By Rhea Arledge

Senator Lindsey Graham

NDAA 2006 Capital Conference and Reception

Senator Bill Frist

Senator Saxby Chambliss with NDAA President Paul Logli

On January 31, amidst the final Senate vote to confirm the nomination of Judge Samuel Alito, Jr. as the newest justice of the United States Supreme Court; the beginning of the second session of the 109th Congress; meetings surrounding the House majority leadership races; and the broadcasting of President Bush’s State of the Union Address to the nation, NDAA held its 2006 Capital Conference at the Washington Grand Hyatt Hotel.

This annual conference held in Washington has evolved over the years into a working legislative meeting for prosecutors across the nation. The goal has been to provide prosecutors with a forum to discuss issues experienced on a routine basis at a local level and federal legislation that could potentially affect local prosecutors and law enforcement. The association was privileged to have Congressman Mark Souder (R-IN) as the keynote speaker.

Katherine Duckworth, legislative assistant to Senator James Talent (R-MO), and Steven Cash, then chief counsel and staff director for Senator Dianne Feinstein (D-CA), spoke with conference attendees about pending federal legislation that would restrict the sale and purchase of ephedrine and pseudoephedrine-containing products. David LaBahn, executive director, California District Attorneys Association, and Michelle Grossman, legislative director for Representative Elton Gallegly (R-CA), presented information on California’s Proposition 69, the DNA database expansion initiative. Kenneth Goldsmith, legislative counsel, ABA, and Marianne Upton, general counsel for Senator Richard Durbin, updated participants on the status of pending legislation that proposes to provide student loan forgiveness for prosecutors and public defenders.

The attendees were also briefed at the Eisenhower Executive Office Building by United States Attorney General Alberto Gonzales; Regina Schofield, assistant attorney general, Office of Justice Programs, Department of Justice; and Scott Burns, deputy director, State and Local Affairs, Office of National Drug Control Policy, Executive Office of the President.

Just a few hours before President Bush gave his State of the Union Address to the nation, NDAA held its annual capital reception in the newly renovated Caucus Room in the Russell Senate Office Build-ing. The Caucus Room has been the location for many historic hearings including the Sinking of the Titanic, Vietnam War, Watergate Break-In, and the Iran Contra Affair.

Reception

The National District Attorneys Association, conference participants and reception guests were honored to have the following members of Congress join them during the reception:

Majority Leader Bill Frist (R-TN)

Senator Lamar Alexander (R-TN)

Senator Saxby Chambliss (R-GA)

Senator Lindsey Graham (R-SC)

Senator Tom Harkin (D-IA)

Senator John Kerry (D-MA)

Senator Robert Menendez (D-NJ)

Senator Jeff Sessions (R-AL)

Representative Roscoe Bartlett (R-MD)

Representative Jeb Bradley (R-NH)

Representative Anna Eshoo (D-CA)

Representative Charles Taylor (R-NC)

NDAA Vice President Jim Reams and Representative Jeb Bradley

Senator John Kerry

During the reception, President Logli presented Senator Lindsey Graham with the 2006 NDAA President’s Award for his support of funding for the NDAA educational training program at the National Advocacy Center (Columbia, South Carolina).

Representative Charles Taylor

NDAA President Paul Logli met with Senator Richard Durbin (D-IL) in his office to present the senator with the 2006 NDAA President’s Award for his commitment to student loan forgiveness for prosecutors and public defenders. Also present during the presentation were NDAA State Director (IL), Kevin Lyons; State’s Attorney Brian Shinkle, Edwards County, IL; and Anita Alvarez, chief deputy state’s attorney, Cook County, IL.

President Logli also presented Senator DeWine (R-OH) with the 2006 President’s Award for his support of funding for NDAA’s educational training program at the National Advocacy Center. In attendance for the presentation were NDAA President-elect Mat Heck (OH), Prosecuting Attorney William Schenck, Greene County (OH) and NDAA State Director (IL) Kevin Lyons.

FY2007 Presidential Budget Request

On February 6, 2006, President Bush released his Fiscal Year 2007 Budget to members of Congress. On February 7 and 10, briefings were held by the Department of Justice, Office of Intergovernmental and Public Liaison and the Department of Justice, Office of Justice Programs respectively. Details of the budget, as they affect state and local prosecutors and law enforcement, were provided and discussed.

Given the continued military involvement in Afghanistan and Iraq and rebuilding in the Gulf Coast states following the devastation of last year’s hurricane season, funding in all other areas, including local law enforcement, is going to be tight.

The president has requested that the funding for a number of programs heavily relied upon by local prosecutors and law enforcement be “zeroed out.” These programs include: Byrne Discretionary Grants; Byrne Justice Assistance Grants; COPS Law Enforcement Technology Grants; Juvenile Accountability Block Grants; National Drug Intelligence Center; and State Criminal Alien Assistance Program.

The FY2007 budget request proposes increases in funding for a number of the Office of Justice Programs (increases over the funding levels enacted for FY2006). These programs include: Prisoner Reentry Initiative; Southwest Border Prosecution; Capital Litigation Improvement Program; Project Safe Neighborhood; DNA Crime Lab Initiative; Juvenile Justice and Delinquency Prevention Act (JJDPA), Formula and Block Grants; Drug Courts; and Justice for All Act.

The following programs are designated for reductions in funding: Gang Prevention; Crime Identification Technology; Paul Coverdell Forensic Science Grant Program; Juvenile Mentoring; Title V Delinquency Prevention; and Child Abuse Investigation and Prosecution Program. In addition, the budget request proposes the rescission of $1.255 billion dollars from the Victims of Crime Act (VOCA) Fund.

Since the State of the Union Address, NDAA has been corresponding and meeting with various members of Congress and their staffs to discuss the dramatic impact that these proposed reductions would have on local law enforcement and prosecutors.

Second Session of 109th Congress

The Second Session of the 109th Congress began on January 31.While there are numerous bills relating to the criminal justice system, the following are only a few of those that may be of interest to local prosecutors.

Combat Methamphetamine Epidemic Act of 2005
On March 9, President Bush signed into law the Combat Methamphetamine Epidemic Act of 2005. Briefly, the law requires that over-the-counter products containing ephedrine, pseudoephedrine or phenylpropanolamine be stored behind the counter or in a locked display case. Retailers may only sell 3.6 grams to the same purchaser within a 24-hour period, and purchasers are restricted to nine grams within a 30-day period. In addition, this legislation places restrictions on certain product packaging and mandates a procedure for the purchase of products containing ephedrine, pseudoephedrine or phenylpropanolamine. For a more detailed analysis of this legislation please go ...here. (NDAA Web site at www.ndaa-apri.org, click on “Issues,” and then “Drug Law.”)

The language of the law will not preempt those state laws that provide for greater restrictions on the sale and purchase of these products. However, for those states that have more lenient restrictions on the sale, retailers and pharmacies will be required to come into compliance with the federal law. It bears noting that the proposed legislation does not provide an exemption from the mandates for gel cap or liquid formulas—an exception that exists in the legislation of many states.

Brief History
The language contained in the Combat Methamphetamine Epidemic Act of 2005 was not introduced as a stand-alone bill during the first session of the 109th Congress as were S.103, the Combat Meth Act, and H.R. 3889, the Eliminate Meth Epidemic Act of 2005. The bill was instead included in the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005 during the conference report negotiations towards the latter part of the first session.

While the full House passed the conference report in December, there were insufficient votes in the Senate to invoke cloture and end the filibuster. Since December, two agreements were reached to extend the expiring sunset provisions of the USA PATRIOT Act while negotiations continued.

On February 17, the Senate by a unanimous consent agreement, placed the compromise reached on several provisions of the USA PATRIOT Act on the calendar for reconsideration by the Senate. The following changes to the USA PATRIOT Act were reached in the compromise agreement:

• Persons who receive FISA orders may challenge the non-disclosure requirements;
• Persons who receive national security letters are not required to disclose their attorneys’ names; and
• Libraries will not be considered wire or electronic communication service providers unless specific services are provided.

On March 2, 2006, the USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, with the inclusion of the Combat Methamphetamine Epidemic Act of 2005, was passed by Congress. On March 9, 2006, President Bush signed the bill into law. NDAA Vice President Jim Reams, county attorney, Rockingham, New Hampshire, and NDAA/APRI Chief of Staff Roger Floren represented NDAA at the signing ceremony in the East Room of the White House.

Pending Legislation

H.R. 4472, the Children’s Safety and Violent Crime Reduction Act of 2006
H.R. 4472, the Children’s Safety and Violent Crime Reduction Act of 2006, passed the full House on March 8, 2006. This bill is noteworthy because it is a compilation of bills introduced during the first session of the 109th Congress, several of which NDAA has discussed over the last eight months. Interestingly, this legislation contains portions of the following bills:

• H.R.3132, the Children’s Safety Act
• H.R. 2363, the Justice for Peace Officers Act
• H.R. 1751, the Secure Access to Justice and Court Protection Act of 2005
• H.R. 1602, the DNA Grants for Prosecution Backlog
• H.R. 3035, the Streamlined Procedures Act of 2005

The following highlights of the bill are not comprehensive; they are intended only to highlight those issues of interest to NDAA.

Title I: Establish a Comprehensive National System for the Registration of Sex Offenders and Child Predators

• Would include individuals who are convicted or adjudicated as juvenile delinquents for a sex offense in the registration requirements
• Would require each jurisdiction to maintain a jurisdiction-wide sex offender registry
• Would set forth the registry requirements with which sex offenders must comply before release from prison or after sentencing if no prison/jail ordered
• Would establish a National Sex Offender Registry at the FBI
• Would establish a National Sex Offender Public Web site in the office of the attorney general
• Would mandate that specific information be contained in the state registries
• Would mandate that states provide a criminal penalty that includes a maximum term of imprisonment greater than one year and minimum term of imprisonment not less than 90 days for a sex offender’s failure to comply with registration
• Would establish a Community Notification Program that requires that the appropriate official in each jurisdiction provide specified information regarding a sex offender, in part, to the U. S. attorney general, law enforcement agencies and the community at large
• Would provide that if the U. S. attorney general determines that a jurisdiction does not have a minimally sufficient sex offender registration program, then the attorney general shall carry out the duties imposed on the jurisdiction
• Would mandate that states that fail to substantially implement the above requirements will receive a 10 percent reduction in Byrne-JAG funding
• Would establish a Sex Offender Management Assistance Program, which provides for bonus payments to jurisdictions that promptly comply with the law
• Would establish a demonstration project for the use of electronic devices in sex offender management programs and provides for bonus payments to states that implement the program
• Would provide assistance for the prosecution of cases cleared through use of DNA backlog clearance funds
• Would provide for grants to local law enforcement agencies to combat sexual abuse of children
• Would provide for the expansion of training and technology through OJJDP for local law enforcement and prosecutors to combat the sexual exploitation of children through the use of the Internet
• Would provide for the establishment of an Office on Sexual Violence and Crimes Against Children within the Department of Justice

NDAA President Logli met with U.S. Attorney General Alberto Gonzales during the Capital Conference.

Section 302, Title III—Prevention and Deterrence of Crimes Against Children

• Would provide that federal courts do not have jurisdiction to consider habeas corpus petitions in capital cases with respect to an error in the applicant’s sentence or sentencing found to be harmless or not prejudicial in state court proceedings; errors not raised in state court proceedings; or alleged errors found by the state court to be procedurally barred
• Would provide in cases of mixed habeas petitions that federal courts do not have jurisdiction to consider habeas corpus petitions with respect to an error in the applicant’s sentence or sentencing found to be harmless or not prejudicial in state court proceedings; errors not raised in state court proceedings; or alleged errors found by the state court to be procedurally barred

Title VI – Child Pornography Prevention

• Would provide safeguards for the prevention of the redistribution of child pornography when it is used as evidence in prosecutions
• Would authorize civil and criminal asset forfeiture in child exploitation and obscenity cases

Title VII – Court Security

• Section 706 would provide that the flight to avoid prosecution for killing a peace officer is a federal crime punishable by “any term of years not less than ten”
• Section 710 would provide that killing or attempted killing of a federally funded public safety officer (includes local officers employed by law enforcement agencies receiving federal funding) is a federal crime punishable by a term of years not less than 30 or life or the death penalty if death results.

Title IX—Increased Federal Resources to Prevent At-Risk Youth from Joining Illegal Street Gangs

• Section 901 would provide grants to state and local prosecutors to combat violent crime and to protect witnesses and victims of crime by hiring additional prosecutors and funding technology, equipment and training to increase the accurate identification of gang members and violent offenders.
• Section 903 would provide for the authorization of grants by the attorney general to award grants to state and local courts, state agencies and municipalities to establish reentry courts

Hate Crimes Legislation

S.1145, the Local Law Enforcement Enhancement Act of 2005, specifies that state and local authorities can carry out their responsibilities more effectively with greater federal assistance and sets forth specific provisions for assistance to state and local governments. State and local assistance provisions that are proposed in the bill include:

• Federal support for expenses associated with criminal investigations and prosecutions by state, local and Indian law enforcement officials when requested by a law enforcement official of a state or Indian tribe;
• Grants to state and local jurisdictions in order to cover the cost of the investigation and prosecution of hate crimes (authorized appropriations: $10 million for FY2006 and 2007);
• Authorization for the hiring of additional federal personnel for the Department of the Treasury and the Department of Justice to prevent and respond to violations of 18 USC §249; and
• Authorization for the Office of Justice Programs to make grants to state and local programs designed to combat hate crimes committed by juveniles, including programs to train local law enforcement officers in investigating, prosecuting and preventing hate crimes.

In addition, S.1145 adds Section 249, Chapter 13, Title 18 United States Code to prohibit acts of violence based on actual or perceived race, color, religion or national origin, gender, sexual orientation or disability and requires a certification by the attorney general, deputy attorney general, associate attorney general or any assistant attorney general designated by the attorney general that:

• Reasonable cause exists to believe that 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
• A determination has been made 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 and sentence obtained under state law left “demonstratively unvindicated” the federal interest in eradicating bias-motivated violence

Amicus Curiae Filed in Hammon v. Indiana and Davis v. Washington

The National District Attorneys Association has submitted a brief of amicus curiae to the United States Supreme Court in the cases of Hammon v. Indiana and Davis v. Washington. The Hammon and Davis cases are Crawford v. Washington-related. The evidence introduced by the prosecution during trial in the Hammon case involves statements made by a victim both to police at the scene and during the investigation of a domestic assault and statements provided in an affidavit. The statements made in the Davis case involve those made in response to a 911 dispatcher’s questions following a 911 hang-up call.

These cases could have profound implications for local prosecutors that try child abuse and domestic violence cases on a daily basis were it determined that such statements are in fact “testimonial.” As a result, NDAA President Paul Logli felt that it was extremely important for NDAA to be a signatory on a brief which addresses the efforts to expand definition of “testimonial” and reduce the types of admissible evidence.

The briefs of the petitioners and respondents can be accessed through the United States Supreme Court homepage at http://www.supremecourtus.gov/opinions/opinions.html. Oral arguments in these cases were heard on March 20.

Miscellaneous Activities

On March 2, 2006, NDAA Past-President, Dan Alsobrooks was invited to speak and answer questions during the Senate Democratic Caucus Luncheon concerning the Meth Free Tennessee anti-drug program developed by the Tennessee district attorneys general. (See photo, page 15.) The program includes an aggressive public relations effort and an educational program designed to reach every middle and high school age student in Tennessee. 

District Attorney General Alsobrooks presented the Emmy Award winning “Meth is Death” educational video, two 30-second Public Service Announcements being used on the local TV Stations and the interactive Web site, www.methfreeTN.org. The Web site has had over one and a half million visitors since it opened in November 2005. Minority Leader Harry Reid and 12 Senators were present in the LBJ Room in the U. S. Capitol Building along with other Senate staff members. Following the luncheon, Mr. Alsobrooks participated in a National Radio show in the Minority Leader’s Office along with Senator Byron Dorgan (D-ND) and Senator Spencer Baucus (D-MT).

On March 2, 2006, Jim Reams, Rockingham County attorney, New Hampshire, and NDAA vice president along with NDAA Executive Director Tom Charron and Mary Leary, former director, American Prosecutors Research Institute’s National Center for Prosecution of Child Abuse, conducted an extremely effective and well received briefing for the majority and minority staff of the House Committee on Energy and Commerce. The briefing covered the multi-faceted crime of sexual exploitation of children through use of the Internet.