[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
U.S. GOVERNMENT PRINTING OFFICE
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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
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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\
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\1\ http://jnet.ao.dcn/Reports/Criminal_Justice_Reports/
Good_Practices_for_Federal_Panel_Attorney_Program.html.
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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.
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\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.
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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.
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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.