By James D. Polley, IV

At the time this is being written the Senate is beginning consideration of judicial nominations that will determine in large extent the outcome of the following items of interest to prosecutors.

Prosecutors and Defenders Incentive Act

H.R. 198 was introduced in January by Congressman Scott (D-GA), the sponsor of the same bill in the last Congress. In May, the bill had 16 co-sponsors (last Congress there were 44) and was referred to the House Committee on Education and the Workforce.

To date no comparable legislation has been introduced in the Senate although Senator Durbin, the sponsor of the original legislation, has indicated that he plans to do so.

The Prosecutors and Public Defenders Incentive Act would amend the Higher Education Act of 1965 (HEA) to establish a program of student loan forgiveness for borrowers who agree to remain employed, for at least three years, as either state or local criminal prosecutors or as state, local, or federal public defenders in criminal cases.

It would provide student loan repayment benefits on a “first-come, first-served basis” subject to the availability of appropriations. Priority would be given to borrowers who received repayment benefits for the preceding fiscal year and have completed less than three years of the first required service period.

Allows an additional agreement, after the initial three-year period, for a successive period of service which may be less than three years. Limits the amount paid for any borrower to $6,000 per calendar year and $40,000 total.

Adds public defenders among those eligible under the Perkins program for cancellation of student loans (prosecutors are already eligible for this).

NDAA representatives participated in a meeting with the other parties interested in the topic: the ABA, National Association of Criminal Defense Lawyers and the National Legal Aid and Defender Association (NLADA). There was a general discussion of all the approaches being explored (e.g., straight forgiveness bill, amending the language of other loan forgiveness provisions, getting a tax credit).

General consensus was that the administration’s policies and initiatives on education were going to make the effort even tougher. Additionally, the elimination of the training (ROTC style) program from the COPS program would end the ability of DOJ to administer a program for prosecutors and public defenders. None of these would make the effort less worthwhile; they would just provide more and new obstacles.

Grants for DNA Backlog Prosecutions Act

Congressman Gallegly (R-CA) introduced H.R. 1602, the DNA Backlog Prosecutions Act, on April 13, 2005. The legislation would authorize the appropriation of $100,000,000 for each of fiscal years 2006 through 2010 for grants to train and employ personnel to help prosecute cases cleared through the use of funds provided for DNA backlog elimination.

NDAA President Paul Walsh has sent a letter of support to Mr. Gallegly. To further bolster the effort, letters were also sent to the chairs and ranking members of the House Judiciary Committee, the House Appropriations Committee and the subcommittee that appropriates funds for the Department of Justice.

The Judiciary Committee has jurisdiction over the legislation and its support is crucial. The Appropriations Committee provides funding for the program and could do so out of existing DNA funds if they so desired.

Victims of Crime Act Fund

The Victims of Crime Act (VOCA) Fund was authorized by Congress in 1984 by the Victims of Crime Act. It was established to assist with the operation of federal, state and local crime victim programs and is funded primarily by the fines, assessments and fees imposed on federal offenders. In turn, VOCA funds are distributed through formula grants to the states for victim assistance programs, victim compensation programs and training and technical assistance to victim service providers.

As part of his budget submission to Congress for the next fiscal year, the president proposed that a $650M limit be placed on spending from the VOCA Fund in addition to a rescission of the remaining balance from the fund, thereby creating a zero balance by the beginning of fiscal year 2007. The funding gap or lag would effectively close the door for many state and local victims programs.

The Board of Directors of the National District Attorneys Association has strongly urged Congress to reject these proposals. NDAA President Walsh transmitted this message to Congress by letters to the chairs and ranking members of the respective appropriations committees, judiciary committees and members of the newly formed “Victims Caucus” in the House.

In his letter he states that:

During the last Congress the propriety of a constitutional amendment for victims was debated and victims’ rights enhanced by the “Justice For All Act.” I would note that President Bush supported the proposal for the Constitutional Amendment and signed into law the “Justice For All Act.” The actions now proposed are contrary to the courses of action that you have previously debated and elected to pursue.

Methamphetamine Legislation

The following bills have been introduced and most have been referred to the respective judiciary committees with minimal movement.

Methamphetamine Remediation Research Act: H.R. 798, introduced by Congressman Bart Gordon (D-TN) was referred to the House Committee on Science. It would provide funds for research and provide guidelines for controlling the clean-up of meth lab sites.

The Science Committee marked up the bill on March 13 and it has been placed on the calendar for a floor vote. There is no companion bill in the Senate.

Combat Meth Act: The Combat Meth Act was introduced in the Senate (S. 103) by Senator Talent (R-MO) and in the House (H.R. 314) by Congressman Blunt (R-MO).

The bills would authorize $15M to provide training to state and local prosecutors and law enforcement agents for the investigation and prosecution of methamphetamine offenses with a $3M set-aside for rural communities; expand the meth “Hot Spots” program to authorize the use of existing funds to hire police and prosecutors and for clean-up of meth contaminated areas; provide authorization of funds to train local prosecutors as special assistant U.S. attorneys and hire additional assistant U.S. attorneys; add pseudoephedrine to Schedule V and control access and availability of the drug but provide an out if a community can demonstrate that the controls create a hardship.

The bills would also establish a grant program for “drug-endangered children rapid response teams” and provide for grants to local communities for meth treatment programs. Grants would also be provided to states to establish precursor monitoring programs.

Based on recent changes made to the NDAA “Policy Positions on Drug Control and Enforcement” (see the NDAA Web site), NDAA President Walsh sent a letter of support to Senators Talent and Feinstein (D-CA), primary sponsors of the bill in the Senate, and to Congressman Blunt. Letters supporting the respective bills were also sent to the chairs and ranking members of the judiciary committees.

Witness Protection Bills

In testifying before Congressional committees in 2003 and 2005, NDAA leadership identified witness intimidation as a major threat to our criminal justice system. In testimony before the Senate Judiciary Committee (then) NDAA President Bob McCulloch, the prosecuting attorney in St Louis County, Missouri, stated that, “Prosecutors across the county believe that the issue of witness intimidation is the single biggest hurdle facing any successful gang prosecution.”

NDAA President-elect Paul Logli, the state’s attorney in Winnebago County, Illinois, testifying in April 2005 reiterated this concern stating:

We’ve recently seen a spate of attacks on judges and new concerns about the safety of those participating in our justice system. Judges, prosecutors and even defense counsel have been the subject of threats and attacks for years but I would offer to you the premise that these attacks on our system of criminal justice have also been ongoing for many years through witness intimidation.

Congress is looking at these bills that concern witness intimidation assistance for local prosecutors:

Gang Deterrence and Community Protection Act: H.R. 1279, the Gang Deterrence and Community Protection Act, has been passed by the House. Introduced by Congressman Forbes (R-VA), this is largely a federal bill relating to abating gang violence.

One important provision provides for “Grants to State and Local Prosecutors to Combat Violent Crime and to Protect Witnesses and Victims of Crimes.” It authorizes $20M for each of the fiscal years 2006 through 2010 to hire additional prosecutors, to fund technology, equipment and training for prosecutors and law enforcement in order to increase accurate identification of gang members and violent offenders, to maintain databases with information to facilitate coordination among law enforcement and prosecutors; and to fund technology, equipment and training for prosecutors to increase the accurate identification and successful prosecution of young violent offenders.

NDAA President Elect Logli testified in support of H.R. 1279, identifying it as a “foundation” upon which to build additional efforts to combat gang violence. His testimony can be found on the NDAA Web site.

Witness Security and Protection Act: H.R. 908, the Witness Security and Protection Act, was introduced by Congressman Cummings (D-MD) in February 2005. With nine co-sponsors, it has been referred to the House Committee on the Judiciary.

The bill provides for the establishment, within the United States Marshals Service, of a Short Term State Witness Protection Section to provide protection for witnesses in state and local trials involving homicide or involving a serious violent felony or serious drug offense, pursuant to cooperative agreements with state and local district attorneys and the U.S. attorney for the District of Columbia.

It authorizes the attorney general to make grants to state and local district attorneys and the U.S. attorney for the District of Columbia for providing witness protection; it gives priority in awarding grants and providing services to prosecutors’ offices in states with an average of at least 100 murders per year during the five-year period immediately preceding an application for protection.

Gang Prevention and Effective Deterrence Act: H.R. 970, the Gang Prevention and Effective Deterrence Act was introduced by Congressman Schiff (D-CA) and a comparable bill, S. 155, was introduced by Senator Feinstein (D-CA). These bills were introduced in the last Congress as well.

In the Senate, the bill was marked up by the Judiciary Committee for floor action after multiple delays and debate but was never brought for a vote. In the House, the bill never made any progress.

A comprehensive anti-gang measure, it includes a section that authorizes the use of funds from the Violent Crime Control and Law Enforcement Act of 1994 to create and expand witness and victim protection programs.

Secure Access to Justice and Court Protection Act: H.R. 1751, the Secure Access to Justice and Court Protection Act was introduced in late April by Congressman Gohmert (R-TX). It would amend the United States Code to protect judges, prosecutors, witnesses, victims and their family members. It was referred to the House Subcommittee on Crime, Terrorism, and Homeland Security and a hearing was held in late April.

The bill would expand federal law to encompass “intimidation of, or retaliation against, a witness, victim, juror, or informant” in state proceedings as the basis for a criminal charge. It also increases punishment for witness intimidation or retaliation.

It would also establish a grant program for state and local witness protection programs. It authorizes $20M for each of the fiscal years 2006 through 2010 to carry out these programs.