By James D. Polley, IV

At the time that this is being prepared, Congress is in recess and the members are rapidly moving towards election year gridlock. Overriding everything is the fall election and the desire of the members to spend as much time as possible in their home districts. With a target recess date of October 1, that leaves very little time to accomplish anything. With the press of unfinished business—primarily approving the appropriations bills to fund the federal government—the members of Congress will be hard-pressed to depart that early. In reality they will probably be in Washington until the November elections.

Department of Justice Appropriations

The appropriation passed by the House provides a total of $20.6B for DOJ; $940M more than FY04 and $842M above the president’s request. Much of the increase is for federal programs and personnel; local programs have, again, taken a significant hit. Several contentious amendments were offered to the appropriations bill; many designed as limitations on the Patriot Act.

The amendment offered by Congressman Paul (R-TX), would have prohibited the use of federal funds by DOJ to prosecute medical personnel prescribing marijuana in states that provide for such use. The amendment was objected to on a point of order as “constituting legislation in an appropriations bill” and the objection was sustained by the chair.

Congressman Farr (D-CA) offered an amendment to prohibit the use of federal funds to prevent the states of Alaska, California, Colorado, Hawaii, Maine, Maryland, Oregon, Vermont or Washington from implementing state laws authorizing the use of medical marijuana. After a challenged voice vote, the measure failed 148-268.

Another amendment was offered by Congressman Otter (R-ID) to limit delayed notice search warrants by narrowing the circumstances for notice of the execution of the warrant. Under the new circumstances a court would have to find reasonable cause to believe that providing immediate notification of the warrant “will endanger the life or physical safety of an individual, result in flight from prosecution, or result in the destruction of or tampering with the evidence sought under the warrant.” The amendment was withdrawn by the sponsor. This is the second year that Congressman Otter has tried to amend the DOJ appropriations bill with this attack on the Patriot Act.

An amendment offered by Congressman Sherman (D-CA) would have prohibited the use of funds to detain a person apprehended on United States territory for more than 30 days, solely because that person was classified as an enemy combatant; to defend in court the detention for more than 30 days of a person, apprehended on United States territory, solely because that person is classified as an enemy combatant; and to classify any person as an enemy combatant if that person is apprehended on United States territory. This failed to pass on a voice vote

Congressman Sanders (I-VT) offered an amendment that would have prohibited the use of federal funds to make an application under section 501 of the Foreign Intelligence Surveillance Act of 1978 for an order requiring the production of library circulation records, library patron lists, library Internet records, book sales records, or book customer lists. The amendment failed on a tie vote of 210-210.

Federal programs include:

• $5.22B for the FBI ($625M above FY04)
• $1.66B for DEA ($77M above FY 04) and the same as the president’s request
• $753M for the U.S. Marshals Service ($27M above FY 2004)
• $870M for the Bureau of Alcohol, Tobacco, Firearms and Explosives ($43M above FY04)

The appropriation also provides $3B for state and local law enforcement programs ($886M above the president’s request and $103M below FY04), including:

• $634M for the Edward Byrne Justice Assistance Grants program
• $349M for juvenile delinquency prevention and accountability programs
• $384M for violence against women prevention and prosecution programs
• $176M to eliminate DNA analysis backlogs
• $325M to reimburse states for criminal alien detention costs

Student Loan Forgiveness

The chances for any significant movement on student loan forgiveness is virtually impossible at this time based on opposition in the Senate.

In the House, the leadership brought up a number of bills that they passed last year, but had languished in the Senate. Unfortunately H.R. 2198, the Prosecutors and Defenders Incentive Act, did not have enough Republican sponsors (four of 44) in the House to develop the synergism necessary to bring it out for a vote during this week.

In the Senate, a number of separate efforts are being made to advance the issue. The loan forgiveness bill introduced by Senators Durbin (D-IL) and DeWine (R-OH) was added to a gang violence bill in the Senate Judiciary Committee. That bill was introduced to contrast provisions in another gang violence bill introduced by the committee chair, Senator Hatch (R-UT), and Senator Dianne Feinstein (D-CA) (see below).

The gang bills were to have been marked up (voted upon) by the Senate Judiciary Committee several times during May and June, but each session was cancelled as the differences were too great. NDAA President McCulloch attempted to assist in the reconciliation effort while supporting the inclusion of the loan provisions and some of his efforts were adopted. Unfortunately, objections required the removal of the student loan provisions before the bills could progress.

Efforts had been made previously to add the loan provisions to bills focused on DNA and capital punishment. The House passed their version of the bill but did not add loan forgiveness. Efforts were being made to add it to the Senate version but objections to the DNA bill by some senators and by the administration have tied up any progress in that direction.

S.2396, the Federal Courts Improvement Act of 2004, was to have been marked up by the Senate Judiciary Committee during July but has been postponed until after the recess. Senator Hatch introduced the bill on May 10, 2004, but there have been no hearings. If the mark-up is held, a substitute version is to be offered as an amendment which contains the Durbin-DeWine loan forgiveness provisions for local prosecutors and public defenders.

The primary legislation to incorporate the loan provisions was the reauthorization of the Higher Education Act. NDAA President Walsh and the NDAA State Director for New Hampshire, Jim Reams, had a meeting with Senator Gregg (R-NH), chair of the Senate Committee that will consider the Education Act. Senator Gregg acknowledged NDAA’s efforts in regard to the loan forgiveness, but he felt that the political climate made any progress on this bill difficult with the reauthorization bill likely to be held over for the new congress.

Prosecutors in Oklahoma have suggested an alternative approach if NDAA continues to be stymied in obtaining loan forgiveness. They have suggested making the repayment of the principal on student loans an above-the-line federal income tax deduction as opposed to outright student loan forgiveness. That would be similar to the current income tax deduction for student loan interest. Being able to deduct payments made towards both the principal and interest would be a substantial benefit.

Gang Prevention and Effective Deterrence Act

S. 1735, the Gang Prevention and Effective Deterrence Act, was finally marked up by the Senate Judiciary Committee after having been postponed numerous times.

Sponsored by Senators Hatch (R-UT) and Feinstein (D-CA) the bill would amend the federal criminal code to prohibit various criminal street gang related offenses, including participating in a criminal street gang by committing two or more predicate gang crimes in furtherance of the activities of such gang to gain entrance to or to maintain or increase position in the gang.

The bill amends the Controlled Substances Act to prohibit murder and other violent crimes committed during and in relation to a drug trafficking crime; and amends the Violent Crime Control and Law Enforcement Act of 1994 to authorize the use of grants by the attorney general to fund programs that enable prosecutors to more effectively address gang violence, to fund technology and training for prosecutors, and to create and expand witness and victim protection programs.

• Authorizes the attorney general to designate high intensity interstate gang activity areas.
• Prohibits traveling in, or causing another to travel in, interstate or foreign commerce with intent that two or more murders be committed in violation of state or federal law.
• Expands the scope of predicate crimes for authorization of interception of wire, oral and electronic communications to cover violations relating to criminal street gangs.
• Modifies code provisions regarding the treatment of federal juvenile offenders. Provides that, in any case in which a juvenile is tried as an adult in federal court, that juvenile’s criminal record shall be made available in the same manner as is applicable to the federal criminal records of adult defendants.
• At the mark-up, Senator Durbin offered an amendment that would have substituted his gang bill, including the student loan forgiveness provision for that of Senator Feinstein. No specific discussion was conducted about loan forgiveness during the mark-up. His amendment was defeated 12-7.

Advancing Justice Through DNA Technology Act

S. 1700, the Advancing Justice Through DNA Technology Act of 2003, was also on the calendar for mark-up by the Senate Judiciary Committee. This is the same bill that passed the House last fall. Action in the Senate has been held up by several committee members introducing their own bill that is more in keeping with the president’s DNA initiatives.

Negotiations are continuing regarding the DNA bill, which may cause a mark-up to be further delayed.

While NDAA does not oppose the bill, it does have serious concerns with several provisions including the lack of accountability of funding for defense counsel and the lack of judicial oversight on the designation of defense counsel in capital cases. The NDAA president has shared these concerns with both the House and Senate.

Law Enforcement Officers Safety Act

H.R. 218, the Law Enforcement Officers Safety Act, was signed into law (Public Law No. 108-277) on July 22, 2004, by President Bush.

The Law Enforcement Officers Safety Act amends the federal criminal code to authorize qualified state, local and federal law enforcement officers (including certain qualified retired officers) who are carrying photographic identification issued by their governmental agency, notwithstanding state or local laws, to carry a concealed firearm. Provides that such authorization shall not supersede state laws that permit private entities to prohibit the possession of concealed firearms on their property; or prohibit the possession of firearms on state or local government property.

The bill does not provide liability relief for sponsoring jurisdictions for misuse of weapons by police officers nor does it appear to preclude local law enforcement agencies from prohibiting police officers from carrying their firearms out of state.

Mentally Ill Offender Treatment and Crime Reduction Act

S. 1194, the Mentally Ill Offender Treatment and Crime Reduction Act, was introduced by Senator DeWine (R-OH) (a former prosecutor in Ohio) last year and passed the Senate last October. The House Judiciary Committee is now considering the bill.

The Mentally Ill Offender Treatment and Crime Reduction Act amends the 1968 Crime Bill (the Omnibus Crime Control and Safe Streets Act of 1968) to authorize the attorney general to award grants to state and local governments to plan and implement programs that:

• Promote public safety by ensuring access to mental health and other treatment services for mentally ill adults or juveniles; and
• Are overseen cooperatively by a criminal justice agency, juvenile justice agency or mental health court and a mental health agency (collaboration programs).

These programs are designed to target nonviolent adults or juveniles who:

• Have been diagnosed as having a mental illness or co-occurring mental illness and substance abuse disorders or who manifest obvious signs of such an illness or disorder during arrest or confinement or before any court; and
  
• Face criminal charges and are deemed eligible on the ground that the commission of the offense is the product of the person’s mental illness.

The grants can be used to create or expand:

• Mental health courts or other court-based programs for such persons
• Programs that offer specialized training to criminal or juvenile justice agency officers and employees and mental health personnel in identifying symptoms in order to respond appropriately to individuals with mental illnesses
• Programs that support cooperative efforts by criminal, juvenile justice and mental health agencies to promote public safety by offering mental health and substance abuse treatment services
• Programs that support intergovernmental cooperation between state and local governments with respect to the mentally ill offender.

It also directs the attorney general to develop a list of best practices for appropriate diversion from incarceration of adult and juvenile offenders.

The Second Chance Act of 2004

H.R. 4676, the Second Chance Act of 2004, was introduced by Representatives Portman (R-OH), Souder (R-IN), Davis (D-IL) and Tubbs Jones (D-OH) (Ms. Tubbs Jones formerly served as the prosecutor in Cleveland).

In his State of the Union speech last January, the president articulated the need to take the initiative to reduce recidivism. The president proposed that the Department of Labor, the Department of Housing and Urban Development, and the Department of Justice work together to help ex-offenders find and keep employment, obtain transitional housing and receive mentoring—the three key requirements for successful reentry. A particular emphasis was placed on the participation of faith-based partnerships.

Not surprisingly, the Second Chance Act of 2004 shares these same principles with the goal of reducing recidivism, increasing public safety, and helping address the growing population of ex-offenders returning to communities. The bill focuses on the same general areas: jobs, housing, mental health and substance abuse treatment, and strengthening families.

The salient points of H.R. 4676 include:

• Creates a national resource center to collect and disseminate best practices and provide training and support
• Creates a federal interagency taskforce to identify programs and resources on reentry, identify ways to better collaborate, develop interagency initiatives and a national reentry research agenda, and review and report to Congress on the federal barriers that exist to successful reentry with recommendations
• Removes the age limitation of at least 60 years of age for grandparents to receive support and services while caring for their grandchildren due to parental incarceration
• Ensures that the Drug-Free Student Loans provision only applies to offenses committed while receiving federal aid and encourages treatment (This has nothing directly to do with reentry but cleans up an unintended consequence of legislation sponsored by Congressman Souder several years ago.)
• Provides grants to states and local governments that may be used to develop or adopt procedures to ensure that dangerous felons are not released from prison prematurely
• Provides grants to states and local governments that may be used to utilize established assessment tools to assess the risk factors of returning inmates and prioritizing services based on risk
• Provides grants to community-based organizations that may be used for mentoring of adult offenders or providing transitional services for re-integration into the community
• Provides grants to states and local governments that may be used to provide mental health services, substance abuse treatment and aftercare, and treatment for contagious diseases to offenders in custody and after reentry into the community
• Provides grants to states and local governments that may be used to facilitate collaboration among corrections and community corrections, technical schools, community colleges, and workforce development employment services
• Provides grants to states and local governments that may be used to provide structured post-release housing and transitional housing, including group homes for recovering substance abusers, through which offenders are provided supervision and services immediately following reentry into the community
• Provides grants to states and local governments that may be used to expand family-based treatment centers that offer family-based comprehensive treatment services for parents and their children as a complete family unit.

Local Law Enforcement Enhancement Act of 2004

As an amendment to S. 2400, the National Defense Authorization Act for Fiscal Year 2005, the Local Law Enforcement Enhancement Act of 2004 passed by a vote of 65-33 in the Senate. This amendment captures the hate crimes legislation, originally sponsored by Senator Kennedy that has been offered for the past several Congresses, was passed in a similar fashion in 2000 but was cut out in conference with the House.

The bill authorizes the attorney general to provide technical, forensic, prosecutorial or any other form of assistance to state and local law enforcement in the criminal investigation or prosecution of hate crimes. Priority is to be given to crimes involving multiple states.

The attorney general would be able to award grants to assist state and local law enforcement officials with the extraordinary expenses associated with the investigation and prosecution of hate crimes.

DOJ could make grants to state and local programs designed to combat hate crimes committed by juveniles, including programs to train local law enforcement officers in identifying, investigating, prosecuting, and preventing hate crimes.

Federal law is changed (Chapter 13 of title 18, United States Code) by adding the use of fire, a firearm, or an explosive or incendiary device, as a weapon used in a hate crime as a federal offense; and expanding federal hate crimes to include offenses predicated upon the actual or perceived religion, national origin, gender, sexual orientation or disability of any person.

Federal prosecution of a hate crime requires a certification by the attorney general, or specified designees, that:

• There is reasonable cause to believe that the actual or perceived race, color, religion, national origin, gender, sexual orientation, or disability of any person was a motivating factor underlying the alleged conduct of the defendant; and
• That there has been consultation with state or local law enforcement officials regarding the prosecution and it has been determined that:
• the state does not have jurisdiction or does not intend to exercise jurisdiction;
• the state has requested that the federal government assume jurisdiction;
• the state does not object to the federal government assuming jurisdiction; or
• the verdict or sentence obtained pursuant to state charges left demonstratively un-vindicated the federal interest in eradicating bias-motivated violence.

Patient Safety and Quality Improvement Act

S. 720, the Patient Safety and Quality Improvement Act, passed the Senate in late July after being reported out of the Health, Education, Labor and Pensions (HELP) Committee. The bill was introduced by Senator Jeffords (I-VT).

It amends the Public Health Service Act to designate patient safety data as privileged and not subject to a subpoena, discovery, disclosure, or admission as evidence in any federal, state, or local civil, criminal, or administrative proceeding.

“Patient safety data” is defined as any data, reports, records, memoranda, analyses or statements that could result in improved patient safety or health care quality or health care outcomes, basically an “audit” privilege on medical records. The prohibition does not impact accessibility to individual records.

S. 720 does not limit other privileges available that provide greater confidentiality protections; affect the requirements of federal, state or local law pertaining to patient-related data that is not privileged or confidential under this act; affect the implementation of the Health Insurance Portability and Accountability Act of 1996 (medical records privacy) or the Social Security Act; limit the authority of providers or PSOs from contracting to require greater confidentiality or delegate the authority to make permitted disclosures; or prohibit a provider from reporting crime to law enforcement authorities.

The bill allows civil actions for violations of the act.

A similar bill passed the House last year by a vote of 418-6. It had been sponsored by Congressman Bilirakis (R-FL). The greatest distinction between the Senate and House bills, impacting local prosecutors, is its applicability to criminal cases. The Senate version makes the work product applicable, the House does not.