By James D. Polley, IV
Student Loan Forgiveness
Of key interest during this new Congress will be NDAA’s focus on obtaining student loan relief for prosecutors. This effort was initiated in 1999 by then NDAA President John Justice and continues under the stewardship of NDAA President Walsh.
The Prosecutors and Defenders Incentive Act (S.1091 in the Senate and H.R. 2198 in the House) would have established a program of student loan forgiveness for borrowers who agree to remain employed, for at least three years, as state or local criminal prosecutors; or state, local or federal public defenders in criminal cases.
In the Senate, the bill was referred to the Committee on Health, Education, Labor, and Pensions; in the House, the bill was referred to the House Committee on Education and the Workforce. No further action was taken on the bills in either committee.
Independent of these two bills, attempts were made to have the same provisions added as an amendment to a number of bills in the Senate Judiciary Committee. Opposition by two senior committee members defeated these attempts.
With the end of the 108th Congress, both S. 1091 and H.R. 2198 terminated. If these bills are reintroduced, they will have new bill numbers and possible text changes.
New Congress
With the start of the 109th Congress in January 2005, there will be several important changes that will impact NDAA tactics and the possible outcome in this effort.
As a result of the elections in November, we lost one sponsor in the Senate and three in the House; given our sparse numbers that was significant. There were 20 sponsors in the Senate, a number that had remained constant throughout the year; in the House, there was an increase of four sponsors over the summer for a total of 47 sponsors. Unfortunately, most of the sponsors in both houses are not in key positions that could help move the bills.
NDAA President Walsh has written to almost all the new members of Congress and in his letter he highlighted the issue of student loan forgiveness as a matter of major interest to NDAA. This effort may regain lost numbers and even increase our support.
The Senate
Senator Durbin (D-IL) is likely to raise his profile during the 109th Congress by becoming the minority whip/assistant minority leader, replacing Senator Reid (D-NV) who will move up to be the new minority leader. Senator Durbin has been the primary sponsor of the loan effort and his new role may add some emphasis to consideration of the bill.
In the Senate, term limits for committee chairs means that the two committees that could move the legislation will have new chairs. In addition to the new chairs, there will be new committee assignments for some of the members that could have an impact on opportunities for NDAA interests. We will not be fully aware of all these changes until Congress organizes in January.
Senator Gregg (R-NH) will be leaving as chair of the Senate Health, Education, Labor and Pensions Committee (HELP) to take over the Budget Committee. The HELP Committee has primary jurisdiction over education issues.
Senator Enzi of Wyoming is slated to be the new chair of the HELP Committee. NDAA background information shows that Senator Enzi was previously approached about supporting the loan effort but was non-committal about the issue.
The NDAA state director for Wyoming has been made aware of Senator Enzi’s probable assumption of the chair (it is not a certainty until January). He is going to meet with the other state prosecutors and develop an approach to Enzi. They know that while the senator will probably not openly support the bill, his tacit support is paramount.
NDAA’s education consultants for the effort will be taking a look at Senator Enzi’s priorities for the coming year, as well as other changes that may occur on the committee. They will apprise NDAA leadership of their assessment of opportunities to advance the bill.
In the Senate Judiciary Committee, the heir apparent is Senator Specter (R-PA), a former district attorney of Philadelphia and a former member of NDAA. NDAA background materials do not indicate that he has been a supporter of the loan bill previously but given the number of times that Senator Durbin has brought the issue before the Judiciary Committee, Specter must be aware of it.
There will be several significant crime related bills that will be considered during the 109th Congress, and they could serve as a vehicle to carry loan forgiveness.
The House
Efforts to pass loan forgiveness in the House may have encountered a new obstacle if a policy articulated by Speaker Hastert (R-IL) is implemented.
In statements this fall he indicated that no bills will pass the House unless a “majority of the majority” support the legislation. This means that nothing will pass unless a majority of the Republican members of the House are supportive; a numerical majority comprised of Democrats and Republicans will not suffice.
Using the rules of the House, the Speaker can prevent any bill from reaching the floor for a vote unless it meets his criteria. He has indicated that this test will hold true even for legislation that passes in the Senate.
NDAA support in the House indicates that most cosponsors are Democrats and, under the Speaker’s standard, are of limited value unless a majority of the Republicans can be enlisted in the effort. Local prosecutors need to make a strong effort to get their Republican members of the House on board if we are going to have any success.
Thus, even if loan forgiveness or any bill it is added onto passes the Senate, the House will still be an abnormally strong challenge.
Tax Credits
Reform of the income tax code is a stated priority of the 109th Congress and, at the suggestion of an assistant district attorney from Oklahoma, NDAA is exploring the possibility of a tax credit for student loans rather then “forgiveness” per se. In addition to taking advantage of an item of interest to both the administration and Congress, a tax credit has at least three advantages over loan forgiveness.
First, the senior members of the Senate who have objected to the loan program have indicated they may be more favorably disposed to an alternative program of this nature.
Secondly, any forgiveness bill would only help a limited number of prosecutors and public defenders based on funding limitations. The amount of money provided annually would dictate how many could take advantage of the program. Even with full funding, rough calculations indicate that only about 3000 people could get relief under the program each year (out of some 60-70,000 possible candidates). Tax credit would be available to all who meet any criteria established in the tax code.
Lastly, the Prosecutors and Defenders Incentive Act only authorizes the expenditure of federal funds for a loan forgiveness program; it does not actually provide those funds. Each year a new battle would have to be fought to get funding for the forgiveness program during the appropriations process and each year the viability of any forgiveness program would be in jeopardy. For a tax credit, nothing further is legislatively required once the initial provisions are established.
The education consultants have been asked to review the issue of educational tax credits as an alternative to the loan forgiveness bills.
Other Legislation
In addition to the Prosecutors and Defenders Incentive Act, the student loan forgiveness bill, the end of the 108th Congress left a number of other unfinished items that were of interest to NDAA. We can expect to see most of these during the 109th Congress.
Gang Prevention and Effective Deterrence Act
S. 1735 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 and would give the attorney general authority to designate high intensity interstate gang activity areas.
Of particular interest to local prosecutors are provisions that amend 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.
The bill was ready for action by the full Senate in early July but was never brought for a vote. There was no comparable bill in the House and discussions with staff from the House Judiciary Committee indicated that their philosophy was so radically different, that they were not interested in the Senate bill.
John Breaux Elder Justice Act
S. 333, the Elder Justice Act, was ready for action by the full Senate in late September but was never taken to a vote. The comparable bill in the House, H.R. 2490, was referred to four different committees for review and never progressed further.
Of interest to prosecutors would have been grants for elder justice programs and training.
The Second Chance Act
H.R. 4676 reauthorizes the grant programs of DOJ concerning reentry programs and activities relating to the reentry of offenders into the community.
The bill was referred for action by several House Committees; several comparable bills were introduced in both the House and Senate. This bill was one supported by the president in his State of the Union speech this year.
National Sex Offender Registry Act of 2004 (Dru’s Law)
S. 2154 and H.R. 3929 established a national sex offender registry with requirements for states to provide data. They sought to penalize states that do not provide information with reductions in formula federal grant funds available under the Crime Bill.
Passed the Senate but never reported out of committee in the House.
Office of National Drug Control Policy Reauthorization Act
S.1860, the Office of National Drug Control Policy Reauthorization Act reauthorizes the Office of National Drug Control Policy (ONDCP, the Drug Czar). Sponsored by Chairman Hatch the bill was introduced in November 2003.
Of interest to local prosecutors are provisions that would provide funds, through the High Intensity Drug Trafficking Area (HIDTA) to ensure neighborhood safety, including the prevention of witness intimidation and amends the Crime Bill of 1968 to authorize the attorney general to make grants to state or local prosecutors for drug treatment programs as alternatives to prison.
Even though sponsored by the committee chair, no action was taken by the Senate Judiciary Committee. There was no comparable bill in the House.
Department of Justice Appropriations Authorization Act
H.R. 3036 reauthorizes the appropriations to support DOJ and its various activities through Fiscal Year 2006. Amends many of the existing grant programs to include merging the Byrne and Local Law Enforcement Block Grants into the Justice Assistance Grant.
Passed the House in March; referred to the Judiciary Committee without further action. The Senate appropriations bill for DOJ indicated that the Justice Assistance Grant was not favored as a replacement for the two grant programs but the final appropriation did roll the two programs into the Byrne Grants.
Failure to pass the authorization act does not jeopardize spending for DOJ programs so long as the annual appropriations provides funding for them. It took 17 years to pass the last authorization act for DOJ.
Public Safety Officers’ Defense Act
S. 2760, the Public Safety Officers’ Defense Act limits federal jurisdiction over a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court for a crime that involved the killing of a public safety officer while the public safety officer was engaged in the performance of official duties, or on account of the public safety officer’s performance of official duties. It would both limit and expedite federal collateral review of convictions for killing a public safety officer.
There is no comparable bill in the House.
National Black Prosecutors Association’s 2005 Conference and Job Fair
The National Black Prosecutors Association’s 2005 Conference and Job Fair will take place Sunday, August 14 through Saturday, August 20, 2005, at the Hyatt Regency Philadelphia at Penn’s Landing in historic Society Hill. The NBPA Job Fair provides a unique venue for highly qualified candidates, law students, recent law school graduates and experienced attorneys from across the nation, to meet and interview for prospective employment in prosecutors’ offices at the local, state, and federal levels. For additional information contact: Carmen M. Lineberger, National Black Prosecutors Association, Vice-President of Membership and 2005 Conference Coordinator, (215) 686-8090, Carmen.Lineberger@Phila.Gov.
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