By Rhea S. Arledge, Legislative Counsel

Editor's Note: This article was prepared May 29, 2007.

San Francisco District Attorney Kamala Harris Testifies Before House Judiciary Subcommittee

Kamala Harris

On Tuesday, April 24, District Attorney Kamala Harris (San Francisco) testified before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security regarding H.R. 916, the John R. Justice Prosecutors and Defenders Incentive Act of 2007; H.R. 1700, the COPS Improvement Act of 2007; and H.R. 933, the Witness Security and Protection Act of 2007.

The subcommittee was chaired by Representative David Scott (D-GA) and attended, in part, by Representatives Randy Forbes (R-VA); James Sensenbrenner (R-WI); Anthony Weiner (D-NY); Howard Coble (R-NC); Sheila Jackson Lee (D-TX) and Maxine Waters (D-CA).

Witnesses included Professor Laurie Robinson (Director, Master of Science Program, Department of Criminology, University of Pennsylvania), Mayor Doug Palmer (Trenton, New Jersey, and President, United States Conference of Mayors); Chief Edmund H. Mosca (Old Saybrook Department of Police Services and IACP); Mark Epley (Senior Counsel, Office of the Deputy Attorney General, United States Department of Justice), and John Monaghan (Consultant, New York City Law Department, NY).

District Attorney Harris testified on behalf of the National District Attorneys Association concerning the importance of H.R. 916, the John R. Justice Prosecutors and Defenders Incentive Act of 2007. In addition, District Attorney Harris testified in her individual capacity on H.R. 933 and H.R. 1700.

With regard to H.R. 933, Harris testified that witness intimidation undermines law enforcement’s ability to capture and prosecute criminals; she discussed the level of witness intimidation experienced by prosecutors all over the country, specifically noting the impact in Maryland, Massachusetts and Virginia; and she provided specific sobering examples of the witness intimidation problem in San Francisco. She advised the subcommittee that local law enforcement needs resources for the tools necessary to address witness intimidation and protection and that H.R. 933 will provide those necessary resources. District Attorney Harris also expressed support for H.R. 1700 as it will provide the necessary resources for law enforcement to address increases in violent crime.

District Attorney Harris’s testimony can be accessed at http://judiciary.house.gov/media/pdfs/Harris070424.pdf. The written testimony of all witnesses can be accessed at http://judiciary.house.gov/hearings.aspx?ID=168.

H.R. 916, the John R. Justice Prosecutors and Defenders Incentive Act of 20071

Legislative History Synopsis:

• 2/8/07 Introduced (as introduced the legislation tracks the language of S.442);
• 2/8/07 Referred to the House Committee on the Judiciary;
• 3/1/07 Referred to the House Subcommittee on Crime, Terrorism and Homeland Security;
• 4/24/07 Hearing held by the subcommittee;
• 4/26/07 Mark-up by the subcommittee;
• 5/2/07 Mark-up by the Committee on the Judiciary;
• 5/2/07 Passed, as amended, by the Committee on the Judiciary and was ordered to be reported favorably to the full House of Representatives;
• 5/16/07 Passed under suspension of the rules; roll call vote 341-73.

Following a hearing on April 24, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security held a mark-up session on H.R. 916 and the legislation was passed out of the subcommittee without amendments. Representative Forbes expressed concern during the hearing because H.R. 916 is proceeding through the Judiciary Committee in lieu of the Committee on Education and Labor. He also expressed concern that there are state loan repayment assistance programs in existence to assist prosecutors and defenders with their loan debt burden.

The full House Committee on the Judiciary held a mark-up session regarding H.R 916 on May 2.

Representative Bobby Scott (D-VA), Chair of the Subcommittee on Crime, Terrorism and Homeland Security offered the bipartisan amendment to the bill in the nature of a substitute. The amendment provides:

• The program will be authorized for funding in the amount of 25 million dollars per fiscal year for fiscal years 2008-2013 at which time the program will sunset.
• The Office of the Inspector General, Department of Justice, will conduct a study to review the cost of the program and its impact on the attrition rates in prosecutor and public defender offices.
• The attorney general will give priority to those borrowers with the least ability to pay and participation by a borrower in a state/local loan repayment assistance program will be a factor in making this determination.
  

By voice vote, the bill passed, as amended, and was ordered to be reported favorably to the full House of Representatives. The House Report is available at http://thomas.loc.gov/cgi-bin/cpquery/ R?cp110:FLD010:@1(hr148).

Motions to amend the legislation to include “dependency attorneys” and legal aid attorneys by Representatives Adam Schiff (D-CA) and Jerrold Nadler (D-NY), respectively, were withdrawn after points of order were raised by Representative Randy Forbes (R-VA).

The National District Attorneys Association, the National Association of Criminal Defense Lawyers and the American Bar Association have worked together for a number of years to advance this important legislation. Recently the presidents of the three associations prepared the article printed on page eight in support of the final passage of this critical public safety legislation.

Sex Offender Registration and Notification Act

Interim Federal Rule Published on the Applicability of the Sex Offender Registration and Notification Act

Pursuant to Sections 112(b) and 113(d) of the Sex Offender Registration and Notification Act (Title I, Adam Walsh Child Protection and Safety Act of 2006)2 the United States attorney general has published an interim rule in the Federal Register3 specifying that the requirements of the Sex Offender Registration and Notification Act are to be applied retroactively. This means that individuals convicted of a sexual offense prior to the enactment of the Sex Offender Registration and Notification Act must still register if their offense is such that registration would be required under the statute. In addition, the rule provides that sex offenders must register in each jurisdiction where they reside, attend school or are employed.

Proposed Guidelines for SORNA

On May 17, 2007, the proposed guidelines to assist jurisdictions in the implementation of the Sex Offender Registration and Notification Act were made available for public comment by the Office of Justice Programs, SMART Office (Sex Offender Sentencing, Monitoring, Apprehending, Registering, & Tracking). The full text of the guidelines is available at http://www.ojp.usdoj.gov/ smart/guidelines.htm.

Executive Working Group

On May 3, 2007, representatives from the National District Attorneys Association Board of Directors, the National Association of Attorneys General, and the Executive Office of United States Attorneys participated in a day-long session on the increasing gang problem in this country and the concomitant witness intimidation issue.

Deputy Attorney General Paul McNulty outlined and discussed the Department of Justice’s priorities, which include terrorism, drugs, cybercrime, corruption and corporate fraud, and violent crime. Terrorism, he advised, is an issue emphasized over all others and the prevention of domestic terrorism dominates the Department’s discussions with the United States attorneys. With regard to drugs, McNulty advised that prescription drug abuse is on the rise. In addition, the Department will be attending meetings with the Mexican authorities in an effort to reduce the levels of precursor chemicals entering the United States.

McNulty stated that violent crime is closely tied to the gang problem in this country and a National Institute of Justice report in 1995 revealed that 75 to 100 percent of violent crime in gang-ridden areas involved witness intimidation. The suggestions for addressing the problem as a result of the report included: relocation services for witnesses; increased court security; intergovernmental cooperation in areas such as housing for witnesses; security of witnesses in jail/prison; prevention and early intervention associated with Community Oriented Policing programs. All of these suggestions, the deputy attorney general stated, have become routine activities for victim/witness coordinators across the country since the report. In discussions on the federal resources available to state and local authorities to address gang activity, McNulty focused on the National Gang Center and invited the participants to discuss the issues they face in their jurisdictions and to provide suggestions for ways in which the federal government can assist.

During discussions regarding the gang problem, participants drew distinctions between witness protection and witness relocation programs. State and local officials noted that their jurisdictions often do not have the resources or ability, for a variety of reasons, to protect a witness but they can provide a means of relocating a witness. In addition, discussions highlighted that witness and victim intimidation are not unique to gang-related crime. Other violent crime including domestic violence and child abuse frequently have an element of intimidation that poses difficulties for law enforcement and prosecutors in the investigation and prosecution of the offense.

State’s Attorney Patricia Jessamy (Baltimore, Maryland), District Attorney James Fox (San Mateo, California) and District Attorney Joe Hynes (Brooklyn, New York) all discussed their individual strategy for dealing with the intimidation problem. State’s Attorney Jessamy focuses on educating the community about witness intimidation and the negative impact that it has on the criminal justice system and the safety of the community; drafting legislation that facilitates prosecution despite a lack of witnesses; and expediting vouchers for housing in order to quickly relocate witnesses. District Attorney Fox’s jurisdiction participates in a gang task force staffed by federal, state and local agencies and in addition has a witness relocation program available through the California Attorney General’s office. District Attorney Hynes utilizes family justice centers in Brooklyn that assist with the intimidation problem in cases of domestic violence and child abuse, as well as safe houses equipped with security systems. Victims are provided with cellular phones programmed to 911. For witness intimidation in cases of gang-related crime, Hynes partners with the federal authorities and provides for his assistant district attorneys to be cross-designated as assistant United States attorneys.

Attorneys General Steve Carter (Indiana), John Suthers (Colorado), and Tom Corbett (Pennsylvania) discussed their partnerships with federal and local authorities to address the witness intimidation problems that occur in the investigation and prosecution of many different types of crimes. Of considerable importance is the intelligence on gang activity that can be gathered through the use of state, local and federal facilities.

United States Attorney Patrick Meehan (Eastern District, Pennsylvania) provided an overview of the nature of gangs and the enforcement tools available to address gang-related crime at the federal level, i.e. National Gang Intelligence Center, Project Safe Neighborhoods program, FBI’s Safe Street project, the Bureau of Alcohol, Tobacco and Firearms (ATF), Organized Crime Drug Enforcement Task Force (OCDETF) and High Intensity Drug Trafficking Areas (HIDTA).

United States Attorney General Alberto Gonzales joined the Executive Working Group for a round table discussion during which he spoke on school safety in the aftermath of the Virginia Tech tragedy and the gang problem existing in the country today.

The next Executive Working Group is scheduled for July 11, 2007, at the Department of Justice.

NDAA Resolutions Adopted during the April 14, 2007, Meeting of the Board of Directors

Resolution to Support S. 803 and H.R. 1386 to Restore $892 Million in Federal Funding to the Nation’s Child Support Program

WHEREAS, the Deficit Reduction Act (DRA) of 2005 eliminated the ability of states to use federal incentive funds received under Title IV-D of the Social Security Act to match additional federal funds for use in the nation’s child support program; and

WHEREAS, the Board of Directors of the National District Attorneys Association passed a resolution on November 5, 2005, opposing this provision of the DRA; and

WHEREAS, the DRA will result in a loss of $892 million from the nation’s child support program, ranging from a loss of $1.2 million for the District of Columbia to a high of $83.5 million in California; and

WHEREAS, 17.2 million children currently receive child support collected by district attorneys and other state and local officials; and

WHEREAS, the Congressional Budget Office estimates that this reduction in federal funding will result in a reduction of $8.4 billion in child support collections over the next ten years; and

WHEREAS, children who are properly supported by both parents do better in school, are less likely to be abused, neglected, or to come in contact with the Juvenile Justice System, and therefore restored funding will actually save government resources, and more importantly, lead to more productive citizens.

THEREFORE BE IT RESOLVED THAT; the National District Attorneys Association strongly urges the Congress to pass S. 803 and H.R. 1386 before October 1, 2007, to preclude the loss of $892 million that is vital to the continued success and improvement of the nation’s child support system.

Adopted by the Board of Directors, April 14, 2007 (Amelia Island, Florida).

Resolution to Support the Reauthorization and Funding of PL 106-393, the Secure Rural Schools and Communities Self Determination Act of 2000

WHEREAS, from the late 1890s through the early 1900s county forestlands were assigned to the Forest Reserves by the federal government thereby prohibiting the use of the acreage by localities for economic development; and

WHEREAS, because the creation of the Forest Reserves imposed an economic hardship on the localities that relied on those lands for the generation of income, legislation was enacted in 1908 to provide that 25% of revenue collected from those forestlands would be provided to the respective counties for, in part, the improvement of rural schools; roads; and infrastructure; and

WHEREAS, in 2000 the Secure Rural Schools and Communities Self Determination Act was enacted to address the decrease in revenues resulting from a reduction in timber harvesting since 1986; and

WHEREAS, the Secure Rural Schools and Communities Self Determination Act of 2000 has had a positive impact on the development of forest health improvement projects; the stimulation of economic development; and the restoration of critical rural county infrastructure including law enforcement and prosecution; and

WHEREAS, the elimination of this revenue sharing program will negatively impact localities throughout the country with the most significant economic effects occurring in the western and southeastern sections of the nation.

THEREFORE BE IT RESOLVED THAT the National District Attorneys Association urges the Congress to reauthorize the Secure Rural Schools and Communities Self Determination Act of 2000; and

THEREFORE BE IT FURTHER RESOLVED THAT the National District Attorneys Association urges the Congress to extend funding for the program over the next five fiscal years to allow the impacted localities to continue to develop forest health improvement projects; to improve rural county roads, schools, and critical infrastructure such as law enforcement and prosecution; and to allow counties to prepare for the permanent loss of income.

Adopted by the Board of Directors, April 14, 2007 (Amelia Island, Florida).

Note: On May 25, President Bush signed H.R. 2207, the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007. This supplemental appropriations bill, in part, extends funding for the Secure Rural Schools and Communities Self Determination Act of 2000 originally scheduled to terminate on September 30, 2006.4

Status of Additional Federal Legislation

H.R. 1700, the COPS Improvements Act of 2007, sponsored by Representative Anthony Weiner (D-NY) has been passed by the full House of Representatives under a suspension of the rules and has been received in the Senate. The companion bill, S. 368, sponsored by Senator Joseph Biden (D-DE), has been reported favorably by the Committee on the Judiciary without amendment and has been placed on the Senate legislative calendar.

The legislation, if enacted, would authorize grants for the hiring of school resource officers; the establishment and implementation of innovative programs to prevent the manufacture, distribution and use of methamphetamine; and the enhancement of community policing and crime prevention grants. In addition, the legislation would provide for grants for additional community prosecuting programs to include those programs that assign prosecutors to handle cases in specific geographic locations and address counterterrorism problems and specific violent crime issues as identified by local law enforcement and community organizations.

S.456, the Gang Abatement and Prevention Act of 2007, sponsored by Senator Dianne Feinstein (D-CA), has been referred to the Committee on the Judiciary. The companion bill, H.R. 1582 has been referred to the Committee on the Judiciary, Subcommittee on Crime, Terrorism and Homeland Security.

The legislation, if enacted, would in part provide critical funding and personnel at the state and local levels for criminal street gang enforcement teams; improve the dissemination of vital information regarding gang activity among law enforcement agencies through the establishment of a National Gang Activity Database; provide grant funding for the hiring of additional local prosecutors; and establish a short-term state witness protection section within the United States Marshals Service to assist state and local law enforcement with the protection and relocation of witnesses.

President Mat Heck sent a letter in support of the legislation to Senator Feinstein on May 29, 2007.

Newly Introduced Federal Legislation:

S. 1276, The Methamphetamine Production Prevention Act

The Methamphetamine Production Prevention Act (MPPA) was introduced by Senators Richard Durbin (D-IL) and Charles Grassley (R-IA) on May 3 and referred to the Committee on the Judiciary.

S.1276 would, if enacted, establish a grant program to facilitate the development, implementation, and improvement of methamphetamine precursor electronic logbook systems by state and local governments. This system would electronically record and transmit to an electronic database accessible to appropriate law enforcement and regulatory agencies, the information gathered during the sale of a scheduled listed chemical product. At the time of this writing, there are seven co-sponsors: Senator Maria Cantwell (D-WA), Senator Dianne Feinstein (D-CA), Senator Tom Harkin (D-IA), Senator Barack Obama (D-IL), Senator Hillary Rodham Clinton (D-NY), Senator Charles Grassley R-(IA), and Senator Claire McCaskill (D-MO). It is anticipated that similar legislation will be introduced in the House of Representatives by Representative Keith Ellison (D-MN).

NDAA President Mat Heck sent a letter in support of the legislation to Senator Durbin on April 27.

1 Sponsor: Representative David Scott (D-GA); co-sponsors: 66 (as of May 20, 2007).The companion bill, S.442, has been reported favorably by the Committee on the Judiciary. The full Senate has not yet taken any action. Please see the March/April issue of The Prosecutor for a detailed history of the bill.

2 Public Law 109-248.

3 28 CFR, Part 72. The interim rule was effective February 28, 2007.

4 SEC. 5401. (a) For fiscal year 2007, payments shall be made from any revenues, fees, penalties, or miscellaneous receipts described in sections 102(b)(3) and 103(b)(2) of the Secure Rural Schools and Community Self-Determination Act of 2000 (Public Law 106-393; 16 U.S.C. 500 note), not to exceed $100,000,000, and the payments shall be made, to the maximum extent practicable, in the same amounts, for the same purposes, and in the same manner as were made to states and counties in 2006 under that statute. (b) There is appropriated $425,000,000, to remain available until December 31, 2007, to be used to cover any shortfall for payments made under this section from funds not otherwise appropriated. (c) Titles II and III of Public Law 106-393 are amended, effective September 30, 2006, by striking “2006” and “2007” each place they appear and inserting “2007” and “2008,” respectively.