Student Loan Forgiveness for Prosecutors and Public Defenders
As many of you are aware, student loan forgiveness for prosecutors and public defenders is an issue NDAA has been pursuing for the past 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 had hoped that forgiveness of federally funded loans might serve as an incentive to join prosecutors’ offices.
The new president of the American Bar Association (ABA) has chartered a national commission to look at student loans and their impact on all public sector lawyers, not just prosecutors and public defenders. The charter of the ABA Commission is to document the burden of student loans on public sector lawyers and review methods to alleviate this burden including: loan repayment assistance or loan forgiveness programs; building support for loan forgiveness programs; considering creation of scholarships for students interested in pursuing public interest legal careers; and developing a major report on the status of loan forgiveness programs and the need for more effort in this area.
NDAA President Kevin Meenan has appointed J. Tom Morgan, the DeKalb County, Georgia, prosecutor to serve as the NDAA liaison to the commission. Mr. Morgan has been very involved in trying to get loan relief under the Georgia system.
Background
In 1999 then-NDAA President John Justice sought and received clarification from the Department of Education indicating that prosecutors were considered law enforcement under the loan forgiveness provisions of the Perkins Student Loan Program. Although public defenders were included in the loan forgiveness group as part of the initial inquiry with the support of DOJ, the ABA and public defender organizations, Education’s response indicated that public defenders were not included in the Perkins Program. The response from Education also indicated that Stafford Loans covered neither prosecutors nor defenders. (See The Prosecutor, July/August 1999.)
In January 2000, a strategy session was held between the ABA and NDAA on how to proceed with the effort to obtain loan forgiveness under both of these programs. It is important to understand that any loan forgiveness is not truly free because the federal government would have to repay the loan instead of the student. Therefore, to make loan forgiveness for prosecutors and public defenders a viable option, the cost consequences have to be minimized. Because 2000 was an election year, the ABA and NDAA mutually decided that any loan forgiveness effort would have to be low key—to avoid being involved in election year politics and to keep others from trying to join the effort and therefore making the program cost-prohibitive.
In April 2000, Congressman Campbell (R-CA), running for the Senate against incumbent Senator Dianne Feinstein, decided to introduce a bill specifically adding public defenders to the Perkins Program. Despite efforts to convince both Congressman Campbell and public defender groups that this was not a tactically sound route, they persisted. Experience had shown that most prosecutors had the Stafford Program and it was assumed that the same would be true for public defenders. NDAA opposition to this effort was predicated on the belief that the result would be of minimal benefit for public defenders and would hurt the greater effort to gain forgiveness under the Stafford Program for both groups.
The bill was referred to the House Education and the Workforce Committee and stirred their interest by the inclusion of any attorneys in the Perkins Program and the need for technical corrections to the Higher Education Act. The position of the committee chair and staff 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.
In an effort to stop this bill, then-NDAA President Stuart VanMeveren sent letters to all 49 members of the committee and many NDAA Board members conveyed their concerns to their members of congress.
Action by the House Committee on Education and the Workforce
On Thursday, May 25, the House Committee on Education and the Workforce took under consideration technical amendments to the Higher Education Act. One of these, offered by then-Chairman Congressman Goodling (R-PA), would have excluded attorneys 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. Congressman Martinez (D-CA) 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.
Democratic 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, expressed the need to recruit and retain a core of professional prosecutors and defense counsel.
The committee chair then offered his own amendment that adopted Mr. 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 (Mr. Goodling voted against his own amendment) with four Republicans, (Mr. Deal (R-GA), Mr. Schaffer (R-CO), Mr. Castle (R-DE) and Mr. Fletcher (R-KY)), voting to ensure that prosecutors continue to receive loan forgiveness under the Perkins Program.
The technical corrections then passed a vote on the floor of the House and went to the Senate for action. No action was ever taken in the Senate on the technical corrections, and they died with the end of the last Congress.
Observations
During the committee debate on the need for loan forgiveness, it was abundantly clear that the committee 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 places any further loan forgiveness in difficulty since every addition to the forgiveness provisions raises the price tag.
Mr. Goodling, the chair, retired at the end of the last congress. Mr. Martinez, who was vocal in his belief that attorneys didn’t need loan forgiveness, but who voted to support the amendment nonetheless, lost his primary and did not return. Mr. Campbell also lost his effort to unseat Senator Feinstein.
Under other programs, federal employees, not just attorneys, can get forgiveness for student loans under 5 USC 5379 which permits department and agency heads to fund loan forgiveness programs within each department.
The military is having such difficulty keeping attorneys that a $10,000 bonus has been authorized for those staying beyond their 10th year.
The appropriations bill for the Senate this year includes a loan forgiveness program for Senate staff. In the House, a similar provision was not included in its appropriations bill, but H.R. 2555 would extend the provisions of 5 USC 5379 to legislative employees.
The Federal Court Improvement Act (H.R. 2522) includes a loan forgiveness provision for federal public defenders.
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