Student Loan Forgiveness
The chances for any significant movement on student loan forgiveness this year are remote. Legislative gridlock and the pending election cycle have all but assured that any major legislation will be held until the 109th Congress begins in January 2005.
A number of separate efforts are being made to advance the issue to help those in financial straits. 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. Another gang violence bill was introduced by the committee chair, Senator Hatch (R-UT), and Senator Dianne Feinstein (D-CA), and reconciliation of the two on a number of issues proved difficult.
Efforts were made to add loan provisions to bills on DNA and capital punishment. The House passed their version of the bill but did not add loan forgiveness. Attempts to add it to the Senate version failed when objections to the DNA bill by some senators and by the administration tied up any progress in that direction.
The primary vehicle to potentially move loan provisions was the reauthorization of the Higher Education Act, however any progress on this bill is difficult. At this time, it appears that the reauthorization bill will be held over for the new congress.
As previously indicated, this is a difficult but not impossible effort. NDAA will continue to try to ensure that this is not left behind. Local prosecutors can support NDAA’s efforts by contacting their members of Congress and making sure that they understand the impact on your communities.
A few suggestions if you do plan on seeing your members of Congress:
- See them at home; have the district office make the appointment.
- Illustrate the issue with war stories that show the impact of turnover and loan repayment on your office. Make this a local issue that affects the safety of voters in your communities.
- Send a thank you letter reminding them of the issue.
- Follow up. Keep asking what they have done to support you on the issue.
Consular Notification Video Is Now Available Online Via Streaming Internet Download
The State Department has just added an important new feature to their Consular Notification Internet site: a consular notification video via streaming Internet download at http://travel.state.gov/CNAvideo.html. The video is just 11 minutes long but it covers the important aspects: what, why and how. Police agencies in your jurisdiction would also benefit from the video.
Federal Victims’ Rights Statute
Unable to muster the two-thirds super majority needed to pass a constitutional amendment, the Senate passed S. 2329, the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act (the Victims’ Rights Act) by a vote of 96-1. It is yet to be acted upon by the House.
The president and Department of Justice were supportive of the constitutional amendment; there is no indication that they were consulted on the substituted legislation. Further, since the legislation was not the subject of any hearings, the legislative history is limited to the floor debate before the vote. While the immediate impact is on the federal system, there is an indirect impact on state systems.
The bill authorizes a total of $51M over five years for crime victim assistance grants administered by the Department of Justice to establish and maintain legal assistance programs throughout the nation. It also provides for $25M over five years to develop and implement computer-based victim notification systems.
These grants are based on adoption by the states of victims’ rights laws that are “substantially equivalent” to the federal rights. This is an authorizing statute and does not actually provide any funding for these programs.
In S. 2329 a crime victim is defined as a person directly and proximately harmed as a result of the commission of a federal offense. In the case of a crime victim who is under 18 years of age, incompetent, incapacitated or deceased, the legal guardians of the crime victim or the representatives of the crime victim’s estate, family members or any other persons appointed by the court, may assume the crime victim’s rights. The defendant cannot be named as guardian or representative. A crime victim, the crime victim’s lawful representative and the attorney for the government may assert these rights. S.2329 specifically uses “the,” not “a” and the distinction will be subject to debate. The parent accused of abusing a child would not be able to assert the crime victim’s rights on behalf of the child, but the raped inmate would have full rights since he is the crime victim in the rape.
Unlike the proposed Constitutional amendment, the statutory provision does not appear to limit its applicability to only victims of violence and would include white collar cases. In a case where the federal court finds that the number of crime victims makes it impracticable to accord all of the crime victims rights, the court can fashion a procedure to provide for them.
The statutory provisions articulate the following rights for crime victims in federal cases:
- To be reasonably protected from the accused
- To reasonable, accurate, and timely notice of any public proceeding involving the crime or of any release or escape of the accused (trial or appellate proceedings); (Sufficiently given in advance of a proceeding to give crime victims the opportunity to arrange their affairs in order to be able to attend that proceeding; Scheduling of proceedings should take into account the victims’ schedules to facilitate effective notice)
- Not to be excluded from any such public proceeding (The government is not responsible for paying for victims’ travel and lodging; Grants victims the right to attend and be present throughout all public proceedings. This right is limited in two respects: right is limited to public proceedings; grand jury proceedings are excluded; the government or the defendant can request, and the court can order, judicial proceedings to be closed under existing laws)
- To be reasonably heard at any public proceeding involving release, plea or sentencing (Victim acts as an independent participant in the proceedings; Intended to allow crime victims to directly address the court in person, a right independent of the government or the defendant; Not necessary for the victim to obtain the permission of either party to do so; Does not provide a right to counsel but recognizes that victims may enlist counsel on their own)
- To confer with the attorney for the government in the case (Victims are able to confer about proceedings after charging; Does not give the crime victim any right to direct the prosecution)
- To full and timely restitution as provided in law
- To proceedings free from unreasonable delay
- To be treated with fairness and with respect for the victim’s dignity and privacy.
In any hearing or trial, the judge has to ensure that the crime victim is afforded these rights and, if they are not, the reasons for denying them must be clearly stated on the record.
The legislation charges federal officials in DOJ and all other federal departments and agencies engaged in the detection, investigation or prosecution of crime to make their “best efforts to see that crime victims are notified of, and accorded” these rights.
If there is a “material conflict of interest” between the prosecutor and the crime victim, the prosecutor must advise the crime victim of the conflict and take reasonable steps to direct the crime victim to the appropriate legal referral, legal assistance or legal aid agency. The bill does not address any ethical considerations requiring prosecutors to withdraw from the case, or be withdrawn, when their decisions are challenged by a victim.
The notice of release of the accused must not be given if the notice might endanger anyone’s safety.
If a federal court denies any right of a crime victim provided by this legislation or under the Federal Rules of Criminal Procedure, the government or the crime victim may apply for a writ of mandamus to the appropriate court of appeals. The court of appeals is directed to address the writ in a timely manner and can order the relief necessary to protect the crime victim’s rights.
In any appeal in a criminal case, the government may assert as error the district court’s denial of any crime victim’s right in the proceeding.
A failure to provide a right does not give grounds for a new trial.
The statute does not authorize a cause of action for damages.
The statute provides for the attorney general to write regulations to enforce these rights. They are to include an administrative authority within DOJ to receive and investigate complaints; to require training for employees of DOJ; to contain disciplinary sanctions, including suspension or termination from employment for willful or wanton failure to comply; and provide that the attorney general, or the designee, shall be the final arbiter of the complaint without judicial review.
DOJ will be able to make grants to state, tribal and local prosecutors’ offices, law enforcement agencies, courts, jails and correctional institutions, and to qualified public and private entities, to develop, establish and maintain programs for the enforcement of crime victims’ rights.
DOJ will be able make grants to state, tribal and local prosecutors’ offices, law enforcement agencies, courts, jails and correctional institutions, and to qualified public or private entities, to develop and implement state-of-the-art systems for notifying victims of crime of important dates and developments relating to criminal proceedings, provided that the jurisdiction has laws substantially equivalent to the federal provisions. These notification systems may be integrated with existing case management systems operated by the recipient of the grant.
Communications Assistance for Law Enforcement Act of 1994
In October 1994, Congress passed the Communications Assistance for Law Enforcement Act of 1994 (CALEA) (Pub. L. No. 103-414). CALEA defines the statutory responsibilities of the telecommunications industry to assist law enforcement in executing court authorized wire taps and requires them to design or modify their systems to ensure that these taps can be performed.
In July 1992, the NDAA Board of Directors adopted a policy supporting this effort and specifically called upon Congress to require “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.”
Since then, NDAA has been steadfast in supporting the continued efforts of the Department of Justice, the FBI and DEA in accomplishing this goal. On March 10, 2004, DOJ, the FBI and DEA filed a joint petition before the Federal Communications Commission (FCC) for expedited rulemaking to resolve various outstanding issues associated with the implementation of CALEA. The petition makes a number of requests of the FCC but does not seek to expand the scope of law enforcement’s authority to conduct electronic surveillance. The petition requests that the FCC establish rules that formally identify services and entities covered by CALEA, so both law enforcement and industry are notified about CALEA obligations and compliance. The petition was filed because disagreements exist between industry and law enforcement over whether certain services are subject to CALEA.
NDAA has filed a letter with the FCC supporting the joint petition. This is the second time that the association has filed with the FCC on CALEA implementation. The previous time was in 1998, when similar clarifying issues were brought to the FCC in a law enforcement “punch list.” On that occasion, law enforcement prevailed on a majority of its requests.
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