Prosecutors and Defenders Incentive Act

A bill to provide for education loan forgiveness for prosecutors and public defenders, S. 1091, the Prosecutors and Defenders Incentive Act, has been introduced by Senators Durbin (D-IL) and DeWine (R-OH).

The bill is predicated upon the need to encourage attorneys to enter and continue as prosecutors and public defenders. Loans under the Stafford program (part B of title IV of the Higher Education Act of 1965 (20 U.S.C. 1071 et seq.)) including Ford loans and the Perkins program (part D or E of title IV of the Higher Education Act of 1965 (20 U.S.C. 1087a et seq., 1087aa et seq.)) are included in the proposal.

For the purposes of the bill, the term “prosecutor” means a full-time employee of a state or local agency who is continually licensed to practice law and prosecutes criminal cases at the state or local level.

A “public defender” means an attorney who is continually licensed to practice law and is a full-time employee of a state or local agency or of a nonprofit organization operating under a contract with a state or unit of local government or as a full-time federal defender attorney employed in a defender organization established pursuant to subsection (g) of section 3006A of title 18, United States Code, which provides legal representation services to indigent persons in criminal cases.

To encourage qualified attorneys to enter and continue employment as prosecutors and public defenders, the Secretary of Education shall carry out a program, through the holder of a loan, of assuming the obligation to repay a qualified loan amount for any borrower who is employed as a prosecutor or public defender; and is not in default on a loan for which the borrower seeks forgiveness.

To be eligible to receive repayment benefits under this section, the attorney must enter into a written agreement that specifies that:

• the attorney will remain employed as a prosecutor or public defender for a required period of service specified in the agreement (but not less than three years), unless involuntarily separated from that employment;
  
  
• if the attorney is involuntarily separated from that employment on account of misconduct, or voluntarily separates from that employment before the end of the period specified in the agreement, the attorney will repay the amount of any benefits received under this section;
  
  
• if the attorney is required to repay any amounts owed, the federal government may use such methods as provided for by law for the recovery of amounts owing;
  
  
• the Secretary of Education may waive, in whole or in part, a right of recovery if it is shown that recovery would be against equity and good conscience or against the public interest;
  
  
• finally that the Secretary of Education shall make student loan payments for the period of the agreement, subject to the availability of appropriations.

Student loan payments made by the Department of Education shall be made subject to terms, limitations, or conditions as may be mutually agreed to by the borrower concerned and the secretary in the agreement.

The amount paid by the secretary under this section may not exceed:

• $6,000 for any attorney in any calendar year; or
  
  
• a total of $40,000 in the case of any attorney.
  

Repayment benefits are on a first-come, first-served basis and subject to the availability of appropriations. Priority in providing repayment benefits will be to attorneys who have received repayment benefits for the preceding fiscal year; and have completed less than three years of the first required period of service specified for the attorney in the agreement.

There is no retroactive application of these loan provisions. On completion of the required period of service under the agreement, the attorney may enter into an additional agreement for a successive period of service specified in the agreement (which may be less than three years).

In a separate provision, public defenders are added to the already existing cancellation provisions of the Perkins Loan program.

Involuntary Bankruptcy Improvement Act of 2002

While bankruptcy is something that normally does not involve most prosecutors, this is an exception. Many of you are familiar with the harassing tactics employed by many members of the militia and other fringe groups that use the civil legal system to attack public officials. Fraudulent liens and other encumbrances on individuals have tied up more then one prosecutor’s financial stability.

The latest ploy, coming from Wisconsin, has been the use of involuntary bankruptcy to ruin credit ratings and harass public officers. Under federal bankruptcy law, one or more creditors can file an involuntary petition against an individual. The petition basically alleges that the subject owes the creditor and can’t pay their obligations.

Using this ploy, a tax protestor in Wisconsin filed involuntary bankruptcy petitions against 36 local officials. Many of these individuals didn’t even know they had the petition filed against them until they attempted to carry out a financial transaction. As with the false lien cases, the involuntary bankruptcy cases were dismissed but not without a great deal of effort and inconvenience on the part of the public official.

Congressman Sensenbrenner, chair of the House Judiciary Committee, has introduced H.R. 1529, the “Involuntary Bankruptcy Improvement Act” to head off this problem.

The bill amends the Bankruptcy Code to require the bankruptcy court, on motion of the purported debtor, to expunge from the court’s files all records relating to the filing of an involuntary petition. Also expunged would be any references to the petition if the petition is false or contains a materially “false, fictitious or fraudulent statement,” the debtor is an individual and the petition is dismissed.

It also amends the code to authorize the bankruptcy court to prohibit credit-reporting agencies from issuing any report that contains information relating to the involuntary bankruptcy or to the case in which the purported debtor is an individual and the petition is dismissed.

NDAA President Alsobrooks, recognizing the need to protect public officials from harassment for doing their jobs, provided NDAA support for Chairman Sensenbrenner’s bill. At the time that this is being written, the bill is pending action by the full House.