Student Loan Forgiveness—Where NDAA Has Been and What’s Next
The concept of student loan forgiveness for prosecutors and public defenders has been an issue of concern for NDAA for several years. Low public sector pay balanced against high private sector salaries has made it increasingly difficult to recruit and retain attorneys for prosecutors’ offices. NDAA hopes that forgiveness for federally funded loans would serve as an incentive to join, and stay in, local prosecutors’ offices.
Initial Efforts
In late 1999 then-NDAA President John Justice sought and received clarification from the Department of Education (DOE) that prosecutors were considered “law enforcement” under the loan forgiveness provisions of the Perkins Student Loan Program. As part of the initial inquiry, public defenders were included and DOJ, the ABA and public defender organizations were supportive. The DOE response indicated that public defenders were not included in the Perkins Program, and Stafford Loans covered neither prosecutors nor defenders.
NDAA Strategy
In January 2000, a strategy was developed on the effort to obtain loan forgiveness under both of these programs. It is important to recognize that any loan forgiveness is not a free program in the sense that the federal government has to repay the loan instead of the student. To make forgiveness for prosecutors and public defenders a viable option, the cost consequences had to be minimized.
Because it was an election year, it was decided that any effort would have to be low key—both to avoid being involved in election year politics and to prevent too many others from trying to join the effort. Ideally a bill would be found that could have an amendment added to accomplish the desired result. What NDAA wanted to avoid was drawing attention to the issue.
Public Defender Bill
In April 2000, a congressman from California who was running for the Senate, introduced a bill specifically adding public defenders to the Perkins Program. Despite efforts to convince him that this was not a tactically sound route, he persisted.
NDAA’s objection to this effort was based on several considerations. It had become apparent that most prosecutors had loans under the Stafford Program for which no forgiveness existed, and it was assumed that the same would be true for public defenders. To bring up the issue in a piece meal fashion for the few that qualified under the Perkins Program, and as part of a political campaign, placed the entire effort at a disadvantage.
The bill was referred to the House Committee on Education and the Workforce and stirred its interest regarding the inclusion of any attorneys in the Perkins Program. The basic position of the committee chair was that the loan forgiveness provisions in Perkins were for police officers and that the definition of “law enforcement” was not meant to include lawyers even if they were prosecutors. The chair actively sought to remove lawyers from the Perkins Program and local prosecutors were at risk of losing everything.
In an effort to stop this bill, then-NDAA President Stuart VanMeveren sent letters to all 49 members of the committee (with information copies to the appropriate NDAA Board members and prosecutor coordinators). He called on the members of Congress not to penalize prosecutors and he was supported by the prosecution community in this effort.
Fortuitously, the Washington Post had recently published an article on the difficulty of keeping attorneys in the federal sector because of private sector salaries. NDAA President VanMeveren wrote a letter to the editor that was published, calling attention to the plight of local prosecutors on the same issue. This letter had been designed to reinforce the effort of getting loan forgiveness and was published during the week the House committee was to consider the forgiveness issue. Copies of the original Post article and the NDAA letter were faxed to all members of the committee.
House Battle
On Thursday, May 25, 2000, the House Committee on Education and the Workforce took under consideration “technical amendments” to the Higher Education Act. One of these, offered by the chairman (who has since left Congress), would have excluded attorneys (not just prosecutors) from the student loan forgiveness provision of the Perkins Loan Program.
At the committee meeting, Congressman Payne (D-NJ) offered an amendment that would have specifically added both prosecutors and public defenders to this loan forgiveness program. The chair stated that it had not been the intent of the original forgiveness provisions to apply to prosecutors, and that the interpretation to include them by the Department of Education, was in error.
A congressman from California (who has also left Congress) echoed this belief and maintained that attorneys could leave government service and take higher paying positions to repay their loans; that the intent of the original forgiveness provision had been to help “blue collar” workers such as police and prison guards.
Several members of the committee challenged the contention that lawyers didn’t need assistance to stay in public service and Congressman Deal (R-GA), a former local prosecutor, weighed in with the “facts of life” in rural Georgia and the need to recruit and retain a core of professional prosecutors and defense counsel.
The committee chair then offered his own amendment that adopted Payne’s amendment but added a limitation of an adjusted gross income not to exceed $30,000. The Democratic members agreed to the chairman’s amendment. The committee voted 25-19 to approve the chair’s amendment (the chair voted against his own amendment) with four Republicans (Deal (R-GA), Schaffer (R-CO), Castle (R-DE) and Fletcher (R-KY)) voting to ensure that prosecutors continued to receive loan forgiveness under the Perkins Program. The “corrections” then passed a vote on the floor of the House and went to the Senate for action. No action was taken in the Senate on the “corrections” and they died with the end of the 106th Congress.
The aftermath of this fight put NDAA at a distinct disadvantage in the House on renewing the effort. During the committee debate on the need for loan forgiveness, the committee made it clear that it would not entertain any other forgiveness legislation without a full hearing to determine its necessity and who should be included (probation officers, fireman, paramedics, etc). This placed any further loan forgiveness in difficulty since every addition raised the price tag.
American Bar Association
In 2000, the new American Bar Association (ABA) president chartered a national commission to look at student loans and their impact on all public sector lawyers—not just prosecutors and public defenders. A series of hearings have been held and NDAA has had a representative, district attorney and NDAA Vice President J. Tom Morgan of DeKalb County, GA, on the commission. The commission has been reviewing all aspects of the loan problems including state and law school forgiveness programs. Its report is due out this August.
9/11/01
On the day and at the very time of the terrorist attacks on the United States, an NDAA representative was on the Hill meeting with staff from a principal member of the House Education Committee. The meeting was postponed when the capitol was evacuated and a later meeting brought a limited expression of interest.
DOJ Reauthorization Bill
A reauthorization bill for DOJ passed the House in the summer of 2001 as a bare bones bill. Then, in December, the Senate passed its version and added a number of items that greatly expanded the scope of the legislation. Attempting to capitalize on this opportunity, NDAA made an effort to get forgiveness for student loans made under the Stafford Program added to the bill during the fall and winter of 2002.
Draft language designed to get student loan forgiveness into the DOJ bill mirrored other provisions already in the Stafford Loan Program and had a 10-year period for graduated loan forgiveness. Meetings were held with staff for the principal members of the conference committee. Because of the nature of the DOJ reauthorization, the members were hesitant to add the loan forgiveness provisions but several were supportive of the idea as a separate issue.
When the final DOJ Reauthorization bill passed, the loan forgiveness provisions were not included.
2002 NDAA Capitol Conference
One of the three legislative issues taken to the Hill by prosecutors attending the conference was that of loan forgiveness. Talking points were provided and attendees attempted to make their members of Congress aware of the issue.
107th Congress
The 107th Congress showed a distinct disinclination to advance student loan forgiveness in several situations. Bills were introduced, but not passed, to extend loan forgiveness to the surviving spouses of 9/11 victims and to military members fighting in Afghanistan. Even the Higher Education Relief Opportunities for Students Act of 2001 (Public Law No. 107-122) provides only limited relief from student loans during national emergencies declared by the president. It generally states that active duty military personnel, members of the National Guard, those who work or reside in a disaster area, or those who have suffered direct economic impact by the disaster should be no worse off, with regard to student loans, then they were prior to the disaster but does not actually provide for forgiveness.
Innocence Protection Act
In testifying before the Senate Judiciary Committee on the Innocence Protection Act (IPA), both then-NDAA President VanMeveren (June 2000) and NDAA Board Member Paul Logli (June 2002) brought up the need for student loan forgiveness as a means of recruiting and retaining competent prosecutors and public defenders. Since 1999, all NDAA presidents have also brought up the issue in discussion with congressional leaders.
The IPA, as passed by the Senate Judiciary Committee included provisions for loan forgiveness for prosecutors and public defenders; the House version of the IPA did not. NDAA did not support the IPA because of the standards required for DNA testing and for defense representation in capital cases.
The IPA, and its student loan provisions, died at the end of the 107th Congress.
108th Congress
The new Congress will have to reauthorize the Higher Education Act and this will serve as a possible vehicle for adding student loan issues for prosecutors. Major legislation such as this, however, usually takes two or more years to pass.
At this time, Senator Durbin (D-IL) plans to introduce a loan forgiveness bill as an independent bill, hopefully with Republican co-sponsors. This bill would require that the attorney enter into a written agreement that specifies that the attorney would remain employed as a prosecutor or public defender for a required period of service (not less than three years), unless involuntarily separated from that employment. If the attorney is involuntarily separated on account of misconduct, or voluntarily separates from that employment before the end of the period specified in the agreement, the individual must repay the amount of any benefits received. Successive agreements could be made to continue the loan payments until the maximum amount authorized is reached. The secretary of Education would authorize the loan payments for the attorney for the period of the agreement if funds were made available through appropriations.
Student loan repayments could not exceed $6,000 for any borrower in any calendar year or a total of $40,000 for any borrower. There are no provisions for reimbursement of payments made prior to the initiation of the program.
Look for updates on this issue on the NDAA Web site and in future editions of The Prosecutor.
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