By Rhea Arledge

Status of Fiscal Year 2007
Budget and Appropriations

The Senate has passed its Fiscal Year 2007 Budget Resolution (S. Conc. Res. 83) which proposes a cap of 881.5 billion dollars on discretionary spending authority.1 The House of Representatives, while it appears close to an agreement, has not yet passed its budget resolution (H. Conc. Res. 376). These resolutions will serve as the blueprints for the allocation of spending authority by the Appropriations Committee to the various subcommittees responsible for the 11 separate appropriations bills.2

The Congressional Budget Act of 1974 does, however, permit appropriations bills to be brought to the House floor by the leadership beginning on May 15 in the event that a budget resolution has not been passed by the chamber. As a result House Appropriations Chairman Jerry Lewis (R-CA) has announced that the spending allocations will be capped for discretionary spending at 872.78 billion dollars and the various appropriations subcommittees have begun work on their respective bills.

Of interest to local prosecutors, Chairman Lewis has specified that 59.73 billion dollars in spending authority will be allocated to the Subcommittee on Appropriations for Science and the Departments of State, Justice and Commerce. Once the bills have been passed by the subcommittees, the Appropriations Committee and the full House of Representatives, they will require consideration by the Senate and reconciliation on any differences between the two chambers.

With approximately five months remaining and three scheduled recesses before the Second Session of the 109th Congress adjourns on the targeted date of October 6,3 there is limited time available to complete this formidable job. In addition, because this is a mid-term election year, many members of Congress will need to adhere to an October 6 adjournment date in order to participate in campaign-related activities back in their home districts. It naturally follows that the 109th Congress may result in a lame-duck session in order to address remaining issues.

Pending Legislation with Potential to Impact Prosecutor-Supervised Bad Check Diversion Programs

The Financial Services Regulatory Relief Act (H.R. 3505) was passed by the full House of Representatives on March 8, 2006. If enacted, the legislation, in part, would exempt prosecutor-supervised pre-trial bad check diversion programs from the Fair Debt Collection Practices Act.

These programs are important to many prosecutors’ offices because the programs offer local prosecutors an opportunity to reduce heavy case loads by diverting bad check cases and to devote the scarce resources available to more serious crimes. Local prosecutors utilize non-governmental partners to help with the many administrative functions associated with these programs, such as clerical work, accounting and educational classes.

Additionally, the diversion programs allow local prosecutors to offer alleged offenders an opportunity to avoid prosecution and criminal conviction in exchange for their participation in a meaningful educational class and payment of full restitution to victims. Class participants receive instruction on financially, as well as legally, responsible behavior and these educational classes have resulted in a significant drop in recidivism.

The Senate’s version of the legislation4 passed the Senate Committee on Banking, Housing and Urban Affairs by voice vote on May 4, 2006, and is expected to go before the full Senate before the August recess. While the language in both pieces of legislation is comparable, there are a few differences, which will require reconciliation during the conference process.

A Comparison of the Legislation

Conditions for exemption:
Section 818 (a) of H.R. 3505 sets forth a number of conditions that must be met before a private entity may be exempt from the provisions of the Fair Debt Collection Practices Act when operating under the direction of a local prosecutor’s office.

In part the conditions require that before contact with the alleged offender may be made there must have been a “determination by the state or district attorney that sufficient evidence of a bad check violation under state law exists.” The Senate version, however, requires that there must have been “a determination by the state or district attorney that probable cause of a bad check violation under state penal law exists” in addition to a determination that the “alleged offender has failed to pay the bad check after demand for payment is made for payment of the check amount, pursuant to state law.”

Section 818 (a)(2)(3)(E) of H.R. 3505 requires that the private entity include in its initial communication with the alleged offender information regarding the dispute resolution process. H.R. 3505 provides for dispute resolution “through a procedure established and supervised by the state or district attorney together with an explanation of how such a dispute may be initiated” and when the alleged offender knows that the violation has occurred through no fault of his own (i.e. forgery, identity theft) and has notified the proper law enforcement agency, then all contacts and restitution efforts must cease until resolution. The Senate language simply provides that in cases where the alleged offender asserts that another individual is responsible for the violation, then a report to the proper law enforcement agency as well as notification to the private entity or district attorney must be provided. The district attorney is responsible for making a determination that there is probable cause to believe that a crime has been committed and until that determination is made, contacts and restitution efforts must cease.

Section 818 (a)(2)(3)(F) of H.R. 3505 requires that fees charged by the private entity must, in part, “conform with the schedule of reasonable charges for such services which shall be established by the National District Attorneys Association, after consultation with the [Federal Trade] Commission and representatives of interested business and consumer organizations.” The Senate’s version of this section requires that the private entity only charge fees associated with services rendered under the contract and the fees have been authorized by the contract with the state or district attorney.

Exclusions from the program:
Section 818 (b) of H.R. 3505 excludes certain alleged offenders from participating in the bad check diversion programs. These exclusions include those who have been convicted of a bad check offense during the three years prior to the act at issue and those alleged offenders who have already participated in a pretrial diversion program during the 18 months prior to the law at issue. The Senate version of the legislation does not include language that excludes certain categories of offenders from participating in the program.

Federal Communications Commission and the Communication Assistance for Law Enforcement Act (CALEA)

Since 1992 the National District Attorneys Association has supported legislation that “requires telecommunications and other electronic communication service providers, when authorized by law, to provide law enforcement with the capability of intercepting the entire content of communications of persons engaged in criminal conduct, to the exclusion of all others, regardless of the technology involved.”5

On October 25, 1994, the Communications Assistance to Law Enforcement Act6 was enacted to require certain advanced technologies to modify their equipment, facilities and services to facilitate the authorized interception of communications by law enforcement.

On May 3, 2006, the Federal Communications Commission issued the second of two orders clarifying the applicability of CALEA mandates to advanced technologies such as broadband Internet providers and Voice over Internet Protocol (VOIP). Previously a ruling was issued to clarify that such advanced technologies are in fact covered by the law. The recent May 3 order (FCC-06-56 Second Report and Order and Memorandum Opinion and Order) provides, in part, the following:

• Broadband Internet providers must be compliant with CALEA before May 14, 2007.
• The compliance deadline applies to all providers including broadband Internet access and interconnected VOIP providers.
• Trusted Third Parties (TTPs) are permitted to assist providers in meeting their CALEA obligations.
• The FCC may take separate action under the Communications Act (Section 229(a)) in addition to other law enforcement remedies.
• Carriers will be responsible for the cost of modification for equipment/technology introduced after January 1, 1995. No national surcharge will be accessed in order to compensate providers for the cost of compliance with the law.
• Providers must submit interim reports to the FCC to ensure their compliance by May 14, 2007.

Pending Legislation which Could Impact the Investigation, Prosecution and Prevention of Child Abuse

S.1086, the Sex Offender Registration and Notification Act7
S. 1086 was introduced by Senator Orrin Hatch (R-UT) on May 19, 2005, and subsequently referred to the Committee on the Judiciary. On October 20, 2005, the bill was favorably reported out of the committee in the nature of a substitute and placed on the General Orders Calendar of the Senate.8 On May 4, 2006, the bill, as amended, was passed by the full Senate on a voice vote. The bill has been received by the House of Representatives and is awaiting action. As passed by the full Senate the Sex Offender Registration and Notification Act would, if enacted: 

Title I

• Require that the attorney general establish guidelines for state sex offender registration and offender notification programs.
• Provide for assistance grants to states participating in the sex offender management assistance program for the costs of implementation and bonus payments for early compliance by participating states.
• Expand the definition of a “covered person” for the purpose of inclusion in a sex offender registry to cover both adults and juveniles.
• Require “covered persons” to provide initial registration information including name, aliases, social security number, address, valid driver’s license and identifying information regarding each vehicle owned, name and address of employer, and name and address of any educational institution attending now or in the future, a photograph and fingerprints.
• Require a “covered person” to periodically provide a photograph (every 12 months for the life of the offender).
• Require on-going registration information to be provided by offenders for the remainder of their lives. The frequency of updates is contingent upon a tier system (tier 1 crimes require update every 12 months; tier 2 every six months, and tier 3 every three months). Changes to name, address, employment and student status would be required to be reported within specified time periods for tier 2 and 3 individuals with criminal penalties for failure to do so.
• Permit registration requirements to be applied retroactively by the attorney general.
• Provide that state officials gathering the registration information may share information with domicile, employment or school states of the offender and that the information will be entered into the National Sex Offender Registry maintained by the FBI.
• For participating states, provide that the state must maintain one single comprehensive registry and a public Web site containing specific information regarding offenders.

Title II

• Provide for the maintenance of a National Sex Offender Public Registry—a national Internet site through which the public can access information from all of the participating state Internet sites.
• Provide for grants to states for civil commitment proceedings and the monitoring of released persons.

Title III

• Contain the Jetseta Gage Prevention and Deterrence of Crimes Against Children Act of 2005, which provides for mandatory minimum terms of imprisonment for violent crimes against children; increased penalties for sexual offenses against children.

Title IV

• Provide for grants to states and localities for pilot programs to monitor sexual offenders.

Title V

• Authorize funding for the American Prosecutors Research Institute at 7.5 million dollars per fiscal year (FY06-10).
  
• Permit grants to, in part, state and local governments to assist states in enforcing sex offender registration.
• Authorize the Bureau of Justice Assistance to make grants to local law enforcement agencies to combat the sexual abuse of children through the hiring of additional personnel, the training of existing staff, the investigation of the use of the Internet to facilitate these crimes; and the purchase of computer hardware and software.

H.R. 3132, Children’s Safety Act of 2005
H.R. 3132 was introduced by the chairman of the Judiciary Committee, Jim Sensenbrenner (R-WI), on June 30, 2005, and, as amended, was approved by the full House on September 14, 2005. Subsequently it was received in the Senate and referred to the Committee on the Judiciary.

This legislation has since been incorporated into Chairman Sensenbrenner’s Children’s Safety and Violent Crime Reduction Act of 2006 (H.R. 4472), introduced during the second session of Congress and passed by the full House on March 8, 2006.

While the language of H.R. 3132 is fairly comparable to that of S.1086, the bill does contain differences that bear noting. As passed by the full House, H.R. 3132 contains language that mandates the reduction of Byrne/Justice Assistance Grants and Local Government Law Enforcement Block (LGLEB) Grants by 10 percent for those states that fail to meet the requirements set forth for the development and maintenance of a mandatory state-wide sex offender registry.

In addition, the bill incorporates the text of the Local Law Enforcement Enhancement Act of 2005 which, in part, provides federal assistance to state and local jurisdictions to prosecute hate crimes. These differences will require reconciliation during the conference process.

Pending Legislation Regarding Prisoner Reentry Issues

S. 1934 & H.R. 1704, the Second Chance Act of 2005
S. 1934 was sponsored by Senator Arlen Specter (R-PA) with 18 co-sponsors and introduced on October 27, 2005. Subsequently the bill was referred to the Committee on the Judiciary and is awaiting action. H.R. 1704 was sponsored by former Representative Rob Portman with 106 co-sponsors and introduced on April 19, 2005. Subsequently the bill was referred to Subcommittee on Crime, Terrorism, and Homeland Security and the Subcommittees on Select Education and 21st Century Competitiveness on April 20, 2005, and May 9, 2005, respectively. H.R. 1704 has since been marked up and forwarded to the full Committee on the Judiciary for further action.

While there are differences between the two bills, generally the legislation would reauthorize and expand state and local adult and juvenile offender reentry demonstration projects.

The legislation would provide for the establishment or improvement of reentry systems in order to facilitate re-entry of prisoners through the development of plans carried out by the correctional agency of the state or local government; through the coordination of services provided by community services, supervision, and public/private entities services in order to provide for offenders and their families during the reentry process; and the provision of necessary documentation to offenders, prior to release, for transition into the community.

In addition, S.1934 and H.R. 1704 would provide for the strengthening of services by local governments for individuals released from jail; the maintenance of contact between offenders and mentors upon reentry; the provision of post-release and transitional housing that provide supervision and services upon release from incarceration; assistance to prisoners in securing permanent housing; the provision of health services to offenders in custody and upon reentry; the provision of education, job training, parenting skill training, and miscellaneous trainings; the facilitation of collaboration among corrections, education and employment communities; the assessment of literacy and the provision of services; the facilitation of family member involvement in the reentry process; the development of programs in which victims are included in re-entry on a voluntary basis; the establishment and expansion of reentry courts; the provision of technology and other tools to assist with post-release supervision.

The attorney general would be authorized to make a grant to establish a National Adult and Juvenile Offender Reentry Resource Center; would be directed to establish an interagency task force on federal offender reentry programs; and authorized to conduct research on offender re-entry. The Department of Justice would be required to modify existing procedures and policies to improve case planning and the transition of persons from the custody of the Bureau of Prisons to the community. The Bureau of Prisons would in turn be required to establish reentry planning procedures.

The secretary of Health and Human Services would be required to review the role of state child protective services at the time of arrest and the secretary of Labor would be required to implement a program to educate employers and one-stop center workforce development providers about existing incentives and tax credits for hiring former prisoners.

The United States Code would be amended to direct a court to revoke a term of supervised release or a sentence of probation for a defendant who commits a crime of violence against, or an offense of unlawful sexual contact with, a person under age 16.

Update on the American Bar Association’s Proposed Standards on DNA Evidence

James Fox, district attorney, San Mateo County, California, and NDAA vice-president, represented the National District Attorneys Association during the recent American Bar Association’s Criminal Justice Section Council meeting on April 29, 2006, in Napa, California. The council met for the second of two readings of the Proposed ABA Criminal Justice Standards on DNA Evidence.9 A representative from NDAA was sent to express concerns identified by the NDAA Committee on Science and Technology during the April committee meeting.

Changes from the February 2006 version are not substantial but are as follows:

The title of the document has been changed to read “Proposed ABA Criminal Justice Standards on DNA Evidence” in lieu of “ABA Criminal Justice Standards on DNA Evidence.”

Standard 2.1 “Collecting DNA Evidence from a Crime Scene or Other Location” now requires that the collection of DNA evidence be done “promptly.”

Standard 2.2 “Judicial Order for Collecting DNA Samples from a Person” now provides varying standards for collection of a DNA sample dependent upon whether the sample is obtained by physically invasive (requires probable cause that a crime has been committed) or noninvasive means (requires reasonable suspicion that a crime has been committed).

Standard 8.1 “Authorized and Proscribed DNA Databases” has been expanded to permit databases to be maintained for criminal identification purposes to include those persons arrested for crimes designated by the legislature as appropriate for the database and where there has been a judicial determination that probable cause exists or an indictment or information has been filed. The standard now also provides for the future expansion of databases.

The House of Delegates will vote on the proposed standards during the ABA annual meeting (August 3–6, 2006).

Executive Working Group

Attorney General Alberto Gonzales and NDAA Vice President James Reams during the April Executive Working Group.

On April 18, 2006 representatives from the U.S. Department of Justice; the National Association of Attorneys General (NAAG); and the National District Attorneys Association participated in a day-long Executive Working Group on Prosecutorial Relations at the Department of Justice. The long-established group is composed of approximately six representatives from each of the participants and is designed to facilitate collaboration and cooperation and provide a venue for the frank discussion of issues facing prosecutors at the federal, state and local levels.

The National District Attorneys Association was represented by President Paul Logli; Vice President James Reams; Past President Dan Alsobrooks; Director-at-large Christopher Morano; and Past Vice President Robert Horan.

The productive session was comprised of presentations by the FBI and ATF; discussions by the U.S. attorneys, NDAA and NAAG regarding their perceptions of the gang problem; comments by both Deputy Attorney General Paul McNulty and Assistant Attorney General (Criminal Division) Alice Fisher; and a roundtable discussion with Attorney General Alberto Gonzales.

1 Details of the Senate budget resolution can be accessed at http://budget.senate.gov/republican/pressarchive/2006-03-29senate-passed%20summary.pdf and http://budget.senate.gov/republican/pressarchive/PrintLanguage.pdf. S.Con.Res.83 Budget Resolution passed the senate on 3/16/06 and included several important amendments to the president’s FY2007 budget proposal:

• Includes 99 million dollars for COPS hot spots funding
• Restoration of Byrne-JAG funding to 2003 funding level of 900 million dollars
• Restoration of the COPS program to counter methamphetamine
• Restoration of 380 million dollars to juvenile justice programs in DOJ
• Expansion of funding for HIDTA and HIDTA program to remain in ONDCP

2 This article was prepared on May 4, 2006. As a result, information may be outdated at the time of publication. If you have questions regarding the status of the information provided please contact Rhea Arledge, legislative counsel, at either (703) 519-1679 or rhea.arledge@ndaa-apri.org.

3 Senate: In Session: July 10 – August 4; September 5 – October 6; Scheduled Recesses: August 7 – September 4; House of Representatives: In Session: July 10 – July 28; September 5 – October 6; Scheduled Recesses: July 31 – September 4.

4 The Senate’s version of the Financial Services Regulatory Act has not been assigned a bill number as of this writing.

5 National District Attorneys Association Resolution 92-09, “Supporting Legislation to Assure the Capability of Performing Court-Authorized Electronic Surveillance in Light of New Digital Technologies,” Adopted by the Board of Directors, July 19, 1992.

6 47 USC §1001

7 A discussion of the Sex Offender Registration and Notification Act language contained in bill H.R. 4472 can be found in the March/April issue of The Prosecutor or online at www.ndaa-apri.org. H.R. 4472, the Children’s Safety and Violent Crime Reduction Act of 2006 passed the full House of Representatives on March 8, 2006. This bill is noteworthy because action on this bill has been quick and is a compilation of bills introduced during the first session of the 109th Congress including:

• H.R.3132, the Children’s Safety Act
• H.R. 2363, the Justice for Peace Officers Act
• H.R. 1751, the Secure Access to Justice and Court Protection Act of 2005
• H.R. 1602, the DNA Grants for Prosecution Backlog
• H.R. 3035, the Streamlined Procedures Act of 2005

8 The bill as originally introduced would have mandated that states develop and implement state wide sex offender registries. For those states not in compliance with the law, a 10 percent reduction in Byrne-JAG funding would have been imposed as a penalty. These provisions are no longer a part of the legislative language.

9 The proposed standards from the February 2006 council meeting can be accessed at http://www.abanet.org/crimjust/standards/dnaevidencereporternotes.pdf. The April 2006 draft of the proposed standards can be obtained by contacting Rhea Arledge at (703) 519-1679 or rhea.arledge@ndaa-apri.org.