[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
H.R. 1296, THE DISTRICT OF COLUMBIA DISTRICT ATTORNEY ESTABLISHMENT ACT
OF 2007
=======================================================================
HEARING
before the
SUBCOMMITTEE ON FEDERAL WORKFORCE,
POSTAL SERVICE, AND THE DISTRICT
OF COLUMBIA
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
ON
H.R. 1296
TO AMEND THE DISTRICT OF COLUMBIA HOME RULE ACT TO ESTABLISH THE OFFICE
OF THE DISTRICT ATTORNEY FOR THE DISTRICT OF COLUMBIA, HEADED BY A
LOCALLY ELECTED AND INDEPENDENT DISTRICT ATTORNEY, AND FOR OTHER
PURPOSES
__________
APRIL 24, 2008
__________
Serial No. 110-116
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.oversight.house.gov
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
HENRY A. WAXMAN, California, Chairman
EDOLPHUS TOWNS, New York TOM DAVIS, Virginia
PAUL E. KANJORSKI, Pennsylvania DAN BURTON, Indiana
CAROLYN B. MALONEY, New York CHRISTOPHER SHAYS, Connecticut
ELIJAH E. CUMMINGS, Maryland JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio JOHN L. MICA, Florida
DANNY K. DAVIS, Illinois MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts TODD RUSSELL PLATTS, Pennsylvania
WM. LACY CLAY, Missouri CHRIS CANNON, Utah
DIANE E. WATSON, California JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts MICHAEL R. TURNER, Ohio
BRIAN HIGGINS, New York DARRELL E. ISSA, California
JOHN A. YARMUTH, Kentucky KENNY MARCHANT, Texas
BRUCE L. BRALEY, Iowa LYNN A. WESTMORELAND, Georgia
ELEANOR HOLMES NORTON, District of PATRICK T. McHENRY, North Carolina
Columbia VIRGINIA FOXX, North Carolina
BETTY McCOLLUM, Minnesota BRIAN P. BILBRAY, California
JIM COOPER, Tennessee BILL SALI, Idaho
CHRIS VAN HOLLEN, Maryland JIM JORDAN, Ohio
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont
------ ------
Phil Schiliro, Chief of Staff
Phil Barnett, Staff Director
Earley Green, Chief Clerk
Lawrence Halloran, Minority Staff Director
Subcommittee on Federal Workforce, Postal Service, and the District of
Columbia
DANNY K. DAVIS, Illinois
ELEANOR HOLMES NORTON, District of KENNY MARCHANT, Texas
Columbia JOHN M. McHUGH, New York
JOHN P. SARBANES, Maryland JOHN L. MICA, Florida
ELIJAH E. CUMMINGS, Maryland DARRELL E. ISSA, California
DENNIS J. KUCINICH, Ohio, Chairman JIM JORDAN, Ohio
WM. LACY CLAY, Missouri
STEPHEN F. LYNCH, Massachusetts
Tania Shand, Staff Director
C O N T E N T S
----------
Page
Hearing held on April 24, 2008................................... 1
Text of H.R. 1296................................................ 8
Statement of:
Boyd, Eugene, Analyst in Federalism and Economic Development
Policy, Government and Finance Division, Congressional
Research Service; and Robert J. Spagnoletti, partner,
Schertler and Onorato, LLP................................. 20
Boyd, Eugene............................................. 20
Spagnoletti, Robert J.................................... 27
Letters, statements, etc., submitted for the record by:
Boyd, Eugene, Analyst in Federalism and Economic Development
Policy, Government and Finance Division, Congressional
Research Service, prepared statement of.................... 22
Davis, Hon. Danny K., a Representative in Congress from the
State of Illinois, prepared statement of................... 3
Spagnoletti, Robert J., partner, Schertler and Onorato, LLP,
prepared statement of...................................... 29
H.R. 1296, THE DISTRICT OF COLUMBIA DISTRICT ATTORNEY ESTABLISHMENT ACT
OF 2007
----------
THURSDAY, APRIL 24, 2008
House of Representatives,
Subcommittee on Federal Workforce, Postal Service,
and the District of Columbia,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in
room 2247, Rayburn House Office Building, Hon. Danny K. Davis
(chairman of the subcommittee) presiding.
Present: Representatives Davis of Illinois, Norton,
Kucinich, and Marchant.
Staff present: William Miles, professional staff member;
Marcus Williams, clerk; Howie Denis, minority senior
professional staff member; and Alex Cooper, minority
professional staff member.
Mr. Davis of Illinois. The subcommittee will now come to
order.
Welcome, Ranking Member Marchant, members of the
subcommittee, hearing witnesses and all those in attendance.
Welcome to the Federal Workforce, Postal Service, and the
District of Columbia hearing entitled, ``H.R. 1296, the
District of Columbia District Attorney Establishment Act of
2007.''
The Chair, ranking member and subcommittee members will
each have 5 minutes to make opening statements, and all Members
will have 3 days to submit statements for the record. Hearing
no objection, so ordered.
I will begin with an opening statement. Good morning,
Ranking Member Marchant, subcommittee members and all of you
present in the audience today. I would like to welcome you to
the subcommittee's hearing on H.R. 1296, the District of
Columbia District Attorney Establishment Act of 2007. The
legislation being discussed this morning proposes to create an
elected and independent Office of District Attorney in D.C.,
thereby placing the city on equal footing with every other
locality and jurisdiction in this Nation.
Currently, the District of Columbia is the only place in
our country that has a Presidentially appointed Federal
attorney who is responsible for prosecuting not only Federal
crimes but local criminal violations as well. This means that
the U.S. Attorney for the District of Columbia must
simultaneously perform the necessary responsibilities for both
Federal and D.C. adult felony violations, a task that is
unmatched in any other courtroom around the Nation.
Given the statutory requirements placed on the U.S.
Attorney's Office for the District of Columbia, the District's
Office of the Attorney General, who acts as the city's official
legal authority, is therefore relegated to probing civil
litigation that is directed by and against the District
government. To this end, the District's Attorney General only
prosecutes ordinances, regulations or penal statutes, where the
maximum punishment is fine only or imprisonment not exceeding 1
year.
In response to the peculiar arrangement of the District's
legal system, on November 5, 2002, citizens of the District of
Columbia approved by an overwhelming 82 percent a valid
referendum calling for the establishment of a locally elected
District Attorney. The city council of the District of Columbia
then followed suit with the approval of Bill 14-600, the
establishment of an Office of the District Attorney for the
District of Columbia Charter Amendment Act of 2002, which
sought to amend the D.C. Home Rule Act to permit the citizens
of the District to elect a local DA, whose office would assume
the obligation tied to prosecuting criminal and civil
proceedings.
The legislation was never fully enacted due to a lack of
congressional action, which brings us to today and the
consideration of H.R. 1296, the District of Columbia District
Attorney Establishment Act of 2007. Representative Norton, who
I commend for her extensive work and diligence on this issue,
introduced the measure at hand on March 1, 2007. H.R. 1296
seeks to restore what the people of the District of Columbia
deserve: a locally based, publicly accountable district
attorney. This measure is the final step toward removing the
muzzle that Congress has put on D.C. residents and in turn,
gives them the right that is afforded to every other American
citizen: the right to elect a local district attorney who
answers and is accountable to the community.
I thank you very much and look forward to hearing today's
witnesses, and would now yield to Ranking Member Marchant.
[The prepared statement of Hon. Danny K. Davis and the text
of H.R. 1296 follow:]
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Mr. Marchant. Thank you, Mr. Chairman. Thank you for
holding this hearing.
I understand that H.R. 1296, introduced by Representative
Norton, would amend the D.C. Home Rule Act to create a locally
elected D.C. Attorney General. At the present time, in the
District of Columbia Home Rule Act, Congress leaves criminal
and civil issues that might otherwise be handled by a locally
elected District Attorney in the hands of a Presidentially
appointed U.S. Attorney. The U.S. Attorney for the District of
Columbia prosecutes both Federal and D.C. Code violations.
Coordination of criminal justice activities in the District
of Columbia is unique. There are over 30 law enforcement
agencies with a presence here. Some are city agencies, such as
the Metropolitan Police Department. Some are Federal, such as
the Office of U.S. Attorney for the District of Columbia.
Historically, the U.S. Attorney's Office has facilitated
cooperation for police in areas adjacent to Federal facilities.
Several years ago, the Government Accountability Office
noted that we must continually seek to improve communication
and coordination among these agencies. So any change to the
current governance should be carefully evaluated by Congress as
to whether it truly enhances communication and coordination
among the different interest groups.
I appreciate the chance to discuss the issues today and
look forward to the hearing. Thank you.
Mr. Davis of Illinois. Thank you very much, Mr. Marchant.
Delegate Norton.
Ms. Norton. Thank you very much, Mr. Chairman, for this
hearing and the first hearing held on this bill. I have over
several sessions introduced this important bill, as part of my
Free and Equal D.C. series. I appreciate the fact that you have
afforded us hearings on that series. Indeed, we are making
great headway on that process as I speak. The whole series is
for the purpose of essentially perfecting the Home Rule process
which Congress began in 1974, but leaves many vital functions
here that I do not intend to have remain here. I believe that
Congress is inclined to move forward to transfer out of its
jurisdiction business that is not its business, allowing
Congress and the Federal Government to focus where the people
of the United States expect them to focus.
I think most Americans would be stunned to find out that
the local DA for the District of Columbia is the U.S. Attorney
for the District of Columbia. I think this hearing will be
important in trying to unfold and unravel some of the issues
attending such a unique system. A justice system in any
jurisdiction is always of overriding importance. As it turns
out, it is part of the jurisdiction of this committee to assure
that the justice system meets the highest standards, because
most of it is in the hands of the Federal Government.
Mr. Chairman, I am appreciate, very appreciative for your
hearings on the Bureau of Prisons, because your hearings,
simply by doing oversight, you have already had a profound
effect on that part of our justice system, our prisons and the
Bureau of Prisons. The President just last week signed an
important bill that relates significantly to our justice
system, increasing the number of superior court judges by 3 to
61. There was an unintended result from a bill that assisted
our court system in very important ways when Congress created
the family court division, with a fixed number of judges
dedicated exclusively to children and families as a part of a
bill that former Representative Tom DeLay and I wrote after we
found some issues affecting our children and the family court,
all of whose judges handled these cases.
This bill which the President has just signed and Mr.
Chairman, which started with processing through this committee,
preserves the number of judges at 58 who handle criminal and
civil court matters in the District of Columbia, do not intend
the improvements in the family court. We have seen really
immense improvements for families and children by having judges
dedicated to family issues. We certainly didn't mean, and I can
tell you for sure that Representative Delay did not mean to
shortchange other important criminal and civil processing
matters. The point was to focus on families, not to make other
important criminal and civil matters pay for the improvements.
Interestingly, the money was always in the budget for the full
complement of judges, but it took this committee's
authorization to make that active.
The importance of this bill is perhaps best stated by the
referendum that the people of the District of Columbia
themselves held with 82 percent voting for their own district
attorney elected by themselves. I think that referendum and the
margin makes the best statement about the importance that the
residents of the District of Columbia, and I must say,
residents everywhere, attach to public safety and to direct
control of the officer entrusted particularly with criminal
prosecutions.
The D.C. Council, who responded immediately and enacted or
passed their own bill, my bill is essentially based on the
referendum and on the D.C. Council bill. We want to correct
this, to be kind, anomaly in the Federal system. I want to note
before I go further that the U.S. Attorney for the District of
Columbia is not here, and I want to know why. Because it goes
to the question of accountability. It is not that he would not
have come to testify, we have had the U.S. Attorney before this
committee regularly, because of our jurisdiction, our sole
jurisdiction over the U.S. Attorney.
But Mr. Chairman, the U.S. Attorney for the District of
Columbia cannot come because he is an acting U.S. Attorney. And
he has been in office a couple of years, but he is an acting
U.S. Attorney, because regrettably, I had to oppose his
confirmation. He is left in office and I do not oppose his
being left in office, but I did not believe that he should have
the benefit of confirmation for the U.S. Senate and indicated
that to Mr. Leahy, who offers me that courtesy before he goes
forward.
The reason really goes to a matter, and I regard it as
serious. The U.S. Attorney for the District of Columbia is
accountable to people in the Justice Department. This U.S.
Attorney appears to me to be a competent man. He lives in the
District. He is essentially a patronage appointment. He worked
for a former Attorney General. But he and I have worked
together, he comes to our neighborhoods.
But we discovered that because of pressure from top
officials in the Justice Department of 2 years ago, he hired an
assistant U.S. Attorney who had been fired by the Judiciary
Committee under the then-Chairman Sensenbrenner. Sensenbrenner
of course is still an important member of the minority here,
but was chairman of the Judiciary Committee at the time, was
fired for using the chairman's name on a letter asking judges
to reverse their decisions. There are a number of ethical, not
to mention separation of powers violations involved there.
Apparently this lawyer sought to be re-hired by the U.S.
Attorney for the northern District of Virginia. They simply
refused, based on these violations. But the U.S. Attorney here
was put in a position where essentially, I suppose, he would
have had to either resign or do what his superiors, who are not
the residents of the District of Columbia or any Federal
official, said, and he was put in quite an untenable position,
he then did something that I thought was good. He placed this
person in the appellate division because to place him in the
trial division would be to place him in the place where he
sought to have effect in his letter to the judges. These were
judges of the Seventh Circuit.
So in order to try to reach an accommodation, I asked that
person remain in the appellate division and not be put in the
trial division, the seat of his concern that led to his
violation. And when this matter went all the way up the ladder
to the Justice Department, their answer was, well, we reserve
the right to place this lawyer anywhere we please.
Therefore, this lawyer sits. He could not and I dare say
would not have been hired by any other U.S. Attorney's Office.
It goes directly to the matter of accountability. If a DA here
were so pressured and it became public, by the way, this has
been public, has been covered in the Washington Post, then of
course the people could decide on the fitness of a district
attorney who hired a person under pressure.
The fact is, Mr. Chairman, that no one is accountable for
criminal prosecutions in the District of Columbia. Those
prosecutions are at the discretion of the U.S. Attorney for the
District of Columbia. No, he goes about his daily business, we
are sure in a competent way. But when you consider the
importance of criminal prosecutions, particularly to big cities
all of which have high rime rates, you can perhaps understand
the frustration of the people of the District of Columbia in
having nothing to say about the District Attorney.
Mr. Chairman, the U.S. Attorney has death penalty
jurisdiction. The District of Columbia is a strong anti-death
penalty jurisdiction. Jurisdictions are used to living with,
the anti-death penalty jurisdictions are used to living with
the U.S. Attorneys who occasionally, because they have the
right under Federal law, bring death penalty prosecutions.
There have been occasions which, with some criticism, we have
been able, I think, to correct whether the U.S. Attorney
actually made decisions about whether to prosecute local crimes
in Federal or district court, or Federal court, based on his
desire to use sentencing, the sentencing guidelines or other
matters. We have seen the U.S. Attorney in recent years insist
upon trying to get the death penalty here in Superior Court.
That is interesting, because we have had Republican and
Democratic U.S. Attorneys, and generally, you earn what you can
get here, decide how to spend the people's money.
But we had a whole series of attempts to use the death
penalty which were turned back almost inevitably by juries and
also by court decisions, and yet, they came again. I offer
these examples to you because I think a district attorney would
have to consider this matter. Obviously, if he were prosecuting
crimes here, he could not prosecute under the death penalty,
not because we don't have the death penalty in local law.
But the point I am making is that the juries come from the
District of Columbia, that the pattern in the District of
Columbia is so clear, that to continue to bring such
prosecutions, leaving families waiting for resolution of these
matters and spending what turn out to be Federal taxpayers'
money suggests a lack of accountability, lack of understanding
of the jurisdiction in which recent U.S. Attorneys have had to
operate.
I do not believe the death penalty matters have arisen
under the present U.S. Attorney, so I am not speaking of the
present U.S. Attorney, but I am speaking of the last few U.S.
Attorneys.
Mr. Chairman, there is no issue of greater importance to
the citizens of most jurisdictions than having a say in the
prosecution of local crimes. That is why were are very grateful
for your decision to allow a hearing on this bill. We are very
pleased to have both witnesses. I want to note that Mr.
Spagnoletti is a particularly valuable witness, because he has
been both a U.S. Attorney, an assistant U.S. Attorney in charge
of, or chief of one of the divisions of the U.S. Attorney's
Office here, and he has been Attorney General for the District
of Columbia. I want to welcome Mr. Boyd and Mr. Spagnoletti.
Mr. Davis of Illinois. Thank you very much, Ms. Norton.
We are going to go to our witnesses, and I am going to
introduce the witnesses and then swear them in.
Mr. Eugene Boyd serves as a research analyst for the
Congressional Research Service. He is an expert in the field of
federalism and economic development policy, government and
finance, and has performed numerous studies and projects
related to the intersection between Federal Government and the
District of Columbia. Welcome, Mr. Boyd.
Mr. Robert Spagnoletti is a senior partner at the law firm
of Schertler and Onorato, LLP. Prior to joining the firm, Mr.
Spagnoletti served as the first Attorney General for the
District of Columbia. As Attorney General, Mr. Spagnoletti
represented the District of Columbia in all of its diverse
legal matters. Welcome, Mr. Spagnoletti.
It is the tradition of this committee to swear in
witnesses. If you would stand and raise your right hands.
[Witnesses sworn.]
Mr. Davis of Illinois. The record will reflect that the
witnesses answered in the affirmative.
Gentlemen, we thank you very much, and Mr. Boyd, we will
begin with you. As you know, it is customary for 5 minutes to
summarize. The lights will go on green 5 minutes, yellow 1
minute, red time to stop. We will have questions at the end.
Thank you very much.
STATEMENTS OF EUGENE BOYD, ANALYST IN FEDERALISM AND ECONOMIC
DEVELOPMENT POLICY, GOVERNMENT AND FINANCE DIVISION,
CONGRESSIONAL RESEARCH SERVICE; AND ROBERT J. SPAGNOLETTI,
PARTNER, SCHERTLER AND ONORATO, LLP
STATEMENT OF EUGENE BOYD
Mr. Boyd. Thank you, Mr. Chairman, for the invitation to
testify before the subcommittee.
I am here today to provide a summary of the legislative
history of the District of Columbia District Attorney Act, to
briefly outline the positions of proponents and opponents of
the legislation, and to describe how the proposed legislation,
H.R. 1296, would realign the prosecution of local criminal and
civil cases in the District of Columbia.
H.R. 1296 would amend the District's Home Rule charter by
creating the elected office of District Attorney and
transferring to the DA prosecutorial authority for all local
criminal laws, as well as the authority over the enforcement of
civil laws of the District and civil actions against the
District government. The legislative history of the District
Attorney Act dates back to June 2002, when the City Council
approved a referendum for inclusion in the November 5, 2002
ballot. Eighty-two percent of the votes cast approved of asking
Congress to amend the Home Rule Act for the purpose of
establishing an independently elected DA
In June 2003, Representative Norton introduced H.R. 2334,
proposing a change in the city charter for the purpose of
establishing an elected office of district attorney. No
congressional action was taken on the bill. In succeeding
Congresses, Representative Norton re-introduced the legislation
as H.R. 5800 in the 109th Congress, and H.R. 1296 in the 110th.
In May 2004, then-Mayor Anthony Williams redesignated the
Office of the Corporation Counsel for the District of Columbia
as the Office of the Attorney General. Subsequently, the City
Council approved a measure in February 2005 that amended the
D.C. Code to reflect the change. Currently, the District's
Attorney General has authority to prosecute violations of D.C.
law where the maximum punishment is a fine only or imprisonment
not exceeding 1 year; conduct all civil lawsuits filed against
the District; and furnish legal opinions in writing to the
Mayor. Currently, other major criminal prosecutions are
conducted by the U.S. Attorney's Office for the District of
Columbia.
Under H.R. 1296, however, the newly created Office of the
District Attorney would prosecute all of the criminal laws of
the District. Supporters of the locally elected prosecutor
maintain that the legislation is consistent with the goal of
expanding home rule and self-governance, would create an
independent prosecutor directly answerable to the voters, is
consistent with the practice of most local governments, and
could lead to improvements in law enforcement.
In addition, supporters point to the fact that local
prosecutors are overwhelmingly elected to office. A 2002 report
by the International City-County Managers Association found
that 93 percent of 876 counties reported that the local county
prosecutor was an elected position.
Opponents of the measure to establish the elected position
of District Attorney contend that creating such an office could
result in significant costs to the District as prosecutions
currently handled by the U.S. Attorney may shift to the DA's
office. They note that a 2002 report by the CFO estimated the
cost of implementing the proposed legislation would be $57
million. The estimate assumed that portions of the caseload of
the U.S. Attorney's Office would be wholly transitioned to
local authority.
H.R. 1296 leaves several unanswered questions open for
discussion. Most of them would be left for local officials to
resolve, but Federal involvement or Federal assistance may be
needed under certain conditions. For instance, the following
issues may require Federal consideration:
Staffing of the new office. How would the new Office of
District Attorney be staffed? Would some of the attorneys now
in the Attorney General's office be transferred? What will be
the future responsibilities of the Federal attorneys who are
handling district cases?
The role of the Attorney General. The bill does not call
for the abolition of the Office of the District Attorney
General, although it would transfer some, but not all of the
duties and responsibilities of that office to the District
Attorney. It may leave many still within its authority.
Would the Attorney General's office continue to provide
legal opinions and support to the Mayor and executive branch
agencies? And finally, funding. Currently, Congress provides an
annual appropriation for the operation of the local court
system and criminal justice-related activities. Although the
bill does not assume Federal financial support for the Office,
some observers contend that such support will be consistent
with the Federal Government supporting other elements of the
criminal justice system.
Conversely, it may be argued that the U.S. Attorney's
involvement in the prosecution of local crimes represents a
savings to District residents, much like Federal support for
court operations and defender services.
Mr. Chairman, this concludes my testimony. I will be happy
to answer any questions.
[The prepared statement of Mr. Boyd follows:]
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Mr. Davis of Illinois. Thank you very much. We will proceed
to Mr. Spagnoletti.
STATEMENT OF ROBERT J. SPAGNOLETTI
Mr. Spagnoletti. Thank you, Mr. Chairman, members of the
subcommittee. It is a pleasure to be here today to discuss H.R.
1296.
As you noted before, I was an Assistant U.S. Attorney for
the District of Columbia from the year 1990 until 2003, and
served as the Chief of the Sex Offense and Domestic Violence
section in that office. I then had the pleasure of serving as
the Attorney General for the District of Columbia from 2003
through 2006 under Mayor Anthony Williams, and began my tenure
when that office was known as the Office of Corporation
Counsel.
The Office of the Attorney General for the District of
Columbia is unique. Appointed by the Mayor of the District, the
AG has the statutory obligation to conduct the District's ``law
business.'' Thus, in addition to handling all the District's
civil litigation, the Office of the Attorney General is
responsible for virtually every aspect of the city's law
practice, including real estate tax, bankruptcy, child
protection, child support, domestic violence, anti-trust
consumer protection and all the city's appellate work. The
Office also shares criminal prosecution authority with the
Office of the U.S. Attorney.
The District's Attorney General is unique in other ways. It
is one of the few State-level chief legal officers who is
appointed by the Chief Executive. Most Attorneys General in
States are elected. The District's Attorney General does not
serve for an established term. The District's Attorney General
could be removed by the Mayor at will and without cause, and
there are no minimum qualifications for being the appointed
Attorney General, including no requirement that the Attorney
General be licensed to practice law in the District of
Columbia.
H.R. 1296 would significantly change the way that the
District's chief legal officer is selected and the scope of his
or her responsibilities by transferring those powers from the
U.S. Attorney's Office to prosecute local offenses to the new
District Attorney. Having served in both offices, I am pleased
to offer my thoughts on the bill.
First, I fully support the concept of an elected District
Attorney for the District of Columbia, a position shared by 80
percent of my fellow District residents, who voted in favor of
an elected District Attorney in the referendum. Indeed, there
is no logical reason why District residents should not be able
to elect their chief legal officer in the same manner as almost
every other State. Forty-three States conduct State-wide
elections for their State Attorneys General.
The Attorney General for the District of Columbia is
appointed by the Mayor and serves entirely at his pleasure,
subject to removal for any or no reason. This creates a
complicated dynamic between the Mayor and the Attorney General
where every decision made by the chief legal officer may be
influenced by the Mayor under the explicit or implied threat of
being removed from that position.
A District Attorney independently elected by the citizens
of the District would enjoy greater independence from the
Mayor, would be free to zealously represent the interests of
the District of Columbia, and would be held accountable
directly to the public. H.R. 1296 would also unify local
criminal prosecutions. Criminal prosecution authority for local
crimes is currently divided between the Office of the U.S.
Attorney and the Office of the Attorney General. The division
is based on historic and technical grounds and not a logical
division of criminal offenses.
The AG's office prosecutes traffic code violations, local
tax crimes and a number of quality of life misdemeanor offenses
where the penalty is jail or a fine but not both, where the
penalty is a year or less. The AG also prosecutes all juvenile
delinquency cases. Whereas, the U.S. Attorney's Office
prosecutes all those offenses for which it had responsibility
at the time Home Rule was enacted, which are most of the felony
charges and serious misdemeanors where the penalty is jail and/
or a fine.
This unusual division of charges and responsibilities leads
to unusual results. First, one offense can lead to charges by
both offices in the same courthouse. Second, the division
dictates unusual results in case management. It is not unusual,
for example, for the Attorney General of the District of
Columbia to seek immunity from prosecution for a witness from
the U.S. Attorneys' Office from the District of Columbia for
local offenses, when the District has need for that witness's
testimony. These complications would not exist under a unified
chief prosecutor.
I would recommend, however, that the position created by
H.R. 1296 be called Attorney General for the District of
Columbia, rather than the District Attorney. The term District
Attorney is generally used for a jurisdiction's chief
prosector. Here, as described in the bill, the new office would
comprise all of the existing civil, family, transactional and
criminal functions of the current Attorney General and add the
local prosecution authority of the U.S. Attorney. The combined
civil and criminal authority is more akin to States' Attorneys
General such as Rhode Island, Delaware and Alaska, which have
the combined powers, than a pure District Attorney, which
generally is criminal prosecution.
The minimum qualifications in H.R. 1296 are moderate and
reasonable, given that there are no qualifications at the
moment. I would urge the subcommittee, Members and staff to
take a look at my testimony for some of the logistical
difficulties in implementing this bill. There is a huge
financial implication for this for the District by subsuming
the responsibilities of the U.S. Attorney's Office as well as
logistical issues dealing with the inter-relationships among
those parts of the local criminal justice system that are
funded by the Federal Government.
I see my time has run, and I am happy to answer any
questions.
[The prepared statement of Mr. Spagnoletti follows:]
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Mr. Davis of Illinois. Thank you very much.
I want to thank both of you gentlemen for being here and
for your testimony.
Mr. Boyd, I will begin with you. In your report on H.R.
1296, you make mention of several outstanding issues with
regard to the bill's proposal for an elected District Attorney.
In your opinion, if enacted, what would be the most significant
operational challenge posed by this legislation?
Mr. Boyd. Mr. Chairman, I think the transition, whether or
not, how the U.S. Attorney's Office will cooperate, coordinate
with the newly created Office of the District Attorney.
Mr. Davis of Illinois. Following approval of the
Revitalization Act, why do you think the prosecution of local
criminal cases was assigned to the U.S. Attorney's Office
versus remaining with the District's Office of the Corporation
Counsel?
Mr. Boyd. Again, I think it probably was a question of
cost. At the time, if you recall, Mr. Chairman, the District,
the Federal Government became responsible for a number of court
operations and criminal justice activities, it was shifted to
the Federal Government I think to the tune of approximately
$200 million or so. So I think it really was a recognition of
probably some kind of savings that could be achieved.
Mr. Davis of Illinois. If you were trying to strengthen
H.R. 1296, can you think of any way that you would seek to do
that?
Mr. Boyd. I would go back to the first answer I posed, and
I think it is a question of transition, whether or not there
should be some clear statement in the legislation that clearly
defines how the U.S. Attorney's Office would cooperate with the
newly created District Attorney. Of course, there is a question
of money, whether or not Congress would, as it has done with
other activities of criminal justice that it supports for the
District of Columbia, whether or not it would provide some
funds for the transition.
Mr. Davis of Illinois. Thank you.
Mr. Spagnoletti, staffing and cost considerations have been
highlighted as probably the greatest barrier to implementing
H.R. 1296. How would you recommend dealing with the staffing
and financing?
Mr. Spagnoletti. It would be a complicated issue, Mr.
Chairman. There are more than 300 attorneys at the U.S.
Attorney's Office right now. I would venture to say that about
200 of them, plus or minus, handle local affairs, either at the
trial level or at the appellate level, and then probably
another several dozen who provide support services to those
lawyers.
So really, not quite two-thirds of the office are handling
local matters, if you will. That is a substantial number of
bodies that would need to be brought over to the District of
Columbia, if you were going to take them over wholesale. There
are certainly ways to do it in a more strategic way, if you
will. For example, the Office of the Attorney General already
handles a fair number of misdemeanor cases. Indeed, they handle
about 10,000 misdemeanor cases every year on their level,
combined traffic and what we call D.C. offenses.
The U.S. Attorney's Office could bring over the
misdemeanors first, then bring over the felonies later, you
would have a grand jury issue to be concerned about as well,
because the local grand jury sits in the U.S. Attorney's
Office. So there are some logistical issues that would need to
be thought through, both in terms of whether or not these folks
are simply going to come over, whether you would create new
positions on the District side to have them filled. I think it
would be, as Mr. Boyd points out, I think that would be the
logistical difficulty in doing it.
Mr. Davis of Illinois. I come from a town where people are
pretty straight up in terms of expressions. There is one
expression that people have that says, you have to pay the cost
to be the boss. How do you think your fellow citizens in the
District would feel about some cost increase relative to
financing the Office?
Mr. Spagnoletti. Again, I will speak on behalf of myself as
a citizen of the District of Columbia. I think you are right,
you do have to ``pay'' in order to be the boss. It is a
worthwhile venture to give the District of Columbia control
over its local prosecutions to make this happen. And indeed,
without knowing sort of the full picture of what Congress might
decide to do at the end of the day with this, there may be some
ways to reduce the overall combined costs, if you will, by
using some of the existing resources and requiring the U.S.
Attorney's Office to share some of the existing infrastructure
with the Office of the Attorney General, if that is the
direction that Congress were to go with this.
I would also point out that there are other parts of the
system that remain federally funded even if this bill were to
move forward: public defenders service, court services and
defender supervision agency that provides pre-trial and
probation services to local offenders. Those are all currently
funded by the Federal Government. I would create an interesting
dynamic to have a locally funded and independently elected
prosecutor and have these other parts continually federally
funded.
I would also point out that currently, felons on local
offenses are sent into, as I am sure the chairman knows, the
Federal Bureau of Prisons. You would have a locally elected
prosecutor making prosecution decisions that will impact
Federal prison resources at the end of the day. The financial
implications of this stretch beyond the personnel costs of
moving over those 200 prosecutors to the rest of the system.
But speaking on behalf of myself as a citizen of the
District of Columbia, at least for this piece of it, I think it
is a worthwhile investment of local resources to have local
priorities govern prosecution of local offenses.
Mr. Davis of Illinois. I thank the gentlemen very much.
Mr. Marchant.
Mr. Marchant. Thank you, Mr. Chairman.
Where I come from, the District Attorney would be the
county attorney in Texas, and would bring prosecution on all
criminal offenses in the county for each city. So the cities
only have municipal judges and local prosecutors.
So it is not exactly a model that I am familiar with, where
the city itself would have the Attorney General, or the
prosecuting attorney. Then we have the other overlapping
jurisdiction of the U.S. Attorney. Is that how you would
envision this to work on the ground in D.C.? Would D.C.
basically be like a county, like functions in Virginia?
Mr. Spagnoletti. The District, of course, is unique. The
Attorney General's Office for the District functions as what
would be the equivalent in the States as a city attorney, the
county attorney and the State Attorney General rolled into one.
It handles all the civil cases, it has child support, child
protection, it handles domestic violence and all the
transactional work.
But the New York Corporation Counsel, what that office does
is already done by the D.C. Attorney General's Office. The
Attorney General for the District is a member of the National
Association of Attorneys General because it really does have
State-like responsibilities in its job function every day. But
because we don't have any subdivisions, they all roll up into
the Attorney General, including the General Counsel for all the
agencies that are subordinate to the Mayor. The Attorney
General has supervisory authority over them as well.
So it really, I would actually suggest that you take a look
at Delaware, Rhode Island and Alaska. Delaware and Rhode Island
in particular, where the State Attorney General has the typical
AG functions but also serves as the State prosecutor. Because
that is where we are most comparable, both in terms of size and
population as well. That is what their scope of responsibility
happens to be.
Mr. Marchant. Yes, and in Texas, the State Attorney General
has no criminal prosecution at all.
Mr. Spagnoletti. I think most of the State AGs do not have
direct criminal prosecution for local offenses. They can either
request it, they can be asked to step in. Some States share
that responsibility but don't use it. Utah, for example, they
share the responsibility with local prosecutors. They only step
in when they think the local prosecutor is not doing what needs
to be done in that case.
But they also have all the appellate authority for the
State, and they will conduct, on the appeal side for criminal
cases, on behalf of the entire State and all the local
jurisdictions to ensure the State is speaking with one voice on
important legal issues relating to criminal law. So again, I
think that the District, unique in many respects, you just have
to roll up the city attorneys and the county attorneys and the
State AG into one office, which is why, of course, I recommend
using the name in the bill as the Attorney General rather than
District Attorney. Because the DA suggests criminal, Attorney
General suggests the wide range of responsibilities.
Mr. Marchant. But per your testimony, even if you
accomplish that, you would still have a Federal AG that would
prosecute Federal crimes?
Mr. Spagnoletti. Absolutely.
Mr. Marchant. Just like in a State.
Mr. Spagnoletti. Absolutely.
Mr. Marchant. But unlike a State, all of the support
agencies that are usually funded by a State or a city or a
county are funded by the Federal Government here.
Mr. Spagnoletti. It is a mix. The Metropolitan Police
Department generates most of the cases that come in to the U.S.
Attorney's Office and certainly to the Attorney General's
Office. That is locally funded. But more than most other
jurisdictions, we have Federal law enforcement agencies in the
District, many of them, that have local arrest powers. So we do
have the Park Police, the Capitol Police, all of them making
arrests under local offenses.
I think actually more significant than the arrest powers
are actually the investigation side of things. Although MPD
does most of the investigations, from the most serious crimes,
the District is still relying substantially on the FBI, ATF,
DEA for its backup work. They are working on changing that by
having a local lab and doing those things. But those are parts
of the puzzle that need to be considered when these things get
done.
Mr. Marchant. So talk about the Park Service. We have had
some very high profile Park Service investigations and arrests.
Under this proposed legislation, would they continue to be in
the Park Service? Would those authorities continue to be vested
in there, or would they transfer over to the city Attorney
General?
Mr. Spagnoletti. What would happen is, the Park Police
makes the arrest under an agreement that the Park Police has
with the District of Columbia, allowing it to enforce its local
laws, if you will. So if they are on park land, they need to
make an arrest, they bring it in. Because the charges go two
different ways, if it is an indecent exposure case, for
example, that is an AG offense so they go to the local Attorney
General's office. Park Police comes in to do what we call paper
the case.
But if it is a possession of marijuana case, it goes to the
U.S. Attorney's Office. It is just a matter of which way they
walked. Did they walk to 555 Fourth Street or 441 Fourth
Street? Just two different sides of the street over there. That
would be the difference.
I actually would suggest to you that the bill puts the
District on the same footing as other jurisdictions when it
comes to the decision about local versus Federal prosecutions.
Right now, when a case walks in the door at the U.S. Attorney's
Office, there is not necessarily any kind of a discussion that
goes on between the local authorities and the Federal
authorities about whether this case is better placed in the
Federal courthouse or in the Superior courthouse. Because the
U.S. Attorney has the complete authority to make the decision
about which direction that case goes.
But in every other State in the country, the local
prosecutor and the U.S. Attorney have to have a discussion
about what makes the most sense. They have to cooperate that
way. And although I will say that in recent years, the U.S.
Attorneys who have held the position have really made efforts
to reach out to the local population, the Attorney General's
Office and the council, it does allow them to basically keep
the matters entirely within their own office without
necessarily sharing information.
I have to say that I have had experiences as the Attorney
General where I needed to do something on the local level, but
the U.S. Attorney's Office had the information in their hands
and they didn't share it with me. Because they thought it was
more important to do whatever they were going to do on the
Federal side than it was for us to do on the local side. There
was no conversation, because they have the entire ball of wax,
if you will, in their hands.
So while I say generally the communication is good, but by
placing all the local and all of the Federal matters into the
U.S. Attorney's hands, there is no discussion, because the U.S.
Attorney makes those decisions.
Mr. Marchant. And there is no ability on the part of the
U.S. Attorney's Office to give that authority to the city, does
it have the authority to cede that power to the city now?
Mr. Spagnoletti. In some small circumstances where there
are some technical things in the Code, but yes, there are some
circumstances where we have cross-designated assistant U.S.
Attorneys as Attorneys General to try to minimize the problem I
discussed in my testimony. For example, someone gets arrested
in the act of prostitution, and there is an indecent exposure
and a prostitution charge. Indecent exposure is an AG charge,
prostitution is a U.S. Attorney's Office charge. For years and
years, it would be two separate cases, two separate jackets,
two separate judges marching those cases there.
When Ken Weinstein was the U.S. Attorney and I was the
Attorney General, we entered into a written agreement that on
certain low level offenses we would bring those into one court
or the other and allow the respective assistants to prosecute
those matters, to try to minimize what was going on with the
duplication of cases and reduce the number. But that exists
only at the lowest level because of what the power of the AG
has right now in terms of its criminal authority.
Mr. Marchant. Do either of you consider yourselves to be
Constitutional lawyers?
Mr. Boyd. I am certainly not. [Laughter.]
Mr. Marchant. Mr. Chairman, if there is another hearing on
this, I would request that we have a Constitutional lawyer to
get some perspective on the Constitution as it is written and
the opinion of the effects it would have on the Constitutional
intent of this Federal zone, this Federal State and what a
change like this may or may not have as far as
Constitutionally. Thank you.
Mr. Davis of Illinois. Thank you very much, Mr. Marchant.
We will make sure that happens.
Ms. Norton.
Ms. Norton. Thank you very much, Mr. Chairman. I hope that
you will make available, if you have not, the CRS report on
this matter, which did not raise Constitutional questions. I
can understand the ranking member's interest in that. The fact
is, the only reason the District has a U.S. Attorney is that in
essence, there was no local jurisdiction here. There was nobody
else to prosecute crimes for 150 years. We were denied Home
Rule. Thus, somebody had to do it. You have the U.S. Attorney
doing it.
It has not been suggested that we couldn't do for the U.S.
Attorney the same thing we do, for the U.S. Attorney, creating
a DA, Attorney General, whatever you want to call it, the same
way we have done for the Mayor. There wasn't any Mayor, either.
There wasn't any City Council either. We passed the Home Rule
Act, Federal jurisdiction. We have delegated the executive
authority to the Mayor, legislative authority through the
Council, and we can delegate the Authority to prosecute local
crimes, in my judgment. And I do speak from some background as
a Constitutional lawyer. I believe we could delegate that
authority from the U.S. Attorney to an elected person.
Both of you, you, Mr. Boyd, you, Mr. Spagnoletti, raise the
notion of this nomenclature, which I think could be quite
confusing, and I would hate the bill to get all messed up with
nomenclature. The fact is, Mr. Spagnoletti, you were a classic
Attorney General before. That is to say, normally U.S.
Attorneys, the Attorney General does not have major criminal
jurisdiction. So you converted the name which, as a native
Washingtonian, I can tell you has always been Corporation
Counsel, and also is a word used in some jurisdictions, you at
least were using a term which was conversant with the duties of
the office.
And Mr. Boyd raises in his testimony the notion that we do
not call for the abolition of the role of the Attorney General
of the District of Columbia. We don't in this bill, because we
are writing a Home Rule bill. If the District wants to do that,
that is for it to do.
But Mr. Spagnoletti implies that because Delaware does in
fact apparently, probably to save time and money, it puts both
functions in the same place, implies that you really could have
them both in the same place. I want to ask you, Mr.
Spagnoletti, I want to ask you whether or not, given the nature
of criminal prosecutions here, in a big city, whether that for
you is an important point, to have an office that covers civil
and criminal matters in the same office, and if so, for what
reason?
Mr. Spagnoletti. As I read the bill, because it takes the
D.C. Code and changes the name, if you will, of the current
Attorney General, actually I think it still reads Corporation
Counsel in the bill, but the Attorney General, and sort of
rolls them into one, my reading of the bill actually has
virtually all the powers of the current Attorney General being
merged there. So I thought actually it was more the intent of
the bill to have those things all together.
But certainly, I can see a model where you simply take the
criminal prosecution from the Attorney General's Office, the
criminal prosecution from the U.S. Attorney's Office and roll
that together into an elected DA and severing the rest of it
out to an Attorney General for the District.
Ms. Norton. You are right, the Counsel would have to make
that decision. The one issue that would bother me about that is
the issue of the independence of the DA. This is somebody who
ought to be able to prosecute a mayor or city council members.
This is somebody who the Mayor should have no control over,
that is why the people of the District of Columbia wants them
elected. I don't want to suggest we want them to prosecute our
public officials, but the independence for the, this is the
only official that would be as independent as members of the
Council, as independent as the Mayor. It is not just because we
want another elected official.
The reason I raise this is when you imply, and we would
have to look at what the Delaware experience was, is that it
has been a matter of some concern in the District now that
there is confusion as to whether or not, and I can understand
the confusion, I think it is structural confusion, even within
an office that doesn't even have major criminal jurisdiction as
to whether or not the Attorney General is essentially an
independent officer or whether or not he is like every other
appointee of the Mayor.
This confusion I think is harmful. But it is harmful
because of the structure that Congress has set up, giving the
Attorney General certain roles, I am sorry, given where, and
this was initially set up by the Congress, but where the
Council seems to be contemplating trying to clarify just how
independent even the Attorney General is. Well, the controversy
has arisen about independence within an agency that everybody
knows, and nobody has suggested, at least yet, should be
elected, should be appointed.
Then I raise this only out of this discussion, wonder
whether or not we would be defeating the independence of this
official by mixing with the criminal prosecutions, that is
responsible for criminal prosecutions, his responsibility for
some matters where he must be directed by the Mayor and then by
the City Council.
Mr. Spagnoletti. To roll together everything would be a
challenge, to say the least, for the Attorney General to keep
going. But it is not unusual, and it is not unusual for----
Ms. Norton. How is independence preserved? What kind of
wall preserves the independence of the Attorney General? Is he
elected?
Mr. Spagnoletti. It is the election, yes. I guess what I
contemplated in reading your bill is that it would be the
elected Attorney General, have all those authorities that ran
to the former Attorney General as well as the prosecution
authority, the local prosecution authority from the U.S.
Attorney.
Ms. Norton. I am speaking functionally, Mr. Spagnoletti.
Yes, you give him the authority, functionally, he is
responsible to the executive for executive functions. He is
responsible to no man for criminal prosecutions. So I am just
suggesting without knowing, because I think this matter would
be left, obviously, to the Counsel, that the notion that it all
hangs together and if he is elected it will work out all right,
even though his responsibilities to the executive are clear, is
something I think would need investigation.
Mr. Spagnoletti. I guess I would say two things. One is
that the challenge that you point out is one that is
experienced by every State Attorney General across the county.
Ms. Norton. Yes, I need to know what it is.
Mr. Spagnoletti. For every matter, the question is always,
who is the client. The person himself as the Attorney General
is protected by the election process. So at least in terms of
your job not being on the line when you make a decision, the
election, at least, the election process takes care of that.
But then for every matter, and this is true of every
attorney general, for every matter, who the client is changes
where your line of responsibility, like every lawyer, happens.
In a criminal case, you are beholden to the people as a whole,
and you can't be directed or influenced by other members of the
executive, legislative or judicial branch in how you do those
functions.
But in civil matters, you do take your direction, and it is
true of every Attorney General----
Ms. Norton. Mr. Spagnoletti, I don't want to press this,
although the lawyer in me wants to. I mean, we have child abuse
matters, you have matters that move that, the line, and it was
so clearly drawn, there would be a whole lot less litigation in
this country. And I think the, and I raise it only because it
is an interesting legal question and because as Mr. Boyd
raised, you still have the Attorney General, and I responded to
him the reason is that for the District to decide.
But I just want to leave a notion that I think wrapping it
up is something that raises issues that they would have to sort
out. That is the only reason I am pressing it, not to want to
solve it.
But I do want to ask you about your dual experience. It
seems to me to be invaluable to us. Because you were
responsible for just the kind of cases that I think could cause
confusion in an office that has the Attorney General and the DA
in the same office, because you were responsible for all
criminal cases in the U.S. Attorney's Office as its chief of
the Sex Offense and Domestic Violence Section for prosecuting
criminal cases involving sexual abuse of adults and children
and intra-family offenses, etc.
Now, did your experience lead you to believe that the cases
that you prosecuted could have been easily, more easily,
perhaps handled by an official who was elected by the people of
the District of Columbia who had to live in the District of
Columbia?
Mr. Spagnoletti. I certainly think that could have been
handled just as easily, yes.
Ms. Norton. Was there any advantage to prosecuting sexual
abuse cases involving children and families in a U.S.
Attorney's Office?
Mr. Spagnoletti. But for the resources that were available
to us, I think that was really the only difference.
Ms. Norton. The notion--do you have any experience in
bringing families to the U.S. Attorney for such prosecutions,
families which may still be together but where you are
prosecuting people for sexual abuse and the like? Here it has
become what looks like a Federal offense and you are dealing
with the Feds. Must have been a serious crime or it wouldn't
have been prosecuted by you. But I am wondering whether or not
that even facilitates criminal prosecution at the Federal
level, even facilitates what we all hope for when even serious
family matters develop.
Mr. Spagnoletti. I guess I would say two things. One is, it
does require, every time someone walks into the office, an
explanation of why they are coming to the U.S. Attorney's
Office and the fact that it is not----
Ms. Norton. Did you have any social workers to deal with
such families in your office?
Mr. Spagnoletti. In the U.S. Attorney's Office?
Ms. Norton. Yes.
Mr. Spagnoletti. There were victim witness advocates that--
--
Ms. Norton. Volunteers?
Mr. Spagnoletti. No, actually employees. We started the
program in 1996.
Ms. Norton. Excellent.
Mr. Spagnoletti. So there were victim witness advocates who
worked with those families. But again, they were Federal
employees, so it required another step to hook them up with
local services and local processes along the way.
I would also mention that, I don't want anything to think
that, when cases come in under the Sex Offense and Domestic
Violence side, which is in the Superior Court division in the
U.S. Attorney's Office, it was extremely rare, very, very rare,
that those cases ever made it over to the Federal side. There
was a division in the office that, I mean, I have not been
there in a few years, but there was a fairly significant
division between the Superior Court side and what they called
the criminal division. So it is not as though the cases are,
once they track, they tend to track one direction or the other.
And sex offense, domestic violence, child maltreatment cases
almost always tracked down Superior Court side.
Ms. Norton. Of course, it must have been very serious
offenses for you to have had jurisdiction at all.
Let's go back to the testimony of Mr. Boyd. You mentioned a
figure over $50 million for the cost. What was that figure?
Mr. Boyd. It was $57 million, that was an estimate by the
CFO in 2003. I know that some have challenged that estimate.
Ms. Norton. Well, I don't challenge it. I don't challenge
it, because I think one has to look straight in the face of the
costs and I will say that when the Council went to do its bill,
I questioned them about whether or not, before I put my bill
through, they understood that this was a transfer of costs to
the District of Columbia, that the District of Columbia had
never borne. I was told by those who know best in the Council
they were prepared for that cost.
In your judgment, Mr. Spagnoletti, I would have to ask you
about that. Your office, the Attorney General's Office, has
often, this is not, I speak not unto you, Mr. Spagnoletti, but
for years been seen as an office that was not splendidly
funded. In fact, an office that has had some difficulty with
the courts. Do you believe that the, in your judgment having
been an Attorney General, that the city would in fact take on
the cost, no matter what it was, for the new person, Attorney
General or DA, and all that goes with that person and that
office?
Mr. Spagnoletti. I would assume that would be the case,
given the combination of referendum and action by the Council.
I think you are correct in your analysis of where the Office of
Corporation Counsel was. I would say that within the past,
maybe this is a little self-serving, I realize, but I do think
it has made significant headway moving forward in terms of its
technology and the support that it has to do its job. I think
the court has recognized that certainly in recent years.
So I think a measured transfer, and again, I am assuming
the District has bought into this, that is, the elected
officials have bought into this who are going to control and
make budgetary decisions, since they have----
Ms. Norton. Do you think the city is capable of handling
this $57 million or as it goes up cost?
Mr. Spagnoletti. I would assume so, yes.
Ms. Norton. We have a budget here, what, $3 billion
locally? I don't know if that $6 million will count everything.
Mr. Boyd. Ms. Norton, if I could interrupt for a minute, we
did look at a couple of cities of comparable size to the
District or counties. Baltimore, for instance, it is State's
Attorneys Office, budgeted about $31 million.
Ms. Norton. That is the office of the local DA?
Mr. Boyd. Right, that is the local DA. The King County
Prosecuting Attorney's Office, that is where the city of
Seattle is located, had a budget of about $53 million.
Ms. Norton. Well, this office is, although if you talk to
the U.S. Attorney, particularly in the last few years, their
own funding has suffered markedly. Nevertheless, the U.S.
Attorney's Offices, I should say, are known for splendid hires,
and so much so they go on to be, as Mr. Spagnoletti progressed,
if you could considered that, or to be judges themselves. They
are of very high quality. There recently has been a huge outcry
about the Attorney General scandal here, because they were
considered always although appointed by the President, they
were considered, and frankly, it had a long record of being
apolitical, going where they have to go.
You say, Mr. Spagnoletti, there are more than 300 lawyers,
this is on page 6 of your testimony, in the U.S. Attorney's
Office. This is really stunning. Everybody should listen to
this, 200 of them prosecute local criminal matters. The people
of the United States are essentially paying for the local DA or
Attorney General.
Do you believe, having been in both offices, Mr.
Spagnoletti, that the U.S. Attorney left only with Federal
jurisdiction would have ample authority to have a U.S. Attorney
for the District of Columbia here and move forward?
Mr. Spagnoletti. Absolutely. There are plenty of cases, in
fact, I would say that one of the reasons the number on the
Superior Court side is so high is that cases that would
otherwise be brought federally are being directed locally for
operational form, shopping, if you will, types of reasons. It
in no way suggests that there is a lack of cases, a lack of
work or a lack of authority. In fact, quite the opposite. I
think there is plenty of work that needs to be done on the
Federal side by the U.S. Attorney side from what would normally
be local offenses.
Ms. Norton. For the record, I would like to clarify this
notion. It is true that you have two sets of, you have more
Federal police here than elsewhere, this is Federal
jurisdiction. And you have the Park Police, I think alone, has
city-wide jurisdiction along with the D.C., and you know what?
This Member, who loves the Park Police, would strive to keep it
that way. Because what they do is arrest people, some of our
biggest drug busts over the years have come from Park Police.
Why? Because much of their patrol is in and around parks. Many
of those parks are in high crime neighborhoods, across the
Anacostia, Anacostia Park, Fort Dupont. So they have been very
helpful to us.
The fact that the Park Police, or for that matter the
Capitol Police, can make some arrests, why is that any
different from what the Park Police would do in Wyoming or what
Federal police do elsewhere? If they make an arrest and, if
they are making an arrest under delegated jurisdiction as the
Park Police is, does, then of course it seems to me there is a
long history of how to do that. But suppose you have other
Federal police who make an arrest. Let us say in other
jurisdictions, which have normal relationships with Federal
agencies, let me ask a question, how would those Federal
officials from those agencies deal with the local DA or the
local authorities?
Mr. Spagnoletti. As I mentioned before, I would expect that
the agreements would all continue for enforcement of local
laws. There would be the same types of arrests that there are
now.
What could happen, I suppose, is that intervening step if
the local prosecution authority was all moved over to a DA or
an attorney general, where if there was an arrest on park land,
they might very well run it past the U.S. Attorney to see if
they wanted to do it locally, much in the same way the Eastern
District of Virginia does, before they send it off to the local
officials.
But again, I would expect that with cooperation all that
would be worked out in advance, so that folks would know, if
you pick up a marijuana misdemeanor case in Rock Creek Park,
they are going to take it there as opposed to here on the mall
here as opposed to there.
Ms. Norton. What you are saying is important, I am really
trying to discern whether there would be any difference here
than what occurs generally throughout the United States when
there is mixed jurisdiction or when, for example, a rape occurs
in a park where the rape is, you have to decide who is going to
prosecute it, local, or whether you are going to bring it
through the U.S. Attorney.
Mr. Spagnoletti. Well, actually, I think it is the same as
other States, and actually a little bit easier in the District
for that kind of coordination. Because we only have one court
of general jurisdiction, and you don't have Federal authorities
having to go to different counties and district courts and
circuit courts and the rest.
Ms. Norton. You raise some operational challenges. I
appreciate your raising them in your testimony. But I wonder if
they also don't track what happens in local jurisdictions. The
Federal agency, the mention that the Attorney General's Office
relies on the FBI, ATF and DEA. Now, because he is a Federal
official, he probably has far greater access, more inclined to
go to the FBI. If you go to Prince George's County, they will
tell you the FBI was deeply involved in police matters there
and in helping the State's Attorney there with respect to some
police abuse matters that occurred there. Doesn't every
jurisdiction cooperate with the ATF and the DEA without even if
the matter is a local matter?
Mr. Spagnoletti. Yes. However, the one difference in the
District is that we rely on some of those agencies for very
routine cases as well. Whereas other States have local labs
that will do it, for example, the DEA doing all of the chemical
analysis on our drug cases.
Ms. Norton. That is because we don't have a lab.
Mr. Spagnoletti. That is right. I just point out, that is
really the issue, is that it has allowed the District to move
slowly on developing a lab, because it has relied so heavily on
the FBI, DEA and ATF for very routine kinds of analyses that
are done by States or local jurisdictions in other places. But
I think you are correct, there is no difference in bigger
matters where you would expect that kind of cooperation from
the FBI, ATF and DEA.
Ms. Norton. I would also like to have your view on the
notion that some of our functions might remain Federal
functions, at least for cost purposes: public defender,
appointed judges, our prisoners who are in the Bureau of
Prisons. These people work under the D.C. Code. Has that caused
any confusion that the public defender is funded--that is what
it is--funded by the Federal Government, that the judges are
funded, and for that matter appointed by the President of the
United States, or that our prisoners are in Federal prisons?
Has that caused any confusion between local and Federal
jurisdiction?
Mr. Spagnoletti. Operationally, no.
Ms. Norton. I just want to make sure that we understand
these problems, so that we can know about them in advance. So
they won't be raised as reasons to oppose the bill.
Most, if I may say so, most of what we get in excess of
what you might expect from Federal agencies comes because of
location and because they have a Federal U.S. Attorney and so
you get some little increment of resources. That is what D.C.
would have to give up and be willing to give up. Now, it would
still have the same access that any State has to the FBI, the
ATF, the DEA and the rest of it.
But you mention with the best example, and by the way, that
would remain, the best example is of course the lab, the
forensic lab. And we are building a new forensic lab. But until
we have built one there is no doubt in my mind that if there
was a local DA or Attorney General, that the Federal Government
would continue the present arrangement. After all, we worked
out an arrangement with them that respects the local
jurisdiction.
Let me ask you, finally, Mr. Spagnoletti, about the
jurisdiction of the U.S. Attorney's Office with the ability to
charge some 16 and 17 year olds as adults. You mentioned this
in your testimony. How are children incarcerated if these
children are charged as adults, essentially by the U.S.
Attorney and not by, not elsewhere?
Mr. Spagnoletti. They are incarcerated in the adult system.
So they would be placed in whatever facility, but of course,
probably segregated as appropriate, given their age or
vulnerabilities. But once they are prosecuted by the U.S.
Attorney's Office, they go that direction.
Ms. Norton. Once they are charged, while they are awaiting
trial, what happens to these children?
Mr. Spagnoletti. They are held as adults. Again, maybe
segregated along the way.
Ms. Norton. Where would be held? Would they be sent to OPO?
Mr. Spagnoletti. No.
Ms. Norton. When you are charged with a Federal crime, it
is pretty serious, you did something as a 16 or 17 year old
that meant you are not in juvenile court, or Superior Court.
Mr. Spagnoletti. Right. As I understand it, they would be
held, for example, pending trial, in D.C. jail but away from
either the sentenced folks or I guess the more serious
offenders. But that is where they would be. They would not be
mixed in with the juveniles, because they wouldn't be
considered juveniles.
Ms. Norton. Well, I suppose that is no different than if we
had a DA, they would have to be held somewhere.
Mr. Spagnoletti. That is correct.
Ms. Norton. Finally, do you have anything to say, Mr.
Spagnoletti, about the quality of the U.S. Attorney's Office
and whether we would get that same quality of attorney if we in
fact had a local DA?
Mr. Spagnoletti. I appreciate your asking that question,
because I do want to put on the record that everything I have
said about my support for the locally elected DA is not meant
to demean or suggest in any way that the U.S. Attorney's Office
is not doing a fine job with local offenses. Because I really
believe that they are. Having seen local prosecution across the
country in lots of different courthouses, I actually think they
are among the best in the country in terms of handling local
prosecution.
That being said, I have no reason to doubt that with an
orderly transition and properly funded, that same level of work
couldn't be done by a local DA or Attorney General, whatever it
turns out to be. I had the pleasure of interviewing and hiring
tons of folks at the Attorney General's Office who wanted to
come to the District and work at the local AG's office on the
smaller matters, juvenile delinquency cases and folks who I
think could have done and will do just as fine a job as folks
we might hire from the U.S. Attorney's Office.
I would be remiss if I didn't put on the record that at
least one of the issues that is at play here is that the U.S.
Attorney for the District of Columbia has enjoyed a feeder
system through the local offenses, and that is that people come
to that office oftentimes because they want to be in the U.S.
Attorney's Office, but they want to do trial work.
You don't get a lot of trial work on the Federal side, you
get a lot of trial work on the Superior Court side. It is a
rotation system and you go there and they put you in appellate
for a little while and then they put you in misdemeanors for a
while, then felones and grand jury and they move you on. So
that by the time you get to the criminal section, the Federal
District Court side, you have a number of years and experience
under your belt, different than any other U.S. Attorney's
Office in the country, where they hire you and you immediately
start working on Federal offenses.
So that is part of what exists in our system. I am not
saying that is a good or a bad thing. I am just saying that he
has enjoyed, he the U.S. Attorney or she the U.S. Attorney, has
enjoyed that feeder system. But basically, in my opinion, using
local offenses as training grounds for what the U.S. Attorney
was meant to do, which is prosecute Federal crime.
So moving those functions to a local D.A. or a local U.S.
Attorney makes them the prime job. It makes that as the be all
and end all, to do that and to hire people who didn't come to
do something else, but to prosecute local offenses, career
folks who want to do homicides and sex offenses and family
violence and quality of life crimes. So you may get a different
dynamic, but I am confident, equally capable folks who want to
be there, who can do qualify work for the District of Columbia.
Ms. Norton. Thank you very much. I thank both of you,
because I think it has edified the record. And thank you, Mr.
Chairman.
Mr. Davis of Illinois. Thank you very much, Ms. Norton.
Let me just ask you, Mr. Boyd, in conducting your research,
did you uncover any degree of interaction among the different
relevant agencies of Federal or local government? In other
words, the interaction between and cooperation of the U.S.
Attorney's Office, District of Columbia, District Office of the
Attorney General, other local D.C. entities?
Mr. Boyd. I am sorry, Mr. Chairman, I didn't quite
understand the question.
Mr. Davis of Illinois. The interaction between the
different levels of government, local and Federal, the spirit
of cooperation that may exist between D.C. officials and
Federal officials.
Mr. Boyd. We really didn't look closely at that, but I am
aware that there is a criminal justice coordinating committee
where all these officials are members, the U.S. Attorney serves
as a member of that commission as well as the Mayor, the
Attorney General. So there is that kind of cooperation, at
least there is that vehicle. But we didn't quite look closely
at that. We will be happy to look into it.
Mr. Davis of Illinois. Thank you.
Mr. Marchant, do you have any additional questions?
Mr. Marchant. No, thank you, Mr. Chairman.
Mr. Davis of Illinois. Gentlemen, thank you very much. We
appreciate your being with us and this hearing is adjourned.
[Whereupon, at 11:45 a.m., the subcommittee was adjourned.]