required to be publicly disclosed.

Crime victims’ rights would be extended to federal habeas corpus proceedings arising out of a state conviction.

The companion bill, H.R. 3035, was introduced by Representative Lungren (R-CA) during this session. A hearing on H.R. 3035 was held but no other action was taken.

The 109th Congress — Second Session

The Senate has announced that the Second Session of the 109th Congress is scheduled to begin on January 18 and is tentatively scheduled to adjourn on October 6. The anticipated recesses for the next session include:

• February 20-24: President’s Day Holiday
• March 20–24
• April 10–21
• May 29–June 2: Memorial Day Holiday
• July 3–7: Independence Day Holiday
• August 7–September 4: August Recess & Labor Day Holiday

The House of Representatives has not yet announced its schedule.

1 This article was prepared on December 15, 2005, and changes may have occurred to the legislation discussed.