[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
 ENHANCED FINANCIAL RECOVERY AND EQUITABLE RETIREMENT TREATMENT ACT OF 
                                  2007

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   ON

                               H.R. 2878

                               __________

                            NOVEMBER 1, 2007

                               __________

                           Serial No. 110-124

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

MAXINE WATERS, California            J. RANDY FORBES, Virginia
WILLIAM D. DELAHUNT, Massachusetts   LOUIE GOHMERT, Texas
JERROLD NADLER, New York             F. JAMES SENSENBRENNER, Jr., 
HANK JOHNSON, Georgia                Wisconsin
ANTHONY D. WEINER, New York          HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
ARTUR DAVIS, Alabama                 DANIEL E. LUNGREN, California
TAMMY BALDWIN, Wisconsin
BETTY SUTTON, Ohio

                      Bobby Vassar, Chief Counsel

                    Michael Volkov, Minority Counsel


                            C O N T E N T S

                              ----------                              

                            NOVEMBER 1, 2007

                                                                   Page

                            TEXT OF THE BILL

H.R. 2878, the ``Enhanced Financial Recovery and Equitable 
  Retirement Treatment Act of 2007''.............................     2

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Artur Davis, a Representative in Congress from the 
  State of Alabama, and Member, Subcommittee on Crime, Terrorism, 
  and Homeland Security..........................................     7
The Honorable J. Randy Forbes, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     9

                               WITNESSES

Larry D. Thompson, Esquire, Senior Vice President, Government 
  Affairs, Pepsico, Inc., Purchase, NY
  Oral Testimony.................................................    11
  Prepared Statement.............................................    12
Steven H. Cook, Esquire, Vice Prseident, National Association of 
  Assistant United States Attorneys, Lake Ridge, VA
  Oral Testimony.................................................    14
  Prepared Statement.............................................    17
Mr. Kenneth E. Melson, Director of the Executive Office for U.S. 
  Attorneys for the Eastern District of Virginia, U.S. Department 
  of Justice
  Oral Testimony.................................................    27
  Prepared Statement.............................................    29
Ms. Amy Baron-Evans, Sentencing Resource Council, Federal Public 
  and Community Defenders, Federal Defender Office, Boston, MA
  Oral Testimony.................................................    40
  Prepared Statement.............................................    41

                                APPENDIX

Material Submitted for the Hearing Record........................    57


 ENHANCED FINANCIAL RECOVERY AND EQUITABLE RETIREMENT TREATMENT ACT OF 
                                  2007

                              ----------                              


                       THURSDAY, NOVEMBER 1, 2007

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:04 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Waters, Nadler, Johnson, 
Jackson Lee, Davis, Baldwin, Sutton, Forbes, Coble, and 
Lungren.
    Staff present: Bobby Vassar, Subcommittee Chief Counsel; 
Ameer Gopalani, Majority Counsel; Mario Dispenza, (Fellow) 
BATFE Detailee; Veronica Eligan, Majority Professional Staff 
Member; Caroline Lynch, Minority Counsel; and Kelsey Whitlock, 
Minority Staff Assistant.
    Mr. Scott. The Subcommittee will now come to order. I am 
pleased to welcome you to today's hearing on H.R. 2878, the 
``Enhanced Financial Recovery and Equitable Treatment Act of 
2007.''
    H.R. 2878 was introduced on June 27 this year by the 
gentleman from Alabama, Mr. Davis. The legislation currently 
enjoys bipartisan support of 36 cosponsors, including 10 
Members of this Committee. The purpose of the measure is to 
improve the current set of retirement benefits afforded to 
Assistant U.S. Attorneys. According to a recent Department of 
Justice internal memo, the enhancement of the AUSA retirement 
benefit program is one meaningful way to improve the retention 
rate. Title II of the bill seeks to implement the change by 
elevating the current set of benefits to equal those currently 
offered to other law enforcement officials, including FBI, U.S. 
Marshals, and Bureau of Prison employees.
    Under PAYGO, any bill that increases outlays has to be paid 
for, and we do have concerns about how this bill is paid for, 
and we will explore that concern during the hearings.
    I would yield the balance of my time to the gentleman from 
Alabama, Mr. Davis.
    [The text of the bill, H.R. 2878, follows:]

HR 2878 IH  ___________________________________________________
                               

 deg.

                                                                      I
110th CONGRESS
    1st Session

                                H. R. 2878

To amend titles 18 and 28 of the United States Code to provide 
    incentives for the prompt payments of debts owed to the United 
    States and the victims of crime by imposing surcharges on unpaid 
    judgments owed to the United States and to the victims of crime, to 
    provide for offsets on amounts collected by the Department of 
    Justice for Federal agencies, and to increase the amount of special 
    assessments imposed upon convicted persons; to establish an 
    Enhanced Financial Recovery Fund to enhance, supplement and improve 
    the debt collection activities of the Department of Justice; to 
    amend title 5, United States Code, to provide to assistant United 
    States attorneys the same retirement benefits as are afforded to 
    Federal law enforcements officers, and for other purposes.
                               __________
                    IN THE HOUSE OF REPRESENTATIVES
                             June 27, 2007
Mr. Davis of Alabama (for himself, Mr. Delahunt, Mr. Tom Davis of 
    Virginia, Mr. Cannon, Mr. McCaul of Texas, Mr. Schiff, Ms. Ros-
    Lehtinen, Mr. Shays, Mr. Udall of New Mexico, Mr. Moran of 
    Virginia, Ms. Norton, and Mr. Cummings) introduced the following 
    bill; which was referred to the Committee on the Judiciary, and in 
    addition to the Committee on Oversight and Government Reform, for a 
    period to be subsequently determined by the Speaker, in each case 
    for consideration of such provisions as fall within the 
    jurisdiction of the committee concerned
                               __________

                                 A BILL

To amend titles 18 and 28 of the United States Code to provide 
    incentives for the prompt payments of debts owed to the United 
    States and the victims of crime by imposing surcharges on unpaid 
    judgments owed to the United States and to the victims of crime, to 
    provide for offsets on amounts collected by the Department of 
    Justice for Federal agencies, and to increase the amount of special 
    assessments imposed upon convicted persons; to establish an 
    Enhanced Financial Recovery Fund to enhance, supplement and improve 
    the debt collection activities of the Department of Justice; to 
    amend title 5, United States Code, to provide to assistant United 
    States attorneys the same retirement benefits as are afforded to 
    Federal law enforcements officers, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Enhanced Financial Recovery and 
Equitable Retirement Treatment Act of 2007''.

                  TITLE I--ENHANCED FINANCIAL RECOVERY

SEC. 101. IMPOSITION OF CRIMINAL SURCHARGE.

    (a) In General.--Section 3612 of title 18, United States Code, is 
amended by striking subsection (g) and inserting the following:
    ``(g) Imposition of Surcharge.--
            ``(1) In general.--A surcharge shall be imposed upon a 
        defendant if there are any unpaid criminal monetary penalties 
        as of the date specified in subsection (f)(1).
            ``(2) Amount of surcharge.--The surcharge imposed under 
        paragraph (1) shall be--
                    ``(A) 5 percent of the unpaid principal balance; or
                    ``(B) $50, if the unpaid balance is less than 
                $1,000.
            ``(3) Allocation of payments.--
                    ``(A) Fine or special assessment.--If a surcharge 
                is imposed under paragraph (1) for a fine or special 
                assessment--
                            ``(i) an amount equal to 95 percent of each 
                        principal payment made by a defendant shall be 
                        credited to the Crime Victims Fund established 
                        under section 1402 of the Victims of Crime Act 
                        of 1984 (42 U.S.C. 10601); and
                            ``(ii) an amount equal to 5 percent of each 
                        principal payment shall be credited to the 
                        Department of Justice Enhanced Financial 
                        Recovery Fund established under section 104 of 
                        the Enhanced Financial Recovery and Equitable 
                        Retirement Treatment Act of 2007.
                    ``(B) Restitution.--If a surcharge is imposed under 
                paragraph (1) for a restitution obligation--
                            ``(i) an amount equal to 95 percent of each 
                        principal payment shall be paid to any victim 
                        identified by the court; and
                            ``(ii) an amount equal to 5 percent of each 
                        principal payment shall be credited to the 
                        Department of Justice Enhanced Financial 
                        Recovery Fund established under section 104 of 
                        the Enhanced Financial Recovery and Equitable 
                        Retirement Treatment Act of 2007.
                    ``(C) Surcharges.--For any payment made by a 
                defendant after the full amount of a surcharge imposed 
                under paragraph (1) has been satisfied, the full amount 
                of such payment shall be credited to the principal 
                amount due or accrued interest, as the case may be.
            ``(4) Definitions.--In this section--
                    ``(A) the term `criminal monetary penalties' 
                includes the principal amount of any amount imposed as 
                a fine, restitution obligation, or special assessment, 
                regardless of whether any payment schedule has been 
                imposed; and
                    ``(B) the term `principal payment' does not include 
                any amount that is imposed as interest, penalty, or a 
                surcharge.''.
    (b) Conforming Amendments.--Section 3612 of title 18, United States 
Code, is amended--
            (1) by striking subsections (d) and (e); and
            (2) by redesignating subsections (f) through (i), as 
        amended by this Act, as subsections (d) through (g), 
        respectively.

SEC. 102. IMPOSITION OF CIVIL SURCHARGE.

    (a) In General.--Section 3011 of title 28, United States Code, is 
amended to read as follows:

``Sec. 3011. Imposition of surcharge

    ``(a) In General.--A surcharge shall be imposed on a defendant if 
there is an unpaid balance due to the United States on any money 
judgment in a civil matter recovered in a district court as of--
            ``(1) the fifteenth day after the date of the judgment; or
            ``(2) if the day described in paragraph (1) is a Saturday, 
        Sunday, or legal public holiday, the next day that is not a 
        Saturday, Sunday, or legal holiday.
    ``(b) Amount of Surcharge.--A surcharge imposed under subsection 
(a) shall be--
            ``(1) 5 percent of the unpaid principal balance; or
            ``(2) $50, if the unpaid balance is less than $1,000.
    ``(c) Allocation of Payments.--If a surcharge is imposed under 
subsection (a)--
            ``(1) an amount equal to 95 percent of each principal 
        payment made by a defendant shall be credited as otherwise 
        provided by law; and
            ``(2) an amount equal to 5 percent of each principal 
        payment shall be credited to the Department of Justice Enhanced 
        Financial Recovery Fund established under section 104 of the 
        Enhanced Financial Recovery and Equitable Retirement Treatment 
        Act of 2007.
    ``(d) Surcharges.--For any payment made by a defendant after the 
full amount of a surcharge imposed under subsection(a) has been 
satisfied, the full amount of such payment shall be credited to the 
principal amount due or accrued interest, as the case may be.
    ``(e) Definitions.--In this section--
            ``(1) the term `principal payment' does not include any 
        amount that is imposed as interest, penalty, or a surcharge; 
        and
            ``(2) the term `unpaid balance due to the United States' 
        includes any unpaid balance due to a person that was 
        represented by the Department of Justice in the civil matter in 
        which the money judgment was entered.''.
    (b) Technical and Conforming Amendment.--The table of sections at 
the beginning of subchapter A of chapter 176 of title 28, United States 
Code, is amended by striking the item relating to section 3011 and 
inserting the following:

    ``3011. Imposition of surcharge.''.

SEC. 103. INCREASE IN THE AMOUNT OF SPECIAL ASSESSMENTS.

    Section 3013 of title 18, United States Code, is amended by 
striking subsection (a) and inserting the following:
    ``(a) The court shall assess on any person convicted of an offense 
against the United States--
            ``(1) in the case of an infraction or a misdemeanor--
                    ``(A) if the defendant is an individual--
                            ``(i) the amount of $10 in the case of an 
                        infraction or a class C misdemeanor;
                            ``(ii) the amount of $25 in the case of a 
                        class B misdemeanor; and
                            ``(iii) the amount of $100 in the case of a 
                        class A misdemeanor; and
                    ``(B) if the defendant is a person other than an 
                individual--
                            ``(i) the amount of $100 in the case of an 
                        infraction or a class C misdemeanor;
                            ``(ii) the amount of $200 in the case of a 
                        class B misdemeanor; and
                            ``(iii) the amount of $500 in the case of a 
                        class A misdemeanor; and
            ``(2) in the case of a felony--
                    ``(A) the amount of $200 if the defendant is an 
                individual; and
                    ``(B) the amount of $1,000 if the defendant is a 
                person other than an individual.''.

SEC. 104. ENHANCED FINANCIAL RECOVERY FUND.

    (a) Establishment.--There is established in the Treasury a separate 
account known as the Department of Justice Enhanced Financial Recovery 
Fund (in this section referred to as the ``Fund'').
    (b) Deposits.--Notwithstanding section 3302 of title 31, United 
States Code, or any other law regarding the crediting of collections, 
there shall be credited as an offsetting collection to the Fund an 
amount equal to--
            (1) 2 percent of any amount collected pursuant to civil 
        debt collection litigation activities of the Department of 
        Justice (in addition to any amount credited under section 11013 
        of the 21st Century Department of Justice Appropriations 
        Authorization Act (28 U.S.C. 527 note));
            (2) 5 percent of all amounts collected as restitution due 
        to the United States pursuant to the criminal debt collection 
        litigation activities of the Department of Justice;
            (3) any surcharge collected under section 3612(g) of title 
        18, United States Code, as amended by this Act, or section 3011 
        of title 28, United States Code, as amended by this Act; and
            (4) 50 percent of any special assessment collected under 
        section 3013(a) of title 18, United States Code, as amended by 
        this Act.
    (c) Availability.--The amounts credited to the Fund shall remain 
available until expended.
    (d) Payments From the Fund.--
            (1) Amount.--
                    (A) In general.--Except as provided in subparagraph 
                (B), the Attorney General shall use not less than 
                $20,000,000 of the Fund in each fiscal year, to the 
                extent that funds are available, for the civil and 
                criminal debt collection activities of the Department 
                of Justice, including restitution judgments where the 
                beneficiaries are the victims of crime.
                    (B) Exceptions.--
                            (i) Adjustment of amount.--In each fiscal 
                        year following the first fiscal year in which 
                        deposits into the Fund are greater than 
                        $20,000,000, the amount to be used under 
                        paragraph (1) shall be increased by a 
                        percentage equal to the change in the Consumer 
                        Price Index for the calendar year preceding 
                        that fiscal year.
                            (ii) Limitation.--In any fiscal year, 
                        amounts in the Fund shall be available to the 
                        extent that the amount appropriated in that 
                        fiscal year for the purposes described in 
                        subparagraph (A) is not less than an amount 
                        equal to the amount appropriated for such 
                        activities in fiscal year 2006, adjusted 
                        annually in the same proportion as increases 
                        reflected in the amount of aggregate level of 
                        appropriations for the Executive Office of 
                        United States Attorneys and United States 
                        Attorneys.
            (2) Use of funds.--
                    (A) In general.--Funds used under paragraph (1) 
                shall be used to enhance, supplement, and improve civil 
                and criminal debt collection litigation activities of 
                the Department of Justice, primarily such activities by 
                United States attorneys' offices. A portion of such 
                sums may be used by the Department of Justice to 
                provide legal, investigative, accounting, and training 
                support to the United States attorneys' offices.
                    (B) Limitation on use.--Funds used under paragraph 
                (1) may not be used to determine whether a defendant is 
                guilty of an offense or liability to the United States 
                (except incidentally for the provision of assistance 
                necessary or desirable in a case to ensure the 
                preservation of assets or the imposition of a judgment 
                which assists in the enforcement of a judgment or in a 
                proceeding directly related to the failure of a 
                defendant to satisfy the monetary portion of a 
                judgment).
    (e) Other Use of Funds.--After using funds under subsection (d), 
the Attorney General may use amounts remaining in the Fund for 
additional civil or criminal debt collection activities, for personnel 
expenses, for personnel benefit expenses incurred as a result of this 
Act or the amendments made by this Act, or for other prosecution and 
litigation expenses. The availability of amounts from the Fund shall 
have no effect on the implementation of title II or the amendments made 
by title II.
    (f) Definition.--In this section, the term ``United States''--
            (1) includes--
                    (A) the executive departments, the judicial and 
                legislative branches, the military departments, and 
                independent establishments of the United States; and
                    (B) corporations primarily acting as 
                instrumentalities or agencies of the United States; and
            (2) except as provided in paragraph (1), does not include 
        any contractor of the United States.

SEC. 105. EFFECTIVE DATES.

    (a) In General.--The amendments made by section 101 and section 103 
shall apply to any offense committed on or after the date of enactment 
of this Act, including any offense involving conduct that continued on 
or after the date of enactment of this Act.
    (b) Fund and Surcharges.--
            (1) In general.--Section 104 and the amendments made by 
        section 102 shall take effect 30 days after the date of 
        enactment of this Act.
            (2) Pending cases.--The amendments made by section 102 
        shall apply to any case pending on or after the date of 
        enactment of this Act.

  TITLE II--EQUITABLE RETIREMENT TREATMENT OF ASSISTANT UNITED STATES 
                               ATTORNEYS

SEC. 201. RETIREMENT TREATMENT OF ASSISTANT UNITED STATES ATTORNEYS.

    (a) Civil Service Retirement System.--
            (1) Assistant united states attorney defined.--Section 8331 
        of title 5, United States Code, is amended--
                    (A) in paragraph (28), by striking ``and'' at the 
                end;
                    (B) in paragraph (29) relating to dynamic 
                assumptions, by striking the period and inserting a 
                semicolon;
                    (C) by redesignating paragraph (29) relating to air 
                traffic controllers as paragraph (30);
                    (D) in paragraph (30), as so redesignated, by 
                striking the period and inserting ``; and''; and
                    (E) by adding at the end the following:
            ``(31) `assistant United States attorney' means an 
        assistant United States attorney appointed under section 542 of 
        title 28.''.
            (2) Retirement treatment.--Chapter 83 of title 5, United 
        States Code, is amended by adding after section 8351 the 
        following:

``Sec. 8352. Assistant United States attorneys

    ``Except as provided under the Enhanced Financial Recovery and 
Equitable Retirement Treatment Act of 2007 (including the provisions 
relating to the non-applicability of mandatory separation requirements 
under section 8335(b) and 8425(b) of this title), an assistant United 
States attorney shall be treated in the same manner and to the same 
extent as a law enforcement officer for purposes of this chapter.''.
            (3) Technical and conforming amendments.--
                    (A) Table of sections.--The table of sections for 
                chapter 83 of title 5, United States Code, is amended 
                by inserting after the item relating to section 8351 
                the following:

    ``8352. Assistant United States attorneys.''.
                    (B) Mandatory separation.--Section 8335(a) of title 
                5, United States Code, is amended by striking 
                ``8331(29)(A)'' and inserting ``8331(30)(A)''.
    (b) Federal Employees' Retirement System.--
            (1) Assistant united states attorney defined.--Section 8401 
        of title 5, United States Code, is amended--
                    (A) in paragraph (34), by striking ``and'' at the 
                end;
                    (B) in paragraph (35), by striking the period and 
                inserting ``; and''; and
                    (C) by adding at the end the following:
            ``(36) `assistant United States attorney' means an 
        assistant United States attorney appointed under section 542 of 
        title 28.''.
            (2) Retirement treatment.--Section 8402 of title 5, United 
        States Code, is amended by adding at the end the following:
    ``(h) Except as provided under the Enhanced Financial Recovery and 
Equitable Treatment Act of 2006 (including the provisions relating to 
the non-applicability of mandatory separation requirements under 
section 8335(b) and 8425(b) of this title), an assistant United States 
attorney shall be treated in the same manner and to the same extent as 
a law enforcement officer for purposes of this chapter.''.
    (c) Mandatory Separation.--Sections 8335(b)(1) and 8425(b)(1) of 
title 5, United States Code, are each amended by adding at the end the 
following: ``This subsection shall not apply in the case of an 
assistant United States attorney.''.

SEC. 202. PROVISIONS RELATING TO INCUMBENTS.

    (a) Definitions.--In this section--
            (1) the term ``assistant United States attorney'' means an 
        assistant United States attorney appointed under section 542 of 
        title 28, United States Code; and
            (2) the term ``incumbent'' means an individual who is 
        serving as an assistant United States attorney on the 120th day 
        after the date of enactment of this Act.
    (b) Notice Requirement.--Not later than 9 months after the date of 
enactment of this Act, the Department of Justice shall take measures 
reasonably designed to provide notice to incumbents on--
            (1) their election rights under this title; and
            (2) the effects of making or not making a timely election 
        under this title.
    (c) Election Available to Incumbents.--
            (1) In general.--An incumbent may elect, for all purposes, 
        to be treated--
                    (A) in accordance with the amendments made by this 
                title; or
                    (B) as if this title had never been enacted.
            (2) Failure to elect.--Failure to make a timely election 
        under this subsection shall be treated in the same way as an 
        election under paragraph (1)(A), made on the last day allowable 
        under paragraph (3).
            (3) Time limitation.--An election under this subsection 
        shall not be effective unless the election is made not later 
        than the earlier of--
                    (A) 120 days after the date on which the notice 
                under subsection (b) is provided; or
                    (B) the date on which the incumbent involved 
                separates from service.
    (d) Limited Retroactive Effect.--
            (1) Effect on retirement.--In the case of an incumbent who 
        elects (or is deemed to have elected) the option under 
        subsection (c)(1)(A), all service performed by that individual 
        as an assistant United States attorney shall--
                    (A) to the extent performed on or after the 
                effective date of that election, be treated in 
                accordance with applicable provisions of subchapter III 
                of chapter 83 or chapter 84 of title 5, United States 
                Code, as amended by this title; and
                    (B) to the extent performed before the effective 
                date of that election, be treated in accordance with 
                applicable provisions of subchapter III of chapter 83 
                or chapter 84 of title 5, United States Code, as if the 
                amendments made by this title had then been in effect.
        Any service performed by the incumbent pursuant to an 
        appointment under section 515, 541, 543, or 546 of title 28, 
        United States Code, shall, for purposes of subparagraph (B), be 
        treated in the same manner as if performed as an assistant 
        United States attorney; this sentence shall not be taken into 
        account for purposes of determining whether or not an 
        individual is an incumbent.
            (2) No other retroactive effect.--Nothing in this title 
        (including the amendments made by this title) shall affect any 
        of the terms or conditions of an individual's employment (apart 
        from those governed by subchapter III of chapter 83 or chapter 
        84 of title 5, United States Code) with respect to any period 
        of service preceding the date on which such individual's 
        election under subsection (c) is made (or is deemed to have 
        been made).
    (e) Individual Contributions for Prior Service.--
            (1) In general.--An individual who makes an election under 
        subsection (c)(1)(A) shall, with respect to prior service 
        performed by such individual, deposit, with interest, to the 
        Civil Service Retirement and Disability Fund the difference 
        between the individual contributions that were actually made 
        for such service and the individual contributions that would 
        have been made for such service if the amendments made by this 
        title had then been in effect.
            (2) Effect of not contributing.--If the deposit required 
        under paragraph (1) is not paid, all prior service of the 
        incumbent shall remain fully creditable as law enforcement 
        officer service, but the resulting annuity shall be reduced in 
        a manner similar to that described in section 8334(d)(2)(B) of 
        title 5, United States Code.
            (3) Prior service defined.--In this subsection, the term 
        ``prior service'' means, with respect to any individual who 
        makes an election (or is deemed to have made an election) under 
        subsection (c)(1)(A), all service performed as an assistant 
        United States attorney, but not exceeding 20 years, performed 
        by such individual before the date as of which applicable 
        retirement deductions begin to be made in accordance with such 
        election.
    (f) Regulations.--The Office of Personnel Management shall 
prescribe regulations necessary to carry out this title, including 
provisions under which any interest due on the amount described under 
subsection (e) shall be determined.

SEC. 203. EFFECTIVE DATE.

    The amendments made by section 201 shall take effect on the first 
day of the first applicable pay period beginning on or after the 120th 
day after the date of enactment of this Act.
                                 



    Mr. Davis. Thank you, Mr. Chairman, for convening this 
hearing.
    And let me thank all the witnesses who are here. I have had 
a chance to work with the Executive Office of U.S. Attorneys 
and the U.S. Attorneys Association in formulating this bill, 
and we thank them for their good work. I am particularly glad 
to see the former Deputy Attorney General of the United States, 
former United States attorney in Atlanta, Larry Thompson, who 
is here, and I thank him for his insight today.
    Mr. Chairman, this bill has two simple thrusts. The first 
one deals with an issue that may seem narrow to some people, 
but it is important, related to financial recovery in cases 
where the government seeks to recoup money. In many instances 
when we have these cases, there is a financial victim. In some 
cases the government is the financial victim. We have struggled 
to collect debts. We have struggled to collect revenues over 
the last several years. Estimates vary widely from 14 percent 
to 33 percent, but I think we all agree that we can do better.
    This bill gets at that problem by imposing a late fee on 
unpaid criminal penalties. In effect, if a defendant is late in 
making a principle payment, there is a surcharge of 5 percent 
that would be added if the judgment is not paid within 15 days 
of judgment as it should be. What we would do is to gather the 
money from these late assessment fees and to use them for 
primarily two purposes, part of it to enhance the victims' 
recovery fund and part of it to enhance what DOJ calls its 
enhanced financial recovery fund.
    The enhanced financial recovery fund, in plain English, is 
the pocket of money that goes to U.S. attorneys offices to help 
them collect debt, to help them go out and collect these 
resources that may be owed to the government. It is interesting 
to me. You know, Washington, DC. is not good at putting numbers 
in perspective and numbers that they think are small are 
massive to our constituents. In the last several years, DOJ has 
collected between $3 billion and $5.8 billion every year in 
collections from defendants, corporate and individual, more 
than most of us would have thought.
    As I said, some numbers indicate that even with those 
amounts of money--$3 billion to $5.8 billion--the collection 
rate is 14 percent. An increase of one-quarter of 1 percent 
would recoup an additional $10 million. So we can bring in good 
amounts of money for a relatively small amount of additional 
collection activity. That is the first part of this bill.
    The second part of it is something that I think we all can 
appreciate. As of today, assistant United States attorneys, 
career assistant United States attorneys who choose to retire 
from that job are in a worse-off position financially than 
every other class of Federal law enforcement officer. I don't 
think there is a justification for that.
    If you are a career assistant United States attorney, you 
make the decision to serve the public over a period of time, 
and the average lifespan, career-span of these individuals is 8 
to 9 years. That includes the big giant offices where people 
come and go, and allow the small offices like the one that I 
served in in the Middle District of Alabama, where it is not 
uncommon at all for AUSAs to serve the whole span of their 
career. I always think of my old friend Broward Siegrist in 
Montgomery, Alabama, who was an assistant U.S. attorney for 35 
years. He would not have done anything else.
    Some people say, well, there are other ways to get at this 
problem. Some people say why not just raise the pay for 
assistant U.S. attorneys. We should do that, but as a practical 
matter, people don't do this work because of the pay. You can 
never pay assistants in Atlanta what Alston Bird is going to 
pay them. You can't pay assistants in Birmingham what Maynard 
Cooper would pay them.
    What you can do, however, is to take the ones who have 
decided to stay in the system and give them an equitable 
retirement that matches that of other law enforcement officers. 
That is all that provision of this bill does, to move career 
prosecutors into line with FBI agents, DEA agents and other 
Federal law enforcement officers.
    I will say finally, Chairman Scott, this Committee, every 
now and then, we have occasional disagreements. The good thing 
about this bill is it has strong bipartisan support. It has a 
chance at movement, and I welcome the opportunity to have a 
good uncontentious discussion in the Judiciary Committee today.
    I yield back.
    Mr. Scott. Thank you. The gentleman's time has expired.
    I yield now to my colleague, the Ranking Member of the 
Subcommittee, Mr. Forbes.
    Mr. Forbes. Thank you, Chairman Scott, for holding this 
hearing.
    I want to thank all the witnesses as well. We know how busy 
your schedules are and thank you for taking the time to share 
with us your expertise and knowledge on this.
    Mr. Chairman, I commend you for holding this hearing today 
on H.R. 2878, the ``Enhanced Financial Recovery and Equitable 
Retirement Treatment Act of 2007.'' It is an understatement to 
recognize the incredible contribution that Federal prosecutors 
play in our criminal justice system. There are over 5,000 
assistant United States attorneys who prosecute criminal cases 
in 93 judicial districts.
    The AUSAs handle some of the most important prosecutions in 
our communities. They work in the trenches to dismantle 
terrorist cells, violent gangs, sophisticated fraud rings and 
drug trafficking organizations. Some of the most significant 
Federal prosecutions of members of al-Qaeda, organized crime 
syndicates, the Oklahoma City bombing, the Unibomber and 
countless other cases were conducted by career prosecutors.
    But these cases do not represent the day-in and day-out 
responsibility of Federal prosecutors who handle cases 
important to protecting our communities from terrorists, drug 
traffickers, violent criminals and sexual predators. To put it 
simply, the AUSAs are the backbone of our criminal justice 
system and they are dedicated public servants who make real and 
significant sacrifices every day.
    In the last few years, we have seen unprecedented levels of 
threats and actual violence against prosecutors. In recognition 
of these threats, the House passed this year H.R. 660, the 
``Court Security Improvement Act of 2007,'' and included a 
specific provision requiring the Justice Department to submit 
to Congress a lengthy report on security measures needed to 
protect AUSAs and their families. Federal prosecutors deserve 
the same protections that judges receive.
    H.R. 2878, the ``Enhanced Financial Recovery and Equitable 
Retirement Treatment Act of 2007,'' recognizes the important 
contribution that career prosecutors make. It would provide 
career AUSAs with retirement benefits equal to those of Federal 
law enforcement agents. The act would provide an incentive for 
some career prosecutors to remain in the public sector.
    H.R. 2878 also proposes a new and innovative financing 
mechanism to pay for the cost of the new retirement system. I 
want to commend representatives from the National Association 
of Assistant United States Attorneys for their proposal. It is 
innovative and merits serious consideration by the Judiciary 
Committee. I look forward to hearing from today's witnesses 
about this new proposal, and look forward to working with 
Chairman Scott on this important issue.
    Mr. Chairman, I yield back the balance of my time.
    Mr. Scott. Thank you.
    We have been joined by the gentleman from California, Mr. 
Lungren, and the gentleman from North Carolina, Mr. Coble. 
Without objection, all Members may include opening statements 
in the record at this point.
    We have a distinguished panel of witnesses here to help us 
consider the important issues before us today. Our first 
witness will be the former Deputy Attorney General of the 
United States, Department of Justice, Mr. Larry Thompson. He 
currently works in the private sector as senior vice president 
of government affairs, general counsel and secretary of 
PepsiCo. In this capacity, he is responsible for the company's 
worldwide legal functions, as well as its government affairs 
organization and the corporation's charitable foundation.
    Prior to joining PepsiCo, former Deputy Attorney General 
Thompson had a distinguished career in public service. In 
addition to serving in the number two position at the 
Department of Justice, he also led the National Security 
Coordination Council and chaired the department's Corporate 
Fraud Task Force. He holds a BA in sociology from Culver-
Stockton College, and MA in sociology from Michigan State, and 
a JD from the University of Michigan.
    Our next witness will be Steve Cook, who is currently the 
vice president of the National Association of Assistant U.S. 
Attorneys. Since 1986, he has also served as assistant U.S. 
attorney in the Eastern District of Tennessee. In the Eastern 
District, he has the proud distinction of serving as the 
section chief of the narcotics and violent crime section, the 
anti-gang coordinator, and the coordinator of the office's 
Project Safe Neighborhoods program. Prior to becoming an AUSA, 
he served as law clerk in the Sixth Circuit Court of Appeals.
    Third we have Mr. Kenneth Melson, who currently serves as 
the director of the Executive Office of the United States 
Attorneys at the Department of Justice. He has also served as a 
Federal prosecutor for more than 24 years, initially joining 
the U.S. attorney's office in the Eastern District of Virginia 
in 1983. Prior to joining the department, he worked as an 
assistant commonwealth's attorney in Arlington, Virginia where 
he rose to the position of chief assistant commonwealth 
attorney. He holds a BA degree from Dennison University and a 
JD from the National Law Center at George Washington 
University.
    Our final witness will be Ms. Amy Baron-Evans. Ms. Evans 
currently serves as National Sentencing Resource Counsel at the 
Federal Public and Community Defenders Office. In this 
capacity, she represents defenders' interests in matters of 
policy and provides litigation support in cases before the 
United States Supreme Court. She is the former co-chair of both 
the Federal Sentencing Guidelines Committee of the National 
Association of Criminal Defense Lawyers and the Practitioners 
Advisory Group to the U.S. Sentencing Commission. She received 
her JD from Harvard Law School.
    Each of our witnesses' written statements will be made a 
part of the record, each statement in its entirety. I would ask 
that each witness summarize his or her testimony in 5 minutes 
or less. To help stay within that time, I think all of you are 
familiar with the timing device at the table. When you have 1 
minute left, the light will go from green to yellow, and then 
finally to red when 5 minutes are up.
    Mr. Thompson?

TESTIMONY OF LARRY D. THOMPSON, ESQUIRE, SENIOR VICE PRESIDENT, 
        GOVERNMENT AFFAIRS, PEPSICO, INC., PURCHASE, NY

    Mr. Thompson. Good morning, Chairman Scott, Ranking Member 
Forbes and Members of the Crime Subcommittee. I appreciate the 
opportunity this morning to appear before the Subcommittee in 
support of this important legislation.
    Before I begin, I would like to sort of reintroduce to the 
Members of the Subcommittee my colleague and coworker Daniel 
Bryant, who spent many years in a professional capacity working 
for the Subcommittee. Dan?
    I hope that doesn't affect my testimony. [Laughter.]
    I would like to begin by just noting that I completely 
agree with the remarks of Congressman Davis that he presented 
to the Subcommittee. You have my prepared statement. I am not 
going to read it. I would like to amplify my prepared statement 
to the Subcommittee with some additional observations based on 
my 33 years of practicing law in both the private sector and in 
government service.
    Our justice system is the envy of the world for a number of 
reasons, not the least of which is that it is an adversary 
system. No one is presumed guilty in our system of justice. 
People accused of wrongdoing have an absolute right to the very 
best legal representation that they can obtain or afford. That 
is the way it should be. But the legislation under 
consideration makes certain that the people of this great 
country are not shortchanged in this equation.
    I cannot emphasize enough to the Members of this 
Subcommittee how complex and sensitive many of the cases are in 
the Federal courts throughout the system, in small districts 
and in large districts. Federal investigations and litigation 
is very, very complex and sensitive. AUSA's day-in and day-out 
face experienced and talented lawyers with tremendous resources 
available to them. Again, this is the way it should be, but 
quite frankly it is a continuing struggle for the Department of 
Justice to meet this challenge.
    During my two stints in the Department of Justice, I have 
witnessed AUSAs undertake literally heroic acts of dedication 
and professionalism in the face of better resourced and more 
experienced adversaries, and prevail on behalf of justice.
    Chairman Scott, permit me to give you two examples really 
from each end of the chronological spectrum of my career. In 
the early 1980's, four Federal prosecutors took on a literal 
army of talented and experienced defense lawyers in Operation 
Southern Comfort in the Northern District of Georgia, which at 
the time involved the largest drug smuggling case ever brought 
by the Federal Government. The case, which had a nexus to 
organized crime in the U.S. and terrorism in Colombia, went to 
trial with 13 or 14 defendants. The trial, which I participated 
in, lasted 2\1/2\ months.
    Extensive evidence of racketeering and even murder was 
introduced at trial. All but one of the defendants, an 
admittedly minor player, were found guilty, and several of the 
defendants remain in prison today. This was a terrific effort 
on behalf of dedicated career prosecutors. Three of these 
professionals left government shortly after this trial. Today, 
all are now in the private sector.
    More recently, let me bring your attention to 2002, in 
which our financial markets were rocked with a spate of 
corporate scandals. The most notable of these scandals was the 
collapse of the Enron Corporation. The fraud involved in the 
Enron case was massive and complex. Again, in the face of 
experienced and well-resourced adversaries, the key 
participants in the Enron fraud case have been brought to 
justice.
    This single case in my judgment has helped to restore 
Americans' confidence both in their financial markets and in 
their justice system. It demonstrates that no one, even 
powerful executives, is above the law. Now, several of the 
Enron prosecutors have left government service for the private 
sector.
    Today following 9/11, we need experienced and balanced 
AUSAs in the Department of Justice ranks. These prosecutors and 
civil AUSAs day-in and day-out help to lead investigations and 
give sensitive counsel to investigators to help prevent 
terrorist activity in our homeland and help secure the public 
safety.
    These AUSAs work alongside dedicated Federal law 
enforcement officials in the trenches, but their retirement 
benefits are not the same. I could say that this is not fair, 
but I will use a legal term. It is not equitable. For these 
reasons, I support this legislation.
    One of the reasons--if I could just have 1 second, Mr. 
Chairman--one of the reasons that we have this disparity is 
that in the past, AUSAs were, when the retirement system was 
initially set up, AUSAs were in some instances political 
appointees. That is not the case today. When I was a U.S. 
attorney, for example, I hired a young lawyer. I didn't ask him 
about his politics. I was in the Reagan administration. He went 
on to serve with distinction as a United States attorney in the 
Clinton Administration, Kent Alexander, and for all these 
reasons I wholeheartedly support this important legislation.
    Thank you.
    Sorry--5 minutes is very difficult for a lawyer.
    [The prepared statement of Mr. Thompson follows:]

                Prepared Statement of Larry D. Thompson

    Chairman Scott, Ranking Member Forbes and Members of the Crime 
Subcommittee.
    I appreciate the opportunity to appear before the Crime 
Subcommittee today to address the need to ensure that Assistant United 
States Attorneys have the necessary tools and resources to do their 
jobs and in so doing receive equitable retirement benefits that 
recognize their critical role in federal law enforcement.
    I would like to share with the Members of the Subcommittee three 
simple observations based on my experience over the years both in 
government service and in the private sector.
    First, attracting and retaining top talent is essential for 
organizations to excel, whatever their mission.
    Second, the U.S. federal law enforcement system is rightly the envy 
of the world in terms of its effectiveness, professionalism, and 
values. That success is largely a function of the quality of the 
professionals who serve in it--both federal agents and Assistant United 
States Attorneys.
    Third, we cannot relax in our commitment to maintaining and 
building on the federal law enforcement system's legacy of success, 
especially in view of the increasing and necessary convergence of the 
law enforcement and national security missions in recent years.
    The legislation under consideration, the Enhanced Financial 
Recovery and Equitable Retirement Treatment Act, H.R. 2878, would help 
strengthen a key part of our law enforcement community--Assistant 
United States Attorneys--by ensuring their equitable treatment and 
promoting the retention of talent. Of course, Assistant United States 
Attorneys aren't principally motivated by the salary: Most of them 
could quickly and appreciably increase their compensation by heading to 
the private sector. But we should always be pursuing reasonable steps 
that might increase the incentives to serve longer, allowing them to 
gain invaluable experience and thereby strengthening the federal law 
enforcement system. This bill represents such a step.
    H.R. 2878 makes civil and criminal monetary judgments entered in 
favor of the United States, or the victims of crime, more collectible. 
In addition, the bill establishes for Assistant United States Attorneys 
a pension that is equitable to the pension received by the other 
federal law enforcement officers with whom federal prosecutors work. I 
think linking these two laudable objectives in this way represents a 
creative way to improve key aspects of the federal law enforcement 
mission.
    Prior to serving as Deputy Attorney General from 2001 to 2003, I 
served as the United States Attorney for the Northern District of 
Georgia and led the Southeastern Organized Crime Drug Enforcement Task 
Force. These varied experiences allowed me to work directly and closely 
with scores of Assistant United States Attorneys through the years. It 
is an understatement to observe that their work in both the criminal 
and civil arenas is critically important and ever more complex. And 
September 11, 2001 has only accelerated the challenges they face. Their 
mission today demands increasing skill and sophistication in 
investigating and prosecuting a wide range of criminal activities, 
including domestic and international terrorism, organized drug 
trafficking, firearms crimes, and sophisticated white collar offenses. 
On the civil side as well, the role of Assistant United States 
Attorneys is increasingly demanding, whether defending federal 
government agencies or officials, initiating civil actions against 
individuals or corporations which commit fraud, or enforcing civil and 
criminal judgments entered in favor of the United States, or the 
victims of crime.
    If there were ever a time when experience and good judgment were 
demanded within our federal law enforcement ranks, it is today.
    The legislation under consideration would confer upon Assistant 
United States Attorneys a retirement benefit equal to that received by 
federal law enforcement officers with whom Assistant United States 
Attorneys work shoulder-to-shoulder in the investigation and 
enforcement of federal law. The original reason for the disparity 
between law enforcement officer and Assistant United States Attorney 
retirement benefits--due to the status of Assistant United States 
Attorneys as political appointees when the law enforcement officer 
retirement credit was first created more than 50 years ago--has long 
been superseded by the change in hiring of Assistant United States 
Attorneys as nonpolitical, merit-appointed civil servants. In fact, a 
report of the Attorney General's Advisory Committee in 1989 concluded:

        ``Clearly, career AUSAs should be authorized to receive 
        retirement benefits afforded all of the other members of the 
        federal law enforcement community since the majority of AUSA 
        responsibilities relate to the investigation, apprehension or 
        detention of individuals suspected or convicted of criminal 
        laws of the United States.''

    I believe it is crucial that there be the greatest equity possible 
regarding retirement benefits throughout the federal law enforcement 
community. The legislation under consideration today will recognize 
Assistant United States Attorneys for the key role they play in 
enforcing our nation's laws, and provide a well-deserved boost to their 
morale. An improved Assistant United States Attorney retirement benefit 
will assist United States Attorney Offices to more effectively recruit 
and retain skilled prosecutors, thereby developing the talent in its 
ranks more effectively. Such an outcome would undoubtedly strengthen 
their ability to perform their mission.
    I would note that while I strongly support the aim of this 
legislation, there may be additional avenues available to Congress to 
promote the important objectives of equity and talent retention. I am 
aware that there have been constructive conversations ongoing for some 
time about addressing underlying compensation questions for Assistant 
United States Attorneys generally. I think such a review is 
appropriate.
    The specific mechanism provided in this bill for supporting the 
financial basis for an improved Assistant United States Attorney 
retirement benefit advances another important aspect of the Justice 
Department's mission: Promoting the interests of victims of crime.
    American taxpayers have a right to expect that those who commit 
fraud, harm our citizens, or commit other criminal or civil wrongdoing 
will be punished and that the federal government will make every 
reasonable effort to recover any ill-gotten gains and other assets 
necessary to make the victims whole. The Department of Justice has the 
sole responsibility to collect criminal monetary judgments, including 
restitution to victims, and the primary responsibility to collect civil 
judgments. This responsibility falls chiefly upon United States 
Attorney Offices. Yet, as the Government Accountability has pointed 
out, the amount of outstanding criminal and civil debt to be collected 
is large and growing.
    The collection of outstanding criminal and civil debt is inherently 
difficult to accomplish as many debtors are incarcerated and have long 
since dissipated their assets. The most sophisticated debtors, 
generally owing the largest debts, have hidden their assets under 
corporate shells, the names of their close friends or associates, or 
the laws of foreign countries. Competing priorities and limited 
resources further complicate the efforts of Assistant United States 
Attorneys to enforce judgments entered in favor of the United States or 
the victims of crime. Finally, current law gives defendants no real 
incentive to promptly satisfy, to the best of their ability, judgments 
entered in federal court when they are imposed. I do think the Justice 
Department has made real strides in recent years to facilitate improved 
collection efforts and I commend their efforts.
    The legislation under consideration today addresses some of these 
problems by authorizing a significant infusion of resources--at least 
$20 million per year--to strengthen the Department's judgment 
enforcement efforts and to add additional Assistant United States 
Attorneys to the Department's judgment enforcement efforts. The funding 
for these resources is generated by surcharges, or late fees, that will 
be imposed on unpaid judgments, as an effective way to encourage 
defendants to satisfy their judgments promptly. Those late fees, along 
with a small increase in the offsets applied against recoveries made by 
the Justice Department for other federal agencies, will be deposited 
into an Enhanced Financial Recovery Fund. That Fund will pay for 
enhanced judgment enforcement efforts by the United States Attorneys 
Offices. I think this is a sensible public policy, promoting equity, 
incentivizing more prompt payments by debtors, and serving the 
interests of the victims of crime.
    In conclusion, I believe that the aims of the legislation under 
consideration today are deserving of the Subcommittee's consideration 
and support. Restoring equity to the retirement benefits of Assistant 
United States Attorneys is overdue, and is the right thing to do. 
Enhancing the Department's judgment enforcement resources will improve 
the collection of outstanding judgments, including fines and 
restitution, and will advance the administration of justice.
    Thank you very much for the opportunity to share these views with 
the Subcommittee.

    Mr. Scott. I didn't make the rules.
    Mr. Thompson. I know. Thank you. [Laughter.]
    Mr. Scott. Mr. Cook?

TESTIMONY OF STEVEN H. COOK, ESQUIRE, VICE PRSEIDENT, NATIONAL 
 ASSOCIATION OF ASSISTANT UNITED STATES ATTORNEYS, LAKE RIDGE, 
                               VA

    Mr. Cook. Thank you, Mr. Chairman and Members of the 
Subcommittee. On behalf of the 5,600 assistant United States 
attorneys serving across the country, I would like to express 
our deep and sincere appreciation to you for holding this 
hearing on H.R. 2878.
    We are especially appreciative of the leadership of 
Congressman Davis, and we would also like to acknowledge the 
fact that he is a former assistant United States attorney, and 
we are proud to have had him among our ranks.
    Likewise, we would like to express our appreciation to the 
other Members of the Committee who are cosponsors of our bill.
    As has already been indicated, I certainly serve as the 
vice president of the National Association of Assistant United 
States Attorneys, and I am required to emphasize that I am here 
in that capacity, not in my capacity as a Department of Justice 
employee.
    With that background, I would like to turn to H.R. 2878, 
that is the ``Enhanced Financial Recovery and Equitable 
Retirement Treatment Act of 2007.'' This act has two subparts 
which I would like to address in turn. The first part calls for 
certain simple and straightforward improvements in financial 
recovery. I would like to begin by pointing out, as did Mr. 
Melson in his written comments, that the United States 
attorneys offices collect over $4 billion a year on average in 
outstanding judgments or civil settlements, that is between 
fiscal years 2003 and 2006. That is twice the total budget of 
all United States attorneys' offices.
    Despite that, over $50 billion remains uncollected. We also 
agree with Mr. Melson's observation in his statements that a 
substantial majority of this is uncollectible. But we also 
agree, as is reflected in his statement, that billions remain 
uncollected that could be collected.
    This bill would give United States attorneys offices the 
resources necessary to importantly improve the collection and 
enhancement recovery of money for our victims, for funds for 
the crime victims fund, as well as for the Federal agencies 
which ultimately represent monies to our taxpayers.
    In a nutshell, it works by reforming debt collection 
procedures, capturing $20 million which is then used to enhance 
judgment enforcement. In particular, the bill does this with 
surcharges and late fees and offsets--surcharges or a 5 percent 
late fee imposed on judgments which are not paid within 15 
days. Offsets are a 5 percent Federal restitution in addition 
to 2 percent on civil judgments.
    I wish to emphasize that there is no offset on Federal 
victims nor the crime victims fund. These offsets simply 
associate the cost of collection with the agency that incurs 
the debt. Through the use of these two reforms, we estimate an 
increased revenue of approximately $175 million. The first $20 
million of that would be used to provide resources to the 
United States attorneys' offices to enhance recovery efforts, 
essentially doubling the potential efforts that are currently 
focused on that.
    There is, as I have said, $50 billion in outstanding debt. 
Funds after that would be used to offset the cost of equitable 
retirement to which I would like to turn now, the Equitable 
Retirement Treatment Act of 2007. First, I would like to thank 
former Deputy Attorney General Larry Thompson for his support 
of this important legislation. Make no mistake about it, the 
5,600 assistant United States attorneys I referred to earlier 
are loyal, dedicated professionals who are proud to serve this 
country.
    In doing so, however, they make many sacrifices. They make 
many sacrifices by working long hours under high pressure 
conditions. These are heavy litigation positions requiring them 
to spend many, many, many hours away from their families. They 
make sacrifices in terms of the wages. The law firms--I have a 
son who just graduated from law school--many law firms have 
offered and do offer salaries that far exceed what I am paid 
after 20 years of service.
    Sacrifices in terms of the danger from the job--death 
threats are a routine part of our job. The very real nature of 
these threats can be demonstrated by Tom Wales, who was shot to 
death in his home on October 11, 2001. But AUSAs don't come to 
the job expecting the same pay or benefits as private practice, 
and they aren't doing so now. This bill would simply bring 
retirement for AUSAs in line with the retirement provided to 
many others with whom they work in the criminal justice 
system--probation officers, pretrial services officers, U.S. 
marshals' employees, Bureau of Prisons employees, FBI agents, 
DEA agents, IRS agents.
    As it stands now, the retirement provisions included in 
this bill are available to everyone with whom we serve on a 
daily basis in the criminal justice system. This bill would 
fill a long-open gap and provide the same benefits to dedicated 
assistant United States attorneys, and importantly do so with 
no burden on the taxpayer.
    Mr. Chairman, I respectfully submit that extending these 
benefits to assistant United States attorneys is fair, 
equitable, and simply the right thing to do.
    Thank you again for providing us with this hearing and this 
opportunity to be heard on this very important issue.
    [The prepared statement of Mr. Cook follows:]

                  Prepared Statement of Steven H. Cook





















    Mr. Scott. Thank you.
    Mr. Melson?

   TESTIMONY OF KENNETH E. MELSON, DIRECTOR OF THE EXECUTIVE 
OFFICE FOR U.S. ATTORNEYS FOR THE EASTERN DISTRICT OF VIRGINIA, 
                   U.S. DEPARTMENT OF JUSTICE

    Mr. Melson. Thank you, Chairman Scott, Congressman Forbes 
and Members of the Committee. Thank you very much for giving me 
the opportunity to address this bill, and thank you all for 
your favorable comments concerning the great work that 
assistant United States attorneys do every single day of every 
single year.
    The department considers the collection of debts owed to 
the Federal Government and to victims of crime to be a high 
priority. But by its very nature, collecting criminal debt is 
difficult, and significantly improving the process requires 
additional resources and legislative changes. Nevertheless, I 
believe that the steps the department has taken and those that 
we plan to take will go a long way toward the difference in the 
lives of Federal crime victims.
    Let me first say that we work vigorously to collect debts 
on behalf of the government and nonfederal victims. We 
collected more than $19 billion in criminal and civil debts 
from 2002 to 2006. Over the last 3 years, we have collected 
well over $1 billion for victims of crime, with over $1.5 
billion collected for victims of crime in fiscal year 2006 
alone, a significant increase over the prior years.
    While these are impressive results, we all know that there 
is more work to be done. By the end of fiscal year 2006, the 
amount of outstanding debt was reported to have grown to $46 
billion. But it is important to note that some 90 percent of 
that debt is uncollectible for a variety of reasons, according 
to an independent study.
    In the 2001 report, GAO made 13 recommendations to improve 
the efficiency and effectiveness of the criminal debt 
collection process. The Executive Office for United States 
Attorneys and the Department of Justice have addressed all 13 
recommendations, and on January 5 of 2005, the Attorney General 
established the Task Force on Improving the Collection of 
Criminal Debt, as suggested by the GAO report.
    The task force proposed legislation called the Restitution 
for Victims of Crime Act of 2006, which I am happy to say 
Congressman Forbes and Smith incorporated into their House 
bill, H.R. 3156. This proposal amends the Mandatory Victims 
Restitution Act to improve collection procedures by addressing 
obstacles encountered by U.S. attorneys' offices in the 
enforcement of restitution orders.
    Among the three important changes is the provision of tools 
to restrain defendants' assets prior to trial to prevent the 
dissipation of resources otherwise available for restitution. 
The task force's legislative proposal has been included as an 
amendment to the 2008 CJS appropriations bill, which was 
recently passed by the Senate. I hope the conference committee 
will also see the importance of this legislation to the lives 
of crime victims.
    With regard to H.R, 2878, the department is reviewing this 
complicated piece of legislation and the department has not yet 
taken a formal position on it. However, I would like to 
describe some of the areas where the department has questions 
and concerns regarding H.R. 2878 as currently drafted.
    The legislation does not address the fact that the Civil 
Service retirement and disability fund must cover $1.2 billion 
in retroactive agency contributions. Furthermore, the cost of 
ongoing increased agency contributions to the fund would be on 
the order of $75 million to $85 million a year. Although the 
legislation proposes a means for funding these costs through 
surcharges on unpaid debts and additional offsets, if 
collections are not sufficient to cover these costs, they would 
instead be borne by the U.S. attorneys' offices operating 
appropriations, a potentially significant vulnerability for our 
budget.
    In addition, the legislation as now drafted delays, in our 
opinion, and at worst appears to permanently reduce by 5 
percent the amounts that would otherwise be credited to victims 
of crime. We are also concerned about the fairness of providing 
expanded retirement benefits to AUSAs, but not to others in the 
department, many of whom perform substantially the same work as 
AUSAs. In addition, non-attorney staffs that support law 
enforcement would also be unfairly left out of this 
legislation.
    The costs for this additional personnel and law enforcement 
officer retirement plan cannot be fiscally supported by the 
current proposal.
    In closing, I want to stress that I identify the above 
concerns not because of any objection to improving assistant 
U.S. attorney compensation or benefits. I was an AUSA for 24 
years, and I am committed to supporting the work of AUSAs and 
the work that they do. Recognizing the invaluable role of AUSAs 
in their law enforcement mission, the department's leadership 
is committed to and has been actively exploring ways to ensure 
we recruit and retain the best and most talented assistant 
United States attorneys.
    Thank you.
    [The prepared statement of Mr. Melson follows:]

                Prepared Statement of Kenneth E. Melson























    Mr. Scott. Thank you, Mr. Melson.
    Ms. Baron-Evans?

  TESTIMONY OF AMY BARON-EVANS, SENTENCING RESOURCE COUNCIL, 
   FEDERAL PUBLIC AND COMMUNITY DEFENDERS, FEDERAL DEFENDER 
                       OFFICE, BOSTON, MA

    Ms. Baron-Evans. Thank you, Mr. Scott, Members of the 
Committee. Thank you for inviting me to share the views of the 
Federal public and community defenders on this bill, the 
Enhanced Financial Recovery and Equitable Retirement Treatment 
Act.
    The Federal defenders exist because more than 80 percent of 
all Federal defendants are indigent and they require appointed 
counsel. Looking at this bill, it seems quite unrealistic that 
the bill could generate any more money than is currently being 
generated, given that 80 percent of Federal defendants are 
indigent, and that they become more so when they are prosecuted 
and convicted and go to prison.
    That is not our major concern. Our major concern is more 
fundamental. First of all, there are three major concerns. 
First of all, this is a tax on the poor. Second of all, Mr. 
Thompson said that our justice system is the envy of the world. 
One of the reasons it is the envy of the world, if indeed it 
is, is because we have a public prosecutor system, a system in 
which--and before the revolution, this choice was made--a 
system in which the public prosecutor has no financial or other 
personal interest in the cases that he brings. This bill would 
give prosecutors a financial interest, and even if not acted 
upon, has the distinct appearance of impropriety.
    The third problem is that it would create inequity vis-`-
vis Federal defenders. This is not a problem that could be 
fixed by this bill because we could not possibly imagine asking 
for us to be making our living or our retirement benefits on 
the backs of our clients. That would be an obvious and direct 
conflict of interest.
    Getting back to why it is a tax on the poor. We haven't 
really focused on those details. Any defendant who hasn't paid 
every bit of his or her monetary obligations by 15 days after 
judgment gets an automatic 5 percent surcharge. This is even if 
the judge imposed a payment schedule, which the judge has every 
authority to do by statute, even if the judge has imposed a 
specific date for payment and the person is not out of 
compliance with that schedule, even if the person is 
participating in the BOP's financial recovery system where they 
take a little bit of money out of their meager prison earnings 
regularly to pay off financial obligations.
    This is a tax on the poor because the only people who can 
possibly pay it 15 days after judgment are people with funds, 
and we know that 80 percent of Federal defendants don't have 
funds. Also, increasing the special assessment by doubling it 
or factors also of three or four depending on what type of 
misdemeanor or felony it is--by the time a person gets out of 
prison and has paid off his monetary obligations, the very next 
$100 should not be going to a prosecutor's retirement fund. It 
should be going to that person's ability to get back on their 
feet and have a second chance to be a productive member of 
society. We shouldn't be telling people that their next $100 is 
going to support the prosecutor who put you in prison. It 
doesn't look good. It is not right.
    As to the inequity with the Federal defenders, I am the 
only Federal defender here. We have offices in 89 of 94 
judicial districts. The system couldn't function without us. 
There is a statute that Congress passed a long time ago which 
says Federal defenders shall not be paid more than AUSAs. The 
Judicial Conference adopted a policy saying that Federal 
defenders and Federal prosecutors, that there should be parity 
in their salaries and in their benefits for the very same 
reasons that are justifying this bill, which are that we have 
to be able to keep qualified and diversified assistant Federal 
public defenders.
    Ask any judge and they would much prefer a well trained and 
smart Federal defender's office than a lack of one any day. It 
really helps the system move smoothly and it is the only way to 
effective assistance of counsel, which is part of our system, 
just as much as prosecution.
    I might add, and this is no slam on my brothers here, but I 
might add that prosecutors rarely go out into the field, and 
when they go out into the field, they are accompanied by an 
agent with a gun. Federal public defenders, we only have one or 
two investigators in every one of our offices. That means that 
the lawyers are regularly going out and interviewing witnesses 
and going to dangerous places, and nobody has a gun, and even 
if we are accompanied by an investigator, the investigator 
doesn't have a gun.
    Again, I am not suggesting that we should be given higher 
retirement benefits on the backs of our clients, and we would 
definitely oppose any plan like that. And you know, all things 
being equal, I would think it is great for everybody to get 
paid more money. But things cannot be equal under this bill.
    Thank you.
    [The prepared statement of Ms. Baron-Evans follows:]

                 Prepared Statement of Amy Baron-Evans

    Mr. Chairman and Members of the Committee:
    Thank you for inviting me to this hearing to provide the views of 
the Federal Public and Community Defenders on H.R. 2878, the Enhanced 
Financial Recovery and
    Equitable Retirement Treatment Act of 2007. We have offices in 89 
of 94 federal judicial districts. All of our clients are indigent, and 
over 75% are African American, Hispanic or Native American. More than 
80% of federal criminal defendants require appointed counsel. We 
represent 60% of those defendants, with the other 40% represented by 
panel attorneys. \1\
---------------------------------------------------------------------------
    \1\ http://jnet.ao.dcn/Reports/Criminal_Justice_Reports/
Good_Practices_for_Federal_Panel_Attorney_Program.html.
---------------------------------------------------------------------------
    We oppose this bill. As we understand it, the goal is to collect 
more money from convicted criminal defendants, and to use it for debt 
collection activities, some prosecution activities, and ultimately for 
enhanced retirement benefits for Assistant United States Attorneys 
(AUSAs). The bill would also take 5% of principal payments on fines and 
special assessments currently paid to the Crime Victims Fund, and 5% of 
principal payments on restitution obligations currently paid to 
individual victims to be used for the same purposes. The theory seems 
to be that if higher monetary obligations are imposed on criminal 
defendants, this will fund improved debt collection activities, and in 
this way, sufficient money will be generated to fund what appears to be 
at least a doubling of the cost of retirement benefits for AUSAs, of 
which there are currently about 5600. However, it is difficult to see 
how this scheme would result in substantially, if any, more dollars 
collected, with 80% of federal criminal defendants being indigent and 
more so when they go to prison.
    We oppose the bill because it amounts to a tax on the poor to fund 
retirement benefits for the relatively rich. Giving prosecutors a 
financial interest in the cases they bring would create a conflict of 
interest, and at least the appearance of injustice. The bill also has 
ex post facto problems. Further, the reason law enforcement officers 
receive the retirement package they do--hazardous duty--is entirely 
inapplicable to federal prosecutors. The bill would create inequity in 
compensation between AUSAs and Assistant Federal Public Defenders 
(AFPDs), which is unwarranted and would be detrimental to the system. 
To be perfectly clear, we are not seeking higher retirement benefits to 
be paid from funds recouped from our clients, an obvious conflict of 
interest.

               THE PROPOSAL AMOUNTS TO A TAX ON THE POOR.

    Sec. 101 would impose a surcharge of 5% (or $50 on an amount less 
than $1000) on any amount of a fine, restitution or special assessment 
that is unpaid as of the 15th day after judgment. The surcharge would 
be imposed even when, under 18 U.S.C. Sec. 3572(d), the court, in the 
interest of justice, scheduled payment on a date certain or in 
installments, and the person was not out of compliance with the 
schedule. It would also apply if the person was participating in BOP's 
financial responsibility program, whereby a portion of his or her 
meager prison earning is regularly deducted to pay court-imposed 
financial obligations. See 28 CFR Sec. Sec. 545.11, 545.25.
    The only persons to whom this would not apply are those few 
defendants in a position to pay off criminal monetary penalties within 
15 days of judgment. In short, this is a tax on the poor, to fund 
retirement benefits for the relatively rich.
    Sec. 103 would increase the amount of the mandatory special 
assessment by multiples of 2 to 5.\2\ Indigent individuals would be 
required to pay a special assessment of $10-25 for a misdemeanor, and 
$200 for a felony. If the poorest of defendants does manage to save a 
few hundred dollars, the government has a position as a priority 
creditor to take it from them, rather than allow those defendants a 
second chance to get on their feet as productive citizens.
---------------------------------------------------------------------------
    \2\ While the court need not impose a fine after considering the 
defendant's resources, obligations to dependents, or need to make 
restitution, 18 U.S.C. Sec. 3572(a), (b), there is no provision for 
judicial waiver of the special assessment.
---------------------------------------------------------------------------
IT WOULD CREATE A FINANCIAL INCENTIVE THAT IS INAPPROPRIATE FOR PUBLIC 
             PROSECUTORS AND THE APPEARANCE OF IMPROPRIETY.

    By the advent of the American Revolution, the English model, in 
which private parties brought criminal prosecutions, was replaced with 
the system we have today, in which public prosecutors acting solely in 
the public interest and without financial or other personal motives, 
prosecute criminal cases.\3\ One reason for the switch was that persons 
acting as private prosecutors often abused the criminal justice system 
by initiating prosecutions to exert pressure for financial payment.\4\ 
The public prosecution model helps to ensure equal justice, and the 
appearance of equal justice.
---------------------------------------------------------------------------
    \3\ See Abraham S. Goldstein, Prosecution: History of the Public 
Prosecutor, in 3 Encyclopedia of Crime and Justice 1286, 1286-1287 (S. 
Kadish ed. 1983). Juan Cardenas, The Crime Victim in the Prosecutorial 
Process, 9 Harv. J.L. & Pub. Pol'y 357, 371 (1986) (``[B]y the time of 
the American Revolution * * * local district attorneys were given a 
virtual monopoly over the power to prosecute. Crime victims were no 
longer allowed to manage and control the prosecution of their 
crimes.''); Joan E. Jacoby, The American Prosecutor: A Search for 
Identity 19 (1980) (``By the advent of the American Revolution, private 
prosecution had been virtually eliminated in the American colonies and 
had been replaced by [a] series of public officers who were charged 
with handling criminal matters.''); Randolph N. Jonakait, The Origins 
of the Confrontation Clause: An Alternative History, 27 Rutgers L.J. 
77, 99 (1995) (``By the time of the Revolution, public prosecution in 
America was standard, and private prosecution, in effect, was gone.''); 
Jack M. Kress, ``Progress and Prosecution,'' in 423 The Annals of the 
American Academy of Political and Social Science 99, 103 (1976) 
(``[P]ublic prosecution was firmly established as the American system 
by the time the Judiciary Act of 1789 created United States district 
attorneys to prosecute federal crimes.''); Robert L. Misner, 
``Recasting Prosecutorial Discretion,'' 86 J. Crim. L. & Criminology 
717, 729 (1996) (``By the outbreak of the Revolution, private 
prosecution was replaced by public prosecution through county 
officials.* * *'').
    \4\ Goldstein, supra* note 2, 1286-1287.
---------------------------------------------------------------------------
    HR 2878 would create improper incentives, which would, at least, 
appear to be improper and create disrespect for law. Conceivably, it 
could result in a formal or informal quota system. It could distort the 
function of prosecutors from that of seeking justice to something akin 
to personal injury lawyers who receive financial rewards contingent on 
case outcomes and numbers of plaintiffs. Public prosecutors should not 
be exposed to these incentives, and should not be seen as having such 
incentives.
    Funding prosecutorial activities other than debt collection from 
funds collected from convicted defendants would also be improper. Sec. 
104(d)(2)(A) states that funds may be used by DOJ to provide ``legal, 
investigative, accounting, and training support,'' without limitation 
to debt collection activities. While Sec. 104(d)(2)(B) states that the 
funds may not be used ``to determine whether a defendant is guilty of 
an offense,'' this limitation is essentially undone by subsequent text 
stating, ``except incidentally'' if ``necessary or desirable'' to 
preserve assets or enforce a judgment, and then quite broadly in Sec. 
104(e), that the Attorney General may use the funds ``for other 
prosecution and litigation expenses.''

 THE BILL WOULD PERMIT PROSECUTIONS IN VIOLATION OF THE EX POST FACTO 
                                CLAUSE.

    Sec. 105(a) would permit prosecutions in violation of the Ex Post 
Facto Clause. The final clause would apply the amendments made by 
sections 101 and 103 to ``any offense involving conduct that 
continued'' after enactment, even where the offense is not a continuing 
offense such as conspiracy.
    Mail fraud, for example, is committed for ex post facto purposes on 
the date of mailing, although some conduct ``involved'' in the mail 
fraud scheme may take place after that date. Another example is illegal 
entry--the offense is committed on the date of entry, but it may 
``involve'' conduct, i.e., staying, after that date. Yet another is 
bribery, which is committed for ex post facto purposes on the date of 
the bribe, but some conduct ``involved'' may occur after that date, 
e.g., the person bribed does something in return. In fact, the language 
is so broad that the government could claim that it applied to so-
called ``relevant conduct'' as defined in the Sentencing Guidelines.

  RETIREMENT BENEFITS FOR AUSAS EQUAL TO THOSE OF LAW ENFORCEMENT AND 
GREATER THAN THOSE OF AFPDS IS UNJUSTIFIED AND WOULD BE DETRIMENTAL TO 
                              THE SYSTEM.

    As we understand it, federal law enforcement agents receive the 
retirement package they do because they engage in hazardous duty. AUSAs 
do not. They are lawyers--they go to court, write briefs, interview 
witnesses, meet with opposing counsel, etc. They interview witnesses in 
their own offices, which in most districts, are in the federal 
courthouse, so they need not leave the building. Investigations in the 
field are handled by law enforcement agents. To the extent a federal 
prosecutor may occasionally leave his or her office to participate in 
an investigation, he or she is accompanied by a law enforcement agent 
armed with a gun. AFPDs, in contrast, typically do most of their own 
investigations. Our offices have one or two investigators to staff 
their entire caseload. AFPDs go to dangerous places, such as Liberia, 
Afghanistan, and the inner city. If accompanied by an investigator, the 
investigator is unarmed.
    HR 2878 would ensure that AFPDs are under-compensated as compared 
to AUSAs. According to statute, the compensation paid to AFPDs may not 
exceed that paid to AUSAs in the district. See 18 U.S.C. 
Sec. 3006A(g)(2)(A). The March 1993 Report of the Judicial Conference 
of the United States on the Federal Defender Program states at pp. 24-
25:

        With regard to attorneys and other supporting personnel in 
        federal public defenders' offices, the CJA contemplates equal 
        pay with the United States attorneys' offices for persons with 
        comparable qualifications and experience. Parity in salary and 
        benefits generally for federal defender staff will reflect the 
        importance of the work performed in defender offices and, more 
        importantly, will assist in recruiting and retaining qualified 
        and diversified personnel.

HR 2878 would ensure that AUSAs receive a total compensation package, 
including benefits, greater than that of AFPDs. As the Judicial 
Conference notes, this would be bad policy. AFPDs perform a valuable 
service to the public and our criminal justice system. Without them, 
the system could not function. Having high quality lawyers in Federal 
Defender Offices is critical to effective representation of the 
indigent, and the smooth functioning of the system.
    In sum, we urge you to reject this bill.

    Mr. Scott. Thank you.
    I thank all of you for your testimony.
    I will recognize myself now for 5 minutes for questions.
    Mr. Thompson indicated the question of equity and wanted 
all law enforcement-related attorneys to be getting the same 
kind of retirement. But Mr. Melson, doesn't this create 
inequity among U.S. attorneys or other attorneys because either 
all the assistant U.S. attorneys would be covered or just those 
in criminal. Many AUSAs have essentially a civil practice. Is 
that not true?
    Mr. Melson. Yes, that is correct.
    Mr. Scott. And would this bill give even those on the civil 
side who have essentially medical malpractice and those kind of 
cases, would they get the benefit of this retirement?
    Mr. Melson. As I understand the bill, Congressman Scott, it 
will give it to both civil and criminal, but I would add that 
the civil AUSAs often work at some point in their career on the 
criminal side and have also many of the same issues with 
respect to health care fraud civil investigations.
    Mr. Scott. Okay. Well, are there other Department of 
Justice lawyers who do essentially criminal work that would not 
be covered by this bill?
    Mr. Melson. There are others in the department that will 
not be covered by this bill. We fully support what the AUSAs in 
the field do, but there are a substantial number of criminal 
litigating and civil litigating attorneys in the Department of 
Justice that sit side-by-side with U.S. attorneys in the field 
trying cases.
    Mr. Scott. And they would not be covered by the bill?
    Mr. Melson. That is my understanding.
    Mr. Scott. Okay. Can you respond to the comment that public 
defenders are an integral part of the criminal justice system 
and they are not included in the bill?
    Mr. Melson. Your honor, we agree that the public defender 
service does a great amount of work and their service to the 
community and to the justice system is very important. It is 
integral and I agree that we could not have an effective system 
without the public defenders. They are in perhaps a different 
position. We are looking at solely the bill as it pertains to 
AUSAs.
    Mr. Scott. Do we have any indication--a comment was made 
that the money might not actually come in. How much of the 
total funds are we now collecting?
    Mr. Melson. We are collecting about 33 percent of the 
collectible fines and restitution.
    Mr. Scott. Well, if you added on another 5 percent, what 
gives anybody the impression that we would increase the amount 
of money coming in?
    Mr. Melson. As we indicated, to significantly improve the 
collection process, we would need more resources and some 
legislative fixes.
    Mr. Scott. If more money came in under the present system, 
are the victims being fully compensated? I mean, if more money 
came in, would we be choosing between a pension for Department 
of Justice officials or victim compensation? Would we be making 
a choice, or would victims be first in line?
    Mr. Melson. Well, we agree with your concern that any bill 
not affect the crime victims fund or victims receiving 
restitution. That is one of the aspects that we are looking at 
closely to make sure that there are not any unintended 
consequences of this bill to the victims of crime.
    Mr. Scott. If more money came in, presumably the victims 
would be more likely to get compensated. Is there anything in 
the bill that puts the victim in front of the U.S. attorney 
pension fund?
    Mr. Melson. As I understand the bill, most of the money of 
the principal goes to the victims and the victims crime bill. 
It is after that is paid that the additional money is given to 
the retirement fund.
    Mr. Scott. And after that happens, it is unlikely that 
there would be much more money left over. Is that not true?
    Mr. Melson. Well, that is one of the areas that we are 
looking at, and one of our concerns is whether or not there 
will be a sufficient amount of money to pay for both the 
ongoing retirement benefits and the $1.2 billion retroactive 
government contribution to the retirement fund.
    Mr. Scott. Mr. Cook, could you respond to the concerns that 
it is inappropriate to have law enforcement have a personal 
financial interest in the outcome of cases? And whether or not 
there would be an extra burden for people re-entering? We have 
a second-chance bill that we hope to bring up next week to help 
people re-enter. Would this be counterproductive to that 
effort--those two questions, the conflict of interest, 
prosecutors having an interest in the outcome of a case, and 
the extra burden to those trying to re-enter.
    Mr. Cook. Let me begin, if I may, with respect to the 
conflict of interest issue. I hope it goes without saying to 
this Committee that as our panel of assistant U.S. attorneys 
who have worked on this looked at this bill, it was of utmost 
concern that we avoided either any conflict of interest or 
appearance of any conflict of interest. The integrity of both 
the United States Department of Justice and the individual 
assistant U.S. attorneys who work in that system is paramount 
to us.
    Having said that, any appearance of impropriety that has 
been suggested here could easily be resolved by making sure 
that any funds beyond those used to offset a retirement--that 
is to say a surplus--are channeled to a different area, for 
example Treasury, rather than the Department of Justice.
    This bill as it is currently set is not linked. That is to 
say, a second title provides the retirement benefit that I 
think most of us would agree is proper and appropriate and 
fair, and makes the collection reforms to provide funds which 
would offset it, not directly fund it.
    I am sorry. The second question was?
    Mr. Scott. Extra burden on prisoners trying to re-enter.
    Mr. Cook. We are talking about indigent defendants. As we 
talk about indigent defendants, I think you have to start with 
the understanding that when a defendant comes into court, the 
courts are duty-bound and directed by the sentencing guidelines 
not to impose a fine on that individual to begin with. So when 
we are talking about a fine, that issue isn't there.
    The second category of financial or monetary penalty that 
might be imposed is a special assessment. We would agree that 
perhaps it would be appropriate to remove the $200, return back 
to the $100 special assessment fee, and it has virtually no 
impact on the amount of income generated or funds generated in 
this case.
    So that leaves one category. There are no fines that are 
going to be imposed on indigent defendants. Special assessments 
are unchanged, then, with respect to felonies as a special 
assessment. That leaves us only with restitution. With respect 
to restitution, there are mandatory impositions of restitution. 
That restitution as a matter of law is imposed whenever there 
is a defendant who first is found guilty beyond a reasonable 
doubt, and then secondly we can prove to the court that there 
is a specific loss.
    Many categories of loss to victims are already not 
recoverable under this process. There is no pain and suffering, 
for example. There are no attorneys' fees for example. So the 
victims' return is already artificially reduced, and that is to 
say that the amount imposed on the offender is already 
artificially low. This bill would impose a modest--I would even 
say very modest--increase in that amount. Given that modest 
imposition, then you have to take now it is imposed, now what? 
The concern is that it carries with that person and then is a 
burden to them in the future.
    Well, I don't think anybody in this room would think for a 
minute that the Department of Justice is going to prioritize 
collections against indigent defendants. It simply isn't 
rational. The monies that would come into this system, the $20 
million to enhanced recovery, that $20 million is rationally 
going to be focused on going after the large white-collar 
criminals who have engaged in sophisticated schemes to hide 
their assets.
    Mr. Scott. Okay. Well, thank you.
    On the conflict of interest, I don't think anybody is going 
to bring a case because they might think their pension is going 
to be at risk. Their pension is set. I think the idea that you 
are going to fund the criminal justice system through fines is 
probably more of an ideological question that some of us have 
concerns with.
    The gentleman from Virginia, the Ranking Member, Mr. 
Forbes.
    Mr. Forbes. Thank you, Mr. Chairman.
    Once again, I want to echo what the Chairman has said, what 
Mr. Davis has said, how much we appreciate all of you being 
here and what you do and what you have done and what you are 
currently doing.
    The second thing, it has been said, and we don't need to 
say this again, how much everybody on a bipartisan basis 
appreciates what everybody does. That issue we can kind of take 
and put on the shelf. We all agree with that.
    The other thing that, Mr. Cook, you mention is that this is 
the right thing to do, and maybe it is the right thing to do, 
but then we have it colored with a whole lot of other reasons 
why we are doing it. You know, that prosecutors risk their 
lives; that we are losing good prosecutors to the private 
sector, et cetera, et cetera.
    Mr. Thompson mentioned that the system works good because 
it is an adversarial system, and we don't want this to be 
adversarial, but we certainly want to do our job and raise 
tough questions so we can at least investigate what is going 
on.
    The core question that I asked you guys when you came to my 
office, and I ask you again today because I don't know the 
answer to this. Where do we stop as a country? We are 
continuing to have people sit right where you sit, they sit in 
the couches in my office, and I am sure they do in the 
Chairman's office day after day. There is not a group in 
America that doesn't come in and want to retire at 50 years 
old--not a group. It is the firefighters, it is the policemen, 
it is the military--it is every person we see. And on every one 
of those, we say they are good people. They are risking their 
lives. We think the world of them. Mike just told me he wants 
to do it at 50 years old. [Laughter.]
    But on a serious note, I have economists that come in there 
and they just say, ``Folks, you are not going to be competitive 
with the rest of the world because the reality is we have life 
expectancies now that have flipped on us in the last 50 or 60 
years--80 or 81 years of age. Some people will be retiring 
longer than they worked. That is just the reality of the 
situation.
    We have Social Security that we know is being stretched to 
the hilt. We have baby boomers coming on-line next year that is 
going to stretch our system. We have Medicare that is now 4.5 
percent of gross national product. It is going to be 22 percent 
at a certain period of time. When we look at our military, 
these people aren't going out and just traveling to Florida. 
They are getting jobs with corporate America someplace, 
oftentimes making significantly more money than they made 
before, and we are still paying those benefits.
    Where do we draw the line as a society and say, ``We just 
can't have everybody retiring at 50, as much as we love them, 
as great a job as they do. We just can't pay benefits at that 
particular point in time.'' Because I know that is one of the 
things that I am wrestling with on this bill and a lot of other 
ones. I think as a country, we are going down a fiscally scary 
world because we are going to have our whole population out 
retired at 50 and doing something else. So what do you think?
    Mr. Thompson. Congressman Forbes, those are very, very good 
concerns and questions. The Chair's questions were very 
appropriate. Those were the kinds of things that I had to deal 
with when this bill was first brought to my attention when I 
was in public service. But just before I try to get to your 
question, may I just suggest one thing here though, is that we 
still have the fact that the cases and investigations in the 
Federal system are increasingly more complex. They are 
increasingly more difficult.
    The people, the government requires assistant U.S. 
attorneys who are highly skilled, highly capable, and 
experienced. We need to be able to retain our assistant U.S. 
attorneys.
    Mr. Forbes. All right. Let me stop you there, only because 
I have a time limit, and then I am going to let you answer. But 
I want to throw my second question out to you because you have 
segued me into that.
    The second question I will ask you, if the Chairman will 
indulge me maybe just an extra minute or so, we just had an 
excellent modeling and simulation program brought to me 
yesterday by Raytheon Corporation. They normally do the 
national defense stuff. They did one for public education where 
they did a complex modeling and simulation, and answered the 
same question you just asked. The question was, how do we put 
out more math and science students and how do we retain better 
teachers?
    The first solution they thought was going to be there was 
raise the salary, and they bumped the salary up in their model 
from $33,000 to $50,000, thinking that was the answer. When 
they ran the model out, though, it didn't have the impact 
because industry raised their prices and, to make a long story 
short, it offset. What really answered the question, they said 
when they did the model, they went in after the second year and 
got the bad teachers out and then that increased it.
    When I look at people who are prosecutors and they leave, 
they never tell me it is because of the retirement system. Do 
you know what they tell me? It is because ``my kids are going 
to college'' or ``because I have weddings coming up'' or 
``because I have cash-flow problems.'' And if I did a 
retirement system, they are still going to have kids going to 
college and they are going to have the weddings.
    So I am not against what you are doing. I am just trying to 
make sure we are intellectually asking, is this really the way 
we keep the good people there.
    Mr. Thompson. And congressman, I do think we ought to take 
a look at the retirement system, as you suggest, in the Federal 
law enforcement system. But as long as we have the retirement 
system the way it is, and you have men and women in the 
trenches working alongside Federal law enforcement officers 
doing very difficult and dangerous work, you have this 
inequity. I don't think that is appropriate. I don't think it 
is fair. This legislation offers a creative solution to a piece 
of that puzzle. It is only a piece.
    I totally agree with Ms. Baron-Evans that the Federal 
defenders are very important to our justice system. I would 
support Congress undertaking a comprehensive look at Federal 
law enforcement. We need to do that. This legislation, though, 
I think is an important first step in the puzzle as to how do 
we improve our system, because the cases are increasingly 
complex, increasingly difficult, and that is not going to stop.
    Mr. Forbes. Anybody else? Ms. Evans?
    Ms. Baron-Evans. I would just say if we need increasingly 
skilled and experienced prosecutors, they should be staying 
longer. I mean, leaving at 50, that is when I started. I 
actually came from private practice into public service, and, 
well, I mean, most of the supervisors in my office and in other 
offices in Federal defenders' offices are in their 40's, 50's, 
or 60's. It seems that the more experience you have, the 
better, rather than encouraging people to leave at 50.
    Mr. Forbes. My time is up, but I would just ask if any of 
you could submit in writing to us a response. Because I think 
those two questions are kind of at the core of what we are 
wrestling with, not that we don't like anybody, we don't want 
to do this, but how do we answer those two questions.
    Thank you again for what you do and for being here and for 
putting up with our questions.
    Mr. Scott. Thank you, Mr. Forbes.
    In a follow up to that question, I think if there has been 
any analysis of salaries, if people don't feel they are getting 
paid sufficiently, what the salary ought to be for these 
positions. I think that would be an interesting thing to hear.
    The gentleman from Alabama, Mr. Davis?
    Mr. Davis. Thank you, Mr. Chairman.
    Let me thank my friend from Texas for letting me skip ahead 
of her. I have explained to her I have a Ways and Means hearing 
going on, so I thank her for her generosity.
    I don't have the time to engage Mr. Forbes' in his 
philosophical discussion. I would advocate retirement age of 70 
for U.S. senators so they could come back into the private 
sector and spend more time with us, and there would be more 
movement over there. [Laughter.]
    But let me turn, in all seriousness, to several concerns 
that have been raised. I want to start out, Ms. Baron-Evans, 
with your concerns. The Chairman was more modulated than you 
were, but you made some observations I think worthy of 
addressing for a moment about the potential conflict of 
interest in AUSAs bringing collection cases, pursuing 
collection actions and some of the revenues potentially going 
to their retirement funds.
    On a broad philosophic level, I think I understand your 
point. Let me frame it another way. Members of Congress 
routinely vote on things that affect us financially. The markup 
I am about to go to is about the alternative minimum tax. That 
affects Members of Congress who are making $168,000 a year in 
many communities.
    I suppose somebody somewhere might suggest there is a 
problem with a committee of people who are going to pay the tax 
voting on it, but the normal theory that we use in this 
institution is if a policy issue is of generalized concern, and 
you are part of a broadly affected class of people, there is no 
conflict of interest.
    Now, if it is something where for whatever reason just 
affects you, or there is a direct tie-in between your vote and 
your finances that is unique, well, that is a conflict of 
interest concern. And we struggle even with those definitions.
    I would submit in the context of AUSAs obviously if the 
money from a particular collection were going into an escrow 
account for that lawyer, that is enormously problematic, so 
problematic nobody would advocate it. But if there is a 
generalized pot of money where some portion of it is going to 
AUSAs around the country, I think that undercuts to me any 
conflict of interest concerns. I will give you a chance when I 
am done to debate that if you want, but it is my first 
observation.
    The second observation I want to pick up on your 
observation that this is a tax on the poor, as you described 
it. Mr. Cook, good lawyer that he is, said exactly what I was 
going to say, that from my recollections being a prosecutor and 
a defense lawyer, if someone is indigent, you can't fine them 
anyway.
    Now, we know there is a class of people who are not 
declared to be indigent, but who still really don't have any 
disposable resources, or if they do, they spent them all on 
their lawyer. But I want to inject a little bit of reality into 
this. The Government Accountability Office in 2005 found that 
amazingly only 7 percent of white-collar restitution is 
collected. White collar restitution is not poor people. It is 
CFOs who defrauded their company and their investors, such as 
the folks with HealthSouth in Birmingham a few years ago.
    White collar restitution is big massive companies who have 
cheated people out of millions of dollars and who are 
exceptionally well-heeled. Mr. Cook is exactly right that any 
effort to collect this money is going to be pointed at those 
kinds of institutional players, not at John Jones who lives 
with Miss Sally.
    So I want to ask you, Mr. Melson, if you would address the 
question of what the department can do to increase that 7 
percent amount, and let us not quibble about the amount. There 
may be some dispute about that. But what can be done to give us 
a better crack and recouping money from high-class defendants 
with a lot of money such as big corporations?
    Mr. Melson. Thank you, congressman. There are several 
things that we can do. One is more resources and the other is 
legislative fixes. I have mentioned one of the potential 
legislative fixes that is already in the hopper, the bill that 
Congressman Scott and Congressman Forbes have introduced which 
allows us to restrain these assets that these fat cats have 
before they learn that they have to dissipate them in order to 
avoid the restitution.
    The GAO study found that there was between 5 and 13 years 
that would usually elapse between the time defendants started 
their criminal activity and the time that a restitution 
judgment is imposed. During that time, a smart white-collar 
defendant is going to transfer the assets to the spouses or to 
others so that we can't get a hold of it. With this new 
legislation, we will be able to go after them and the 
corporations, restrain their assets while they are being 
investigated, before they are indicted, and before the 
restitution judgment is finally imposed at the very, very end 
of the system.
    Mr. Davis. Mr. Melson, let me stop you at that point. 
Obviously, my time is very limited. I want to make one other 
observation.
    I would encourage you, and I support that bill that you 
just described--I think it is a very good approach--I would 
encourage DOJ to really work with this Committee to try to see 
what we can do to strengthen collection against well-heeled 
white-collar defendants. The 7 percent number we would all 
agree is too low. We have a stake in doing something about it.
    The last point that I want to make is this one. I want to 
address briefly the point that Mr. Forbes made and that the 
Chairman made, the question why. Why do we single out AUSAs? 
This bill does make distinctions between AUSAs and some other 
class of Federal lawyers. Maybe this is the best reason that I 
could end with today. The day-in and day-out decision to charge 
people doesn't get made by attorneys general of the United 
States or even U.S. attorneys, frankly. The day-in and day-out 
decisions get made by lawyers who are sitting in small offices 
who answer to the title of assistant United States attorney.
    And the civil cases Mr. Thompson described, the Federal 
Government doesn't typically handle garden variety civil cases. 
The Federal Government handles massive cases where there is a 
claim of government liability and government culpability. It is 
complex work and enormously important work. It deals with the 
public trust.
    My belief is that if we want to make these jobs as 
apolitical as possible, if we want to make these jobs 
professional and not political--and by the way, Mr. Thompson is 
right. Twenty years ago, you became an AUSA in a lot of places 
if you were kind of connected to the guy who had the job, and 
sometimes good people came out of that, and sometimes they 
didn't.
    If we want to move toward an environment where the politics 
is drained from it and a Larry Thompson and a Democrat U.S. 
attorney can have the same kinds of people, one way that you do 
that is to treat the job as being more of a career profession 
and no, it is not just about what we pay people more and more 
people will do it. You will never pay AUSAs enough for that to 
be the reason they do the work. But what you can do is to 
reward the people who make the decision and who make the choice 
and who decide to stay. If you decide to reward them, you make 
it more likely that apolitical people will do this kind of 
work.
    I yield back.
    Mr. Scott. Thank you, Mr. Davis.
    The gentleman from North Carolina, Mr. Coble.
    Mr. Coble. Thank you, Mr. Chairman.
    Mr. Chairman, would you advise your colleague from Virginia 
that when I get to be 50, I also want to retire? Would you let 
him know that? [Laughter.]
    Mr. Thompson, we are going to hold you harmless in spite of 
your association with Dan Bryant. That may be questionable. 
[Laughter.]
    It is good to have you all with us.
    Mr. Melson, perhaps my frugality is showing, but if this 
bill is enacted, would it not open the door to other groups of 
Federal employees who would also make good causes to increase 
their retirement benefits?
    Mr. Melson. Well, certainly that is a concern that we have, 
that there are other elements in the Department of Justice, 
even in addition to the trial attorneys who would be subject to 
the same type of rationale and reasoning to become part of the 
law enforcement officers' retirement plan.
    Mr. Coble. Mr. Cook, what other employment groups in the 
Federal Government have identical retirement benefits as the 
AUSAs, and they, too, might say, well you know, how about us?
    Mr. Cook. Congressman, if I could begin by pointing out 
maybe the obvious, and that is we are already drawing lines. 
There are in the system that I am working in, the lines have 
unfortunately been drawn at my doorstep. That is to say that 
everybody I work with on a daily basis has this benefit. This 
benefit isn't going to be enough for me to retire, frankly, but 
it is going to be enough for me to go home at night and say I 
am being treated fairly by my employer because I now receive 
the same benefit as everybody I work with on a day-in and day-
out basis.
    As to the second part of your question, and that is who 
else in the system might also ask for these benefits, I would 
respectfully submit to you that there are probably plenty, but 
we can continue to draw the lines that we have. As it is, 
assistant United States attorneys are the ones who serve you on 
the front line of the criminal justice system and we are the 
only ones on that front line that I deal with on a daily basis 
who don't receive these benefits.
    Mr. Coble. I thank you, sir.
    Mr. Cook. Yes, sir.
    Mr. Coble. Ms. Baron-Evans, do Federal public defenders 
receive the same retirement and salary benefits as do AUSAs?
    Ms. Baron-Evans. Yes, Mr. Coble. My understanding from the 
AO is that our salaries and benefit package adds up to the same 
thing, and that is the Judicial Conference policy.
    Mr. Coble. Thank you.
    Mr. Thompson, this is not a directly relevant question 
perhaps, but I know there is some concern across the country 
about the disparity between State district attorneys and 
assistant State district attorneys, as opposed to their Federal 
counterparts, and that won't be addressed here today, but it 
does concern people.
    Let me ask you this: How about retirement disparities 
within the Justice Department? For example, if this bill were 
enacted, would it result in certain members of the department 
receiving more money as AUSAs, as opposed to their 
counterparts, say for example in the Criminal Division?
    Mr. Thompson. Yes, there is a difference in the proposed 
legislation, Congressman. But the fact of the matter is, you 
have to look at the team on the front line, as Mr. Cook pointed 
out. And the men and women on the front line who are working 
beside DEA agents, FBI agents, doing the same kind of thing, 
putting the same hours in, it is important as a first step to 
make this as the title of the legislation implies, more 
equitable.
    Mr. Coble. Well, I thank you all for being with us.
    Mr. Chairman, I have a transportation hearing. I may have 
to go back and forth, but I yield back my time.
    Mr. Scott. Thank you. Thank you very much.
    The gentlelady from Texas, Ms. Jackson Lee?
    Ms. Jackson Lee. Let me thank the Chairman and the Ranking 
Member, and thank the witnesses. It is good to see my good 
friend Mr. Thompson, though I am certainly prepared to hold him 
in contempt for rejecting the pleas and cries of many to 
subject himself to the grueling nomination process for the 
Attorney General of the United States of America. [Laughter.]
    I am still contemplating that, since the process is still 
ongoing you may have still an opportunity. [Laughter.]
    But let me thank my colleagues. Let me pose a question to 
the Chairman. Mr. Chairman, is there a bill that you and the 
Ranking Member have on this same issue? Mr. Chairman? Mr. 
Chairman? I am sorry. Let me try to clear the record. Is there 
a bill that you and Mr. Forbes have on this same issue?
    Mr. Scott. I am not sure which one he was citing. Yes.
    Ms. Jackson Lee. So therefore I don't need to try and probe 
that bill.
    So let me probe this and try to raise questions in the 
context of the idea. I think the idea is a good idea. I 
certainly think that we need to refine it and, Ms. Baron-Evans, 
I am going to probe you because frankly I want the public 
defenders included. I appreciate your moral and principled 
stance, but let me try to work with you to see how it can 
clarify.
    Mr. Thompson, what I may be disturbed about is how it will 
be perceived, which is that you are denying victims their full 
compensation. But I do think there is something if Mr. Davis's 
citation is correct, you might help me with that, having been 
in the Justice Department, as to the poor collection rate of 
the monies that are due the government in the first place. So 
say, for example, we were able to maximize three-fold, 
certainly I would like to see career assistant U.S. attorneys 
find their life's work in building knowledge and working on 
behalf of the people of the United States.
    So my question to you is, the first issue is what would you 
propose, and I think it would need to be language in this 
legislation if it was to move, on the recovery percentage? And 
why are we not collecting?
    I will come to Ms. Baron-Evans because I think we should 
distinguish, and I haven't looked at the fine points, but I 
don't think the bill suggests that we are getting money out of 
a turnip. It is talking about defendants that come with assets 
that are illegally secured. So therefore let me fine out how we 
can do better on the recovery, particularly on the white-collar 
crimes.
    Mr. Thompson?
    Mr. Thompson. I would suggest two fundamental points, 
Congresswoman. That is, number one, nothing should be done to 
take advantage of victims. Victims should always be first in 
line in terms of having restitution as victims of crime. That 
is number one.
    Number two, we certainly shouldn't adversely impact those 
defendants who cannot pay, and when I say ``adversely impact'' 
to the Chair's question, allow them to have some meaningful re-
entry into society. So the point will be----
    Ms. Jackson Lee. Very important point.
    Mr. Thompson. So the point will be how can we go after the 
uncollected fines and debts from corporations, wealthy 
individuals, that are apparently not being collected. One of 
the things I think this legislation will do is these are very 
sophisticated kinds of litigation proceedings, albeit on the 
civil side. And one of the things I think this legislation will 
allow is for retention of assistant United States attorneys, 
because I think the effect of this bill will be to allow AUSAs 
to stay in service longer. You will get more experienced 
individuals to handle these kinds of cases. I think that is the 
long-term solution to the problem that you raise.
    Ms. Jackson Lee. Thank you.
    Let me ask Mr. Melson and then Ms. Baron-Evans. Mr. Melson, 
it seems that the Department of Justice may not have taken a 
position. You might correct me if I came in and that is not the 
case. But what I would appreciate if you would sort of peruse 
the question, if the legislation was written, that public 
defenders who are in essence--I know they are independent under 
the Federal system, and they sort of work in tandem to a 
certain extent, to be included. And if this bill could be done 
in a way that you could not be charged with violating the 
victims fund, would you be interested in such a bill? And Ms. 
Baron-Evans would you respond to the idea of public defenders, 
either through the enhanced compensation?
    And I do understand that you might be concerned with being 
compromised. I don't think that would be the case, but you can 
answer that because these are Federal funds that would be owed 
to you, so they couldn't be taken on the basis of you are 
pressing the case of your clients.
    Mr. Melson?
    Mr. Melson. Yes, you are correct that the department has 
not yet been able to take a position, has not formulated any 
position on the bill. We are concerned with not affecting the 
victims' funds, and because of any amendments to the bill as it 
now stands, as you are suggesting, that might include the 
public defenders, we would have to again look at that and make 
sure there are not any unintended consequences either toward 
the victims or victims' funds. It would be premature for us to 
give you a position on that at this point.
    Ms. Jackson Lee. Well, you will keep that in mind?
    Mr. Melson. Absolutely.
    Ms. Jackson Lee. We may want to look in that direction.
    Ms. Baron-Evans? Try to be as broad-thinking as possible. 
Don't deny yourselves rightful compensation. We will put up a 
firewall for you.
    Ms. Baron-Evans. I would very much not like to deny us 
rightful compensation, but I know that the defenders have been 
asked informally about this before, and there is no way in the 
world, really, that we could accept any funds that came from 
our clients. It is just a conflict.
    You know, a conflict of interest, and now I am talking 
about the prosecutors too, in the conflict or apparent conflict 
that happens when a prosecutor has a financial interest in the 
case. I know Mr. Scott, you said, it is not really a conflict. 
A conflict exists even if you don't act on it, and I am not 
suggesting anybody necessarily or in the vast majority of cases 
would act on it.
    But when you think about it, imagine the report in the 
building the next day after you pass this bill, if you were to 
pass it. Congress just passed a bill that is going to up our 
retirement benefits based on how much we can collect from 
defendants. Come on. That has an effect. And it looks bad. The 
reason I say it looks bad, we want defendants to respect the 
system. We want defendants to respect the judges. We even want 
the defendants to respect the prosecutor, if at all possible. 
And sometimes they do.
    But it is not going to help matters to have people thinking 
that retirement benefits of prosecutors are being funded on 
their backs.
    Ms. Jackson Lee. Thank you. I look forward to working with 
you on this issue. Thank you very much.
    I yield back.
    Mr. Scott. The gentleman from California, Mr. Lungren?
    Mr. Lungren. Thank you very much, Mr. Chairman, for the 
courtesy of being able to ask some questions.
    I am a cosponsor of this bill, but I have some concerns 
after listening to some of the testimony here. The major one 
is, I guess, I should have looked a little more closely at the 
language of the bill, because while I support increased 
retirement benefits for assistant U.S. attorneys, I do not 
support the idea of somehow suggesting that, since prosecutors 
work in the same office with guys who carry guns, men and women 
who carry guns and go out every day, they ought to be treated 
the same way exactly.
    Let us go back in history to understand why we allowed 
retirement for law enforcement personnel at an earlier age. 
Part of it was based on the physical demands of the job. I 
mean, you can say that is not the case, but go back and look at 
it. The whole argument that we have gone through in California 
over law enforcement personnel is because of the physical and 
emotional stress that takes place and also the fact we want 
younger people in who are physically capable of doing the job.
    Now, I know that there are exceptions to that, when you get 
to be detective when you were sitting at your desk and doing 
your thing. I don't want to suggest that is not true, but I 
think the gentleman from Virginia made a very good point. When 
we established an early retirement age for people for a 
particular reason because there was a physical connection to 
that, to then say because you work in the same office you are 
being treated unfairly because you can't retire at the same age 
is just nonsense.
    I am all for improving the retirement benefits of assistant 
U.S. attorneys. But this idea that we move from saying we are 
going to allow people to retire early because they are law 
enforcement, they carry a gun, they have certain stresses in 
their lives, and then we say because we work in the same office 
with them, we are doing the same job, is just not true. I don't 
care how many times you want to say it. It is not true.
    I hope that we could come up with a different formula that 
would improve the retirement benefits of assistant U.S. 
attorneys, but do not give them the ability to retire. I mean, 
you have a contrary argument here before us. You are saying we 
need to do this to keep people on the job, and the reason we 
are going to keep them on the job is we are going to let them 
retire earlier. Now, I am a lawyer and I can use words well, 
but the average person is going to have a lot of difficulty 
figuring that out.
    And then as far as Ms. Baron-Evans is concerned, I 
understand your concern, and if what you are suggesting is we 
could somehow make it easier for you and your brethren to apply 
for carry permits because you are in dangerous situations, I 
would probably support that. Your comment was you go in 
dangerous places, you are not protected nor are you 
investigators, and if you need something like that, I will be 
one to help you do that.
    And the third thing is, we have Mr. Chabot's bill to reform 
the restitution procedures on the Federal level that I believe 
was offered as an amendment to a previous bill. I would hope 
that as we go forward on this bill, we might consider 
incorporating Mr. Chabot's ideas into any final product that we 
put here.
    If I could just ask, am I wrong to say that assistant U.S. 
attorneys don't have quite the physical stress and quite the 
problems that we have with folks that are carrying guns and 
going out in the field as DEA agents and FBI agents and others?
    Mr. Cook. Let me back up even one step further on your 
premise. The premise is that we want to have the same 
retirement benefits as have been accorded only people who carry 
firearms because the class that is covered is much broader than 
that. We have pretrial services officers, probation officers, 
many of whom write pre-sentence reports and never have any----
    Mr. Lungren. I know. We extended it those cases, so 
therefore if we were wrong in extending it in those cases, we 
should extend it even further?
    Mr. Cook. Well, let me say first, I don't think you were 
wrong in extending those benefits. To return to the other point 
you made, and that is with respect to the stresses and dangers 
of the job, the stresses of the job of being an assistant 
United States attorney I would say is equal to, in fact I would 
respectfully submit substantially greater than that posed to 
the typical agent.
    The stresses of working a 12-or 14-hour day, 7 days a week, 
to prepare for a trial like Mr. Thompson described, and that is 
a trial that is going to extend over a many month period of 
time is substantial. And it is important to understand, and I 
think that you are right when you say there is a conflict 
between the position, and if I could describe it this way. In 
many districts we have a retention issue. That is to say, we 
want to keep people beyond the 8 years, 4 years, 5 years that 
they come in. This bill we think would help with that part of 
retention.
    Mr. Lungren. I understand. Let me just say, though, about 
what you said about assistant U.S. attorneys. When I was 
attorney general of California, I had 1,000 lawyers working for 
me. We were the only law firm in California on the prosecution 
side that handled death penalty cases. You talk about strain 
and stress of cases.
    Those cases last for years and years and years. I would put 
those people up against any assistant U.S. attorney that you 
are talking about in terms of stress, but I still wouldn't 
argue that they would be considered the same as law enforcement 
officials. I am just sorry. We have a very big disagreement on 
this.
    Mr. Cook. Well, then I would have to say to you that, as I 
come to the table, I would say that as I grow older I have 
quickly found that my ability to maintain the level of 
performance has paled beside what I was able to do when I was 
30 and 40.
    Mr. Scott. The gentleman's time has expired. Thank you.
    We have a little more work to do, and we have a vote in 
about 6 minutes, so I would like to thank the witnesses for 
their testimony. Members may have additional questions which 
they will forward you, and we ask that you answer them as 
promptly as you can so your answers may be made part of the 
record. Without objection, the hearing record will remain open 
for 1 week for the submission of additional materials. Without 
objection, the Committee stands adjourned.
    [Whereupon, at 11:24 a.m., the Subcommittee was adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security

    Mr. Chairman, I thank you for holding this very important hearing 
regarding this Committee's consideration of H.R. 2878, the ``Enhanced 
Financial Recovery and Equitable Retirement Treatment Act of 2007.'' 
H.R. 2878 will increase the retirement benefits of Assistant U.S. 
Attorneys to the level of federal law enforcement officers, which is 
intended to strengthen the Department of Justice's ability to win 
critical cases by ensuring the retention of skilled, experienced 
federal prosecutors.
    I am pleased to welcome our witnesses who have gathered here today 
to give us guidance and insights in our efforts to evaluate the merits 
of H.R. 2878. We certainly must be mindful that the Department of 
Justice has a void to fill from the loss of very qualified attorneys 
and must implement a system that yields incentives that will lead to 
the retention of skilled, experienced, federal prosecutors.
    Mr. Chairman, the purpose of this hearing is to consider the merits 
of H.R. 2878, the ``Enhanced Financial Recovery and Equitable 
Retirement Treatment Act of 2007.'' H.R. 2878 will increase the 
retirement benefits of Assistant U.S. Attorneys to the level of federal 
law enforcement officers, which aims to strengthen the Department of 
Justice's ability to win critical cases by ensuring the retention of 
skilled, experienced federal prosecutors.
    We know that with the presence of terrorist threats, violent 
crimes, and white-collar crime, there is an ever-growing need for 
skilled federal prosecutors. The growing attrition rate of top-flight 
prosecutors from the Department of Justice is harming the Department's 
ability to prosecute the perpetrators of these crimes and thus 
potentially exposing the American society to even more unsafe 
conditions. The average line Assistant United States Attorney (AUSA) 
remains with DOJ for only 8 years, a critical loss of litigation skill 
and experience by the government and recent DOJ workforce realignment 
efforts have been only modestly successful, with cash incentive 
retirement offers prompting a limited response among eligible AUSAs. A 
report of the Attorney General's Advisory Committee concluded that 
career AUSAs should be authorized to receive similar retirement 
benefits to those of all other members of the federal law enforcement 
community since the majority of AUSA responsibilities relate to the 
investigation, apprehension or detention of individuals suspected or 
convicted of criminal laws of the United States.
    Title II brings the retirement benefits of AUSAs into line with the 
retirement benefits of thousands of federal law enforcement employees, 
including Special Agents of the FBI, Secret Service, IRS and DEA, 
deputy U.S. Marshals, probation and pretrial service officers and 
Bureau of Prison employees. H.R. 2878 provides that AUSAs receive the 
same retirement benefits received by law enforcement officers.
    H.R. 2878 proposes to pay for the cost of increased retirement 
benefits by debt collection reform. The 93 United States Attorney 
Offices are responsible for criminal and civil debt collection efforts 
that result in billions of dollars a year collected for federal 
agencies and the victims of crime. On average, the USAOs collect over 
$4 billion a year, more than twice the total budget of all USAOs.
    However, the Government Accountability Office has criticized the 
Department of Justice for deficiencies in the collection of civil and 
criminal judgments. There are still tens of billions of dollars left in 
uncollected debt, due in part to inefficiencies in the law and 
competing priorities. Title I responds to GAO's criticism by reforming 
federal debt collection procedures, making criminal fines, criminal 
restitution obligations, and civil judgments payable to the United 
States more collectible.
    We need to continue to seek solutions that will put in place 
effective guidelines that create vehicles to recruit and maintain our 
skilled, and experienced federal prosecutors sop that we can combat the 
criminal element that threatens the safety of our society. 
Consideration of H.R. 2878 is before us today as a potential solution 
to that problem. While we seek solutions to the debt collection process 
and attempt to fund the retirement programs of U.S. Attorneys with such 
funds, we must ensure that we do not interfere with the compensation 
resources for crime victims. It is also important for us to consider 
the important contributions of federal public defenders as we provide 
incentives for recruiting and retaining federal attorneys. I look 
forward to hearing from our witnesses today in our attempt to gain some 
guidance on this very important matter.
    Thank you, Mr. Chairman. I yield back the balance of my time.

                                



                                 
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