[Senate Report 110-51]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 113
110th Congress                                                   Report
                                 SENATE
 1st Session                                                     110-51

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



 
   PROVIDING FOR LOAN REPAYMENT FOR PROSECUTORS AND PUBLIC DEFENDERS

                                _______
                                

                 April 10, 2007.--Ordered to be printed

                                _______
                                

 Mr. Leahy, Chairman of the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 442]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 442), to provide for loan repayment for prosecutors 
and public defenders, having considered the same, reports 
favorably thereon with amendments and recommends that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Need for S. 442......................................1
 II. Legislative History..............................................4
III. Vote by the Committee............................................4
 IV. Section-by-Section Analysis......................................5
  V. Cost Estimate....................................................8
 VI. Regulatory Impact Statement......................................9
VII. Changes in Existing Law..........................................9
VIII.Additional Views................................................13


                     I. Purpose and Need for S. 442

    For our criminal justice system to function effectively, we 
need a sufficient number of dedicated and competent attorneys 
working in prosecutor and public defender offices. However, 
prosecutor and public defender offices are having serious 
difficulties recruiting and retaining qualified attorneys. The 
John R. Justice Prosecutors and Defenders Incentive Act creates 
a targeted student loan repayment assistance program that will 
bolster the ranks of attorneys in the criminal justice system, 
enhancing the quality of that system and the public's 
confidence in it.
    According to a National Survey of Prosecutors conducted by 
the Bureau of Justice Statistics, 24 percent of state and local 
prosecutor offices reported problems in 2005 recruiting new 
attorneys, and 35 percent reported problems retaining 
attorneys. This problem is particularly severe in large 
prosecutor offices--over 60 percent of prosecutor offices that 
serve populations of 250,000 or more reported problems with 
attorney retention.\1\
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    \1\ Prosecutors in State Courts, 2005, NCJ 213799, 3 (U.S. Dep't of 
Just. July 2006).
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    The same is true for public defender offices. State and 
local governments are obligated to provide indigent defense 
services in order to satisfy criminal defendants' 
constitutional right to counsel. But a survey administered by 
Equal Justice Works and the National Legal Aid & Defender 
Association in 2002 found that over 60 percent of public 
interest law employers, including state and local public 
defender offices, reported difficulty in attorney recruitment 
and retention.\2\ As an example of the strain that public 
defender offices are under, several days before the Committee 
on the Judiciary considered S. 442, the Associated Press 
reported that the public defender system in the state of 
Missouri had grown so overloaded that that the state commission 
that oversees it was considering whether to stop accepting new 
clients.\3\
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    \2\ Mary Mulvenon, Equal Justice Works, Financing the Future: Equal 
Justice Works 2004 Report on Law School Loan Repayment Assistance and 
Public Interest Scholarship Programs, at 16 (Susan Wampler, ed., 2004).
    \3\ Jim Salter, Missouri Public Defender System May Stop Accepting 
New Clients, The Associated Press State & Local Wire, Feb. 26, 2007.
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    When prosecutor and public defender offices cannot attract 
new lawyers or keep experienced ones, their ability to protect 
the public is compromised. Such offices may find themselves 
unable to take on new cases due to staff shortages, and 
existing staff may be forced to handle unmanageable workloads. 
Cases may suffer from lengthy and unnecessary delays, and some 
cases may be mishandled by inexperienced or overworked 
attorneys. As a result, innocent people may sit in jail, and 
criminals may go free.
    Large student debt is a factor that deters many law school 
graduates from pursuing public service careers. In 2005, the 
average annual tuition was $28,900 for private law schools, 
$22,987 for nonresident students at public law schools, and 
$13,145 for resident students at public law schools.\4\ Over 80 
percent of law students borrow funds to finance their legal 
education, and, according to the American Bar Association, the 
average cumulative educational debt for law school graduates in 
the class of 2005 was $78,763 for private school graduates and 
$51,056 for public school graduates.\5\ Two-thirds of law 
students also carry additional unpaid debt from their 
undergraduate studies.\6\ In light of these statistics, it is 
not surprising that 66 percent of respondents in a recent 
national survey of law students stated that law school debt 
prevented them from even considering a public interest or 
government job.\7\
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    \4\ American Bar Association, Legal Education Statistics, available 
at http://www.abanet.org/legaled/statistics/charts/tuition.pdf.
    \5\ American Bar Association, Legal Education Statistics, available 
at http://www.abanet.org/legaled/statistics/charts/averageborrowed.pdf.
    \6\ National Center for Education Statistics, Student Financing of 
Graduate and First-Professional Education, 1999-2000, NCES 2002-166 at 
103 (U.S. Dep't of Ed. 2002), available at http://www.nces.ed.gov/
pubs2002/2002166.pdf.
    \7\ Equal Justice Works, National Association for Law Placement, 
and Partnership for Public Service, From Paper Chase to Money Chase: 
Law School Debt Diverts the Road to Public Service, 19 (2002) 
(surveying 1,622 students from 117 law schools).
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    Many law students graduate with a deep commitment to 
pursuing a career in public service. But many law graduates who 
initially accept public service jobs leave after a few years 
after finding that they cannot pay off their student loan debts 
as well as pay all their other living expenses on a prosecutor 
or public defender salary. According to the National 
Association for Law Placement (NALP), the median entry-level 
salary for public defenders is $43,000, increasing to $65,500 
for defenders with 11 to 15 years experience. The salaries for 
state prosecuting attorneys are similar, starting at 
approximately $46,000 and progressing to approximately $68,000 
for those with 11 to 15 years experience.\8\ By comparison, 
NALP reported that the median starting salary for private law 
firms in 2005 was $100,000.\9\
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    \8\ National Association for Law Placement, 2006 Public Sector and 
Public Interest Attorney Salary Report, press release available at 
http://www.nalp.org/press/details.php?id=63.
    \9\ National Association for Law Placement, 2005 Associate Salary 
Survey, press release available at http://www.nalp.org/press/
details.php?id=56.
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    The John R. Justice Prosecutors and Defenders Incentive Act 
of 2007 seeks to help alleviate some of the problems with 
attorney recruitment and retention that our criminal justice 
system faces. The bill is named after the late John Justice, 
former solicitor for the Sixth Judicial Circuit in South 
Carolina and president of the National District Attorneys 
Association, who was a strong supporter of student loan 
repayment assistance programs for public sector attorneys.
    The legislation would establish, within the Department of 
Justice, a program of student loan repayment assistance for 
borrowers who agree to remain employed for at least three years 
as state or local criminal prosecutors, or as state, local, or 
federal public defenders in criminal cases. Borrowers could 
enter into another agreement, after the required three-year 
minimum period, for an additional period of service. The bill 
would provide repayment assistance for student loans made, 
insured, or guaranteed under the Higher Education Act of 1965, 
and would authorize the Attorney General to make direct 
payments of up to $10,000 per year on behalf of a prosecutor or 
defender borrower to the holder of the loan. The maximum 
aggregate value of payments made on behalf of a borrower by the 
Department of Justice would be limited to $60,000.
    In addition to covering those who agree to serve in state 
and local prosecutor and defender offices, the Act makes 
federal public defenders eligible for loan repayment 
assistance, as well. In this way, the bill complements loan 
relief programs that are currently available for federal 
prosecutors.
    The bill is modeled on existing loan repayment programs 
that cover federal executive branch employees and the 
Department of Justice. Federal law currently permits federal 
executive branch agencies to repay an employee's student loans, 
up to $10,000 in a year and up to a lifetime maximum of 
$60,000, if the employee agrees to remain with the agency for 
at least three years. According to the Office of Personnel 
Management, during Fiscal Year 2005 there were 479 lawyers 
working in federal agencies who received loan repayments under 
this program, and federal agencies reported that the program 
has been beneficial in recruiting and retaining attorneys.\10\ 
Also, the Department of Justice operates an attorney-specific 
student loan repayment program, which provided repayments to a 
total of 182 attorneys in Fiscal Year 2006.
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    \10\ Federal Student Loan Repayment Program FY 2005: Report to the 
Congress (Office of Personnel Management, May 2006) at 6, available at 
https://www.opm.gov/oca/pay/studentloan/html/fy05Report.pdf.
---------------------------------------------------------------------------
    The public interest is harmed when communities face a 
shortage of attorneys who can effectively prosecute cases and 
provide criminal defendants with their constitutional right to 
counsel. Sadly, these situations occur all too frequently. The 
John R. Justice Prosecutors and DefendersIncentive Act will 
strengthen our criminal justice system by bolstering the ranks of 
qualified and experienced attorneys who serve in that system.

                        II. Legislative History

    In the 108th Congress, on May 21, 2003, Senator Durbin 
introduced the Prosecutors and Defenders Incentive Act of 2003 
(S. 1091). The bill was referred to the Committee on Health, 
Education, Labor, and Pensions, but was not considered by that 
Committee. In the 109th Congress, Senator Durbin introduced the 
Prosecutors and Defenders Incentive Act of 2005 (S. 2039) on 
November 17, 2005. The bill was cosponsored by 19 Senators and 
reported favorably by the Committee on the Judiciary by voice 
vote on May 25, 2006. The bill was placed on Senate legislative 
calendar but did not receive Senate consideration.
    On January 31, 2007, Senator Durbin introduced the John R. 
Justice Prosecutors and Defenders Incentive Act of 2007. It was 
cosponsored by Senator Specter, Chairman Leahy, and Senators 
Smith, Kerry, and Collins. It now has 17 Senate cosponsors.
    On February 27, 2007, the Judiciary Committee held a 
hearing on the bill chaired by Senator Durbin. The hearing was 
titled ``Strengthening Our Criminal Justice System: The John R. 
Justice Prosecutors and Defenders Incentive Act of 2007.'' The 
witnesses at the hearing were Paul A. Logli, State's Attorney 
for Winnebago County, Illinois, and chairman of the board of 
the National District Attorneys Association; George B. 
Shepherd, Professor of Law at Emory University School of Law; 
and Jessica A. Bergeman, Assistant State's Attorney, Cook 
County State's Attorney's Office, Cook County, Illinois. 
Another listed witness, Michael P. Judge, the Chief Public 
Defender of Los Angeles County, was unable to attend the 
hearing due to an injury.

                       III. Vote by the Committee

    The Senate Committee on the Judiciary, with a quorum 
present on March 1, 2007, considered S. 442. The Committee 
adopted five amendments by voice vote, and then approved the 
bill, as amended, by voice vote.
    The following amendments were adopted by the Committee:
     An amendment offered by Senator Sessions that 
revised the definitions of ``prosecutor'' and ``public 
defender'' in the bill. As introduced, the bill's definition of 
``public defender'' could have been construed to permit loan 
repayments to attorneys who work in non-profit defender 
organizations that provide indigent defense services under 
contract with a state or local government, but who do not 
actually perform any indigent defense work. This amendment 
clarified that repayment benefits will be made available to 
full-time employees of non-profit defender organizations who 
devote substantially all of their full-time employment to 
providing legal representation to indigent persons in criminal 
cases. The amendment also makes clear that prosecutors and 
public defenders who engage in supervision, education or 
training of other prosecutors or public defenders would not be 
excluded from eligibility under the bill because of such work.
     An amendment offered by Senator Durbin, which 
clarified that the term ``criminal cases'' in the bill includes 
juvenile delinquency cases.
     An amendment offered by Senator Durbin, which 
provided that the Attorney General shall determine a fair 
allocation of program funds among prosecutors and defenders, 
and among employing entities nationwide.
     An amendment offered by Senator Hatch that 
provided that the Government Accountability Office shall study 
and report to the Congress on the impact of law school 
accreditation requirements and other factors on law school 
costs and access, including the impact on racial and ethnic 
minorities.
     An amendment offered by Senator Cardin that 
provided that the Attorney General shall provide repayment 
benefits under the program giving priority to borrowers who 
have the least ability to repay their loans.

                    IV. Section-by-Section Analysis

    The John R. Justice Prosecutors and Defenders Incentive Act 
of 2007, as amended, now provides as follows:
    Section 1 contains the short title of the John R. Justice 
Prosecutors and Defenders Incentive Act of 2007.
    Section 2 amends Title I of the Omnibus Crime Control and 
Safe Streets Act of 1968 (42 U.S.C. 3711 et seq.) by adding a 
new section 3111, authorizing grants for student loan repayment 
assistance for prosecutors and public defenders. References 
below are to subsections (a) through (i) of this new section 
3111.
    Subsection (a) states that the purpose of this section is 
to encourage qualified individuals to enter and continue 
employment as prosecutors and public defenders.
    Subsection (b), as amended, defines ``prosecutor'' and 
``public defender'' to include full-time employees of state or 
local agencies who are continually licensed to practice law and 
who prosecute criminal cases or provide legal representation to 
indigent persons in criminal or juvenile delinquency cases. The 
definitions, as amended by the Sessions amendment, make clear 
that an employee can engage in supervision, education or 
training of other prosecutors or public defenders while still 
falling within the definitions of ``prosecutor'' or ``public 
defender.''
    The definition of ``public defender,'' as modified by the 
Sessions amendment, includes full-time employees of non-profit 
organizations operating under a contract with a state or local 
government who devote substantially all of their full-time 
employment to providing indigent criminal defense services. 
Such individuals are included in the definition because 
numerous communities across the nation, including New York 
City, Philadelphia, Seattle, Detroit, and Louisville, contract 
out the bulk of their indigent defense services to non-profit 
organizations, having determined it to be in the public 
interest to do so.
    The definition of ``public defender'' also includes federal 
public defenders.
    This subsection defines ``student loan'' to include loans 
made under the Higher Education Act of 1965. 20 U.S.C. 1071 et 
seq.
    Subsection (c) authorizes the Attorney General to establish 
a program whereby the Department of Justice shall make direct 
payments on behalf of an individual prosecutor or public 
defender to the holder of the individual's loan, provided the 
individual is not in default on the loan, and subject to the 
provisions in the rest of the Act.
    Subsection (d) discusses the terms of a written agreement 
that an individual must enter into in order to be eligible to 
receive repayment benefits. Among the terms of such an 
agreement, the individual must commit to remain employed as a 
prosecutor or public defender for not less than three years 
(agreements with a required period of service of more than 
three years are permissible if mutually agreed upon). The 
individual must also agree that if he or she is involuntarily 
separated from employment on account of misconduct or 
voluntarily separates before the end of the period specified in 
the agreement, the individual will repay the Attorney General 
for any benefits already received pursuant to the agreement. 
Student loan repayments under this section are also limited to 
$10,000 for any individual in any calendar year, and an 
aggregate total of $60,000 for any individual.
    It is the intent of this subsection for each written 
agreement to be between the individual and the Department of 
Justice. However, because the Department of Justice must ensure 
that each borrower will ``remain employed'' as a prosecutor or 
public defender for at least three years in order to provide 
loan repayment benefits, there is a practical need for the 
Department also to coordinate with employing prosecutor and 
public defender offices while making and monitoring such 
written agreements. For example, it will be important for the 
Department of Justice to know which prosecutor or public 
defender office employs an individual before the Department 
provides repayment benefits on the individual's behalf. 
Similarly, because the Act does not require an individual to 
remain employed with the same prosecutor or public defender 
office throughout the duration of the individual's agreement, 
it will be important for the Department to know whether an 
individual has left one employer for another.
    Subsection (e) provides that on the completion of an 
individual's first required period of service under an 
agreement with the Attorney General, the individual and the 
Attorney General may enter into an additional agreement. Such 
agreements may be for less or for more than three years, 
although loan repayments under an additional agreement are 
still limited to a maximum of $10,000 per individual per year, 
and a total lifetime maximum of $60,000 per individual.
    Subsection (f), as amended by the Cardin and Durbin 
amendments, provides the Attorney General with instructions on 
the awarding of loan repayment benefits under the program. As 
originally introduced, this subsection stated that the Attorney 
General would provide repaymentbenefits on a first-come, first-
served basis, subject to the availability of appropriations. The Cardin 
amendment replaced this first-come, first-served provision with a 
provision stating instead that the Attorney General shall prioritize 
those who have the least ability to repay their student loan debt when 
determining to whom the Department should provide loan repayment 
benefits. The Durbin amendment added language providing that the 
Attorney General shall make repayments subject to the Attorney 
General's determination of a fair allocation of loan repayment benefits 
among prosecutors and defenders, and among employing entities 
nationwide.
    In considering the ability of an individual to repay their 
student loan debt, it is the intent of this subsection, as 
amended, that the Attorney General should consider such factors 
as the total student loan debt held by the individual, the 
individual's participation in other loan forgiveness programs 
and the value of any payments made through those programs, the 
salary of the individual, other non-salary assets held by the 
individual, the cost of living in the individual's area of 
employment and area of residence, and additional extraordinary 
and justifiable expenses that the individual may be required to 
pay, such as expenses for health needs or family care.
    The Durbin amendment to this subsection provided that the 
Attorney General shall determine a fair allocation of loan 
repayment benefits among prosecutors and defenders, and among 
employing entities nationwide. The intention of this amendment 
was to ensure that the benefits of this program do not become 
excessively concentrated either among prosecutors or public 
defenders, or among certain individual prosecutor or defender 
employers. The Attorney General should devise a fair allocation 
system via the rulemaking process. Since the Attorney General 
will already need to coordinate with employing prosecutor and 
public defender offices when reaching agreements with 
individuals, it will be feasible for the Attorney General to 
follow this fair allocation system when deciding to whom it 
will administer loan repayment benefits.
    This subsection also states that the Attorney General shall 
give priority in any fiscal year to a borrower who received 
repayment benefits during the previous fiscal year and who has 
completed less than the minimum three years of required 
service. Under this subsection, in light of the fact that 
repayment benefits pursuant to this program are subject to the 
availability of appropriations, the Attorney General's 
obligation in any fiscal year is first to provide repayment 
benefits to those individuals who have already reached initial 
written agreements with the Department of Justice and have 
completed less than three years of required service. After all 
such individuals have received benefits pursuant to their 
agreements, the Attorney General may use remaining 
appropriations to provide benefits to other individuals, 
including those who have formed initial agreements for more 
than three years of service, those who have formed additional 
agreements, and those who seek to form new initial agreements.
    Subsection (g) authorizes the Attorney General to issue 
such regulations as may be necessary to carry out the 
provisions of this section.
    Subsection (h) authorizes $25 million in appropriations to 
carry out this section in Fiscal Year 2008 and such sums as may 
be necessary for each succeeding fiscal year.
    Subsection (i) was added by the Hatch amendment and 
provides that, not later than one year following enactment, the 
Government Accountability Office shall provide the Congress 
with a report assessing the impact of law school accreditation 
requirements and other factors on law school tuition costs and 
access by minorities to the legal profession.

                            V. Cost Estimate


S. 442--John R. Justice Prosecutors and Defenders Incentive Act of 2007

    Summary: S. 442 would authorize the appropriation of $25 
million for fiscal year 2008 and such sums as may be necessary 
for each subsequent year for the Attorney General to establish 
a program to repay student loans for certain prosecutors and 
public defenders who agree to serve for at least three years in 
those positions. In addition, S. 442 would require the 
Government Accountability Office (GAO) to conduct a study on 
the effects of accreditation requirements on law school costs 
and accessibility. Assuming appropriation of the necessary 
amounts, CBO estimates that implementing the bill would cost 
about $90 million over the 2008-2012 period. Enacting S. 442 
would not affect direct spending or revenues.
    S. 442 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 442 is shown in the following table. For 
this estimate, CBO assumes that the authorized amount of $25 
million will be appropriated for 2008 and that similar amounts, 
adjusted for anticipated inflation, will be appropriated for 
each subsequent year. CBO expects that the GAO report would 
cost less than $500,000 over the next year, assuming the 
availability of appropriated funds. For this estimate, CBO 
assumes that outlays will follow the historical rate of 
spending for similar programs. The cost of this legislation 
falls within budget function 750 (administration of justice).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2008     2009     2010     2011     2012
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated authorization level......................................       25       26       27       27       28
Estimated outlays..................................................        6       13       19       23       27
----------------------------------------------------------------------------------------------------------------

    Intergovernmental and private sector impact: S. 442 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Estimate prepared by: Federal costs: Mark Grabowicz; Impact 
on state, local, and tribal governments: Melissa Merrell; 
Impact on the private sector: Paige Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    VI. Regulatory Impact Statement

    The passage of S. 442 will require the Department of 
Justice to promulgate regulations governing the administration 
of the loan repayment assistance program.

                      VII. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 442, as reported, are shown as follows (new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

The Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3711 
                                et seq.)


                                TITLE I


      PART JJ--LOAN REPAYMENT FOR PROSECUTORS AND PUBLIC DEFENDERS

SEC. 3111. GRANT AUTHORIZATION.

    (a) Purpose.--The purpose of this section is to encourage 
qualified individuals to enter and continue employment as 
prosecutors and public defenders.
    (b) Definitions.--In this section:
          (1) Prosecutor.--The term `prosecutor' means a full-
        time employee of a State or local agency who--
                  (A) is continually licensed to practice law; 
                and
                  (B) prosecutes criminal or juvenile 
                delinquency cases at the State or local level 
                (including supervision, education, or training 
                of other persons prosecuting such cases).
          (2) Public Defender.--The term `public defender' 
        means an attorney who--
                  (A) is continually licensed to practice law; 
                and
                  (B) is--
                          (i) a full-time employee of a State 
                        or local agency who provides legal 
                        representation to indigent persons in 
                        criminal or juvenile delinquency cases 
                        (including supervision, education, or 
                        training of other persons providing 
                        such representation);
                          (ii) a full-time employee of a non-
                        profit organization operating under a 
                        contract with a State or unit of local 
                        government, who devotes substantially 
                        all of his or her full-time employment 
                        to providing legal representation to 
                        indigent persons in criminal or 
                        juvenile delinquency cases, (including 
                        supervision, education, or training of 
                        other persons providing such 
                        representation); or
                          (iii) employed as a full-time Federal 
                        defender attorney in a defender 
                        organization established pursuant to 
                        subsection (g) of section 3006A of 
                        title 18, United States Code, that 
                        provides legal representation to 
                        indigent persons in criminal or 
                        juvenile delinquency cases.
          (3) Student Loan.--The term `student loan' means--
                  (A) a loan made, insured, or guaranteed under 
                part B of title IV of the Higher Education Act 
                of 1965 (20 U.S.C. 1071 et seq.);
                  (B) a loan made under part D or E of title IV 
                of the Higher Education Act of 1965 (20 U.S.C. 
                1087a et seq. and 1087aa et seq.); and
                  (C) a loan made under section 428C or 455(g) 
                of the Higher Education Act of 1965 (20 U.S.C. 
                1078-3 and 1087e(g)) to the extent that such 
                loan was used to repay a Federal Direct 
                Stafford Loan, a Federal Direct Unsubsidized 
                Stafford Loan, or a loan made under section 428 
                or 428H of such Act.
    (c) Program Authorized.--The Attorney General shall 
establish a program by which the Department of Justice shall 
assume the obligation to repay a student loan, by direct 
payments on behalf of a borrower to the holder of such loan, in 
accordance with subsection (d), for any borrower who--
          (1) is employed as a prosecutor or public defender; 
        and
          (2) is not in default on a loan for which the 
        borrower seeks forgiveness.
    (d) Terms of Agreement.--
          (1) In General.--To be eligible to receive repayment 
        benefits under subsection (c), a borrower shall enter 
        into a written agreement that specifies that--
                  (A) the borrower will remain employed as a 
                prosecutor or public defender for a required 
                period of service of not less than 3 years, 
                unless involuntarily separated from that 
                employment;
                  (B) if the borrower is involuntarily 
                separated from employment on account of 
                misconduct, or voluntarily separates from 
                employment, before the end of the period 
                specified in the agreement, the borrower will 
                repay the Attorney General the amount of any 
                benefits received by such employee under this 
                section;
                  (C) if the borrower is required to repay an 
                amount to the Attorney General under 
                subparagraph (B) and fails to repay such 
                amount, a sum equal to that amount shall be 
                recoverable by the Federal Government from the 
                employee (or such employee's estate, if 
                applicable) by such methods as are provided by 
                law for the recovery of amounts owed to the 
                Federal Government;
                  (D) the Attorney General may waive, in whole 
                or in part, a right of recovery under this 
                subsection if it is shown that recovery would 
                be against equity and good conscience or 
                against the public interest; and
                  (E) the Attorney General shall make student 
                loan payments under this section for the period 
                of the agreement, subject to the availability 
                of appropriations.
          (2) Repayments.--
                  (A) In general.--Any amount repaid by, or 
                recovered from, an individual or the estate of 
                an individual under this subsection shall be 
                credited to the appropriation account from 
                which the amount involved was originally paid.
                  (B) Merger.--Any amount credited under 
                subparagraph (A) shall be merged with other 
                sums in such account and shall be available for 
                the same purposes and period, and subject to 
                the same limitations, if any, as the sums with 
                which the amount was merged.
          (3) Limitations.--
                  (A) Student loan payment amount.--Student 
                loan repayments made by the Attorney General 
                under this section shall be made subject to 
                such terms, limitations, or conditions as may 
                be mutually agreed upon by the borrower and the 
                Attorney General in an agreement under 
                paragraph (1), except that the amount paid by 
                the Attorney General under this section shall 
                not exceed--
                          (i) $10,000 for any borrower in any 
                        calendar year; or
                          (ii) an aggregate total of $60,000 in 
                        the case of any borrower.
                  (B) Beginning of payments.--Nothing in this 
                section shall authorize the Attorney General to 
                pay any amount to reimburse a borrower for any 
                repayments made by such borrower prior to the 
                date on which the Attorney General entered into 
                an agreement with the borrower under this 
                subsection.
    (e) Additional Agreements.--
          (1) In general.--On completion of the required period 
        of service under an agreement under subsection (d), the 
        borrower and the Attorney General may, subject to 
        paragraph (2), enter into an additional agreement in 
        accordance with subsection (d).
          (2) Term.--An agreement entered into under paragraph 
        (1) may require the borrower to remain employed as a 
        prosecutor or public defender for less than 3 years.
    (f) Award Basis; Priority.--
          (1) Award basis.--Subject to paragraph (2), the 
        Attorney General shall provide repayment benefits under 
        this section--
                  (A) giving priority to borrowers who have the 
                least ability to repay their loans, except that 
                the Attorney General shall determine a fair 
                allocation of repayment benefits among 
                prosecutors and public defenders, and among 
                employing entities nationwide; and
                  (B) subject to the availability of 
                appropriations.
          (2) Priority.--The Attorney General shall give 
        priority in providing repayment benefits under this 
        section in any fiscal year to a borrower who--
                  (A) received repayment benefits under this 
                section during the preceding fiscal year; and
                  (B) has completed less than 3 years of the 
                first required period of service specified for 
                the borrower in an agreement entered into under 
                subsection (d).
    (g) Regulations.--The Attorney General is authorized to 
issue such regulations as may be necessary to carry out the 
provisions of this section.
    (h) Study.--Not later than 1 year after the date of 
enactment of this section, the Government Accountability Office 
shall study and report to Congress on the impact of law school 
accreditation requirements and other factors on law school 
costs and access, including the impact of such requirements on 
racial and ethnic minorities.
    (i) Authorization of Appropriations.--There are authorized 
to be appropriated to carry out this section $25,000,000 for 
fiscal year 2008 and such sums as may be necessary for each 
succeeding fiscal year.

                         VIII. ADDITIONAL VIEWS

                              ----------                              


               ADDITIONAL VIEWS OF SENATORS KYL AND HATCH

    While the bill reported by this Committee will help reduce 
the burden of the heavy law-school student loans borne by many 
young prosecutors and public defenders, this legislation treats 
only the symptoms, not the source, of this problem. The source 
of the problem--the cause of the excessive cost of becoming 
eligible to practice law in the United States today--was 
identified in testimony before this Committee by George B. 
Shepard, an associate professor of law at Emory University 
School of Law. In his testimony on February 27, Professor 
Shepard endorsed the John R. Justice Act, but went on to note 
that:

we need to recognize that passage of the Act is necessary 
partly because of the [law-school] accreditation system; 
without the accreditation system, many more students would 
graduate from law school with no loans or much smaller ones, so 
that they would not need to use the benefits that the Act 
provides. With the accreditation system, the Act will, in 
effect, transfer much taxpayers' money from the federal 
government to overpriced law schools.

    Professor Shepard went on to describe exactly how the 
American Bar Association's law-school accreditation rules 
substantially and unnecessarily increase the cost of becoming 
eligible to practice law:

    The ABA's accreditation requirements increase the cost of 
becoming a lawyer in two ways. First, they increase law school 
tuition. They do this by imposing many costs on law schools. 
For example, accreditation standards effectively raise faculty 
salaries; limit faculty teaching loads; require high numbers of 
full-time faculty rather than cheaper part-time adjuncts; and 
require expensive physical facilities and library collections. 
The requirements probably cause law schools' costs to more than 
double, increasing them by more than $12,000 per year, with 
many schools then passing the increased costs along to students 
by raising tuition. The total increase for the three years of 
law school is more than $36,000.
    The impact of the increased costs from accreditation can be 
seen by comparing tuition rates at accredited schools and 
unaccredited schools. Accredited schools normally charge more 
than $25,000 per year. Unaccredited schools usually charge 
approximately half that amount. One example of the many 
expensive accreditation requirements is the ABA's requirement 
that an accredited school have a large library and extensive 
library collection. Insiders confirm that the ABA requires a 
minimum expenditure on library operations and acquisitions of 
approximately $1 million per year. This is more than $4,000 per 
student in an averaged-sized school.
    The second way that the ABA requirements increase students' 
cost of entering the legal profession is as follows. The ABA 
requires students to attend at least six years of expensive 
higher education: three years of college and three years of law 
school. Before the Great Depression, a young person could enter 
the legal profession as an apprentice directly after high 
school, without college or law school. Now, a person can become 
a lawyer only if she can afford to take six years off from work 
after high school and pay six years of tuition.
    The requirement of six years of education is expensive. The 
sum of the tuition payments and foregone income can easily 
exceed $300,000, or more. For example, a conservative estimate 
is that attending a private college and law school for six 
years would cost approximately $25,000 per year for a total of 
$150,000. In addition, let's assume conservatively that a 
student who could qualify for college and law school would have 
earned only $25,000 per year if the student had not attended 
college and law school. The amount of income that the student 
sacrifices for six years to become a lawyer is $150,000. The 
total is $300,000.

    In addition to the John R. Justice Act, there are two other 
means by which the problem of the excessive cost of becoming 
eligible to practice law in this country could be addressed. 
First, the states themselves could liberalize their law-school 
accreditation requirements. This would directly reduce the cost 
of becoming a lawyer in all cases, not just for prosecutors and 
public defenders. In his February 27 testimony, Professor 
Shepard recommended that:

the accreditation system's restrictions should be loosened. For 
example, law schools might be permitted to experiment with 
smaller libraries, cheaper practitioner faculty, and even 
shorter programs of two years rather than three, like business 
school. Or the requirements might be eliminated completely; 
students without a degree from an accredited law school would 
be able to practice law.
    Removing the flawed, artificial accreditation bottleneck 
would not in fact be a drastic change, and it would create many 
benefits but few harms. The current system's high-end qualities 
would continue, while a freer market for variety would quickly 
open up. To Rolls-Royce legal educations would be added Buicks, 
Saturns, and Fords. The new system would develop a wider range 
of talent, including lawyers at $60, $40, and even $25 an hour, 
as well as those at $300 and up. This would fit the true 
diversity of legal needs, from simple to complex. With cheaper 
education available to more people, some lawyers for the first 
time would be willing and able to work for far less than at 
present.
    The addition of many more lawyers would produce little 
additional legal malpractice or fraud, and the quality of legal 
services decline little, it at all. Private institutions would 
arise within the market for legal services to ensure that each 
legal matter was handled by lawyers with appropriate skills and 
sophistication. For example, large, expensive law firms would 
continue to handle complicated, high-stakes transactions and 
litigation. However, law companies that resembled H&R Block 
would open to offer less-expensive legal services for simple 
matters. Accounting and tax services are available not only for 
$300 per hour at the big accounting firms, but also for $25 per 
hour at H&R Block. The new law companies would monitor and 
guarantee the services of their lawyer-employees.
    Elimination of the accreditation requirement is a modest, 
safe proposal. It merely reestablishes the system that exists 
in other equally-critical professions, a system that worked 
well in law for more than a century before the Great 
Depression. Business and accounting provide comforting examples 
of professions without mandatory accreditation or qualifying 
exams. In both professions, people may provide full-quality 
basic services without attending an accredited school or 
passing an exam. Instead, people can choose preparation that is 
appropriate for their jobs. A person who seeks to manage a 
local McDonald's franchise or to prepare tax returns need not 
attend business school or become a CPA first. Yet there is no 
indication that the level of malpractice or fraud is higher in 
these fields than in law. Likewise, there is no indication that 
malpractice and fraud were any more frequent during the century 
before accreditation and the bar exam, when lawyers like 
Abraham Lincoln practiced. Lincoln never went to law school.

    Second, in response to those who have turned to Congress to 
address this problem, I would note that Congress already has 
acted. It acted in 1868, by enacting the Privileges and 
Immunities Clause of the Fourteenth Amendment. That Clause was 
understood at the time of the nation's founding ``to refer to 
those fundamental rights and liberties specifically enjoyed by 
English citizens and, more broadly, by all persons.'' Saenz v. 
Roe, 526 U.S. 489, 524 (Thomas, J., dissenting)--a meaning that 
carried over to the Fourteenth Amendment as well, see id. 526--
27. Legal scholars and civil-rights organizations such as the 
Institute for Justice have in the past presented compelling 
arguments that the fundamental rights and liberties protected 
by the Privileges and Immunities Clause include a right to 
pursue a career or profession. And that right is in clear 
tension with the apparently protectionist nature of the current 
accreditation regime. As Professor Shepard noted in his 
testimony:

    Strict accreditation requirements are a relatively recent 
phenomenon, having begun in the Great Depression. What seems 
normal now after 70 years was in fact a radical change from a 
much more open system that had functioned well for more than a 
century before then. Until the Great Depression, no state 
required an applicant to the bar to have attended any law 
school at all, much less an accredited one. Indeed, 41 states 
required no formal education whatsoever beyond high school; 32 
states did not even require a high school diploma. Similarly, 
bar exams were easy to pass; they had high pass rates.

           *       *       *       *       *       *       *

    During the Depression, state bar associations attempted to 
eliminate so-called ``overcrowding'' in the legal profession; 
they felt that too many new lawyers were competing with the 
existing ones for the dwindling amount of legal business. They 
attempted to reduce the number of new lawyers in two ways. 
First, they decreased bar pass rates. Second, they convinced 
courts and state legislatures to require that all lawyers 
graduate from ABA-accredited law schools.

    The protectionist nature of the current accreditation 
regime not only is at odds with the Privileges and Immunities 
Clause; it also has a disproportionate impact on the very 
minority groups that the Fourteenth Amendment was originally 
designed to protect. Several of the witnesses who testified 
before the Committee emphasized the negative effects that 
escalating tuition costs have on minority participation in the 
legal profession and on access to legal services in minority 
communities. Jessica Bergeman, an Assistant State's Attorney 
for Cook County, Illinois, stated:

    I truly believe that it is good for the communities of 
Chicago to see Assistant State's Attorneys of color. 
Unfortunately, it is often we who are most burdened with 
educational debt. People like me who are forced to leave the 
office because they cannot afford to stay cannot be categorized 
as just a personal career set-back, but rather it has the 
potential to further the divisions between the prosecutors and 
so many of the people they prosecute.

    Professor Shepard seconded this point in his testimony, 
noting that ``the system has excluded many from the legal 
profession, particularly the poor and minorities. It has raised 
the cost of legal services. And it has, in effect, denied legal 
services to whole segments of our society.''
    Simple legal planning plays an important role in 
individuals' efforts to provide for their families, start 
businesses, and plan for their economic futures. Lower and 
middle-income citizens' lack of access to legal services makes 
it more difficult for them to make the informed choices that 
will improve their lives. And existing law-school accreditation 
requirements play a significant role in driving up the cost of 
legal services. Recognizing the significance of these 
phenomena, the Committee adopted an amendment to this 
legislation that will require the Government Accountability 
Office to report to Congress on the impact that law-school 
accreditation requirements have on law-school tuition, 
including the effect that the elevated cost of legal services 
has on members of minority groups.
    The bill reported by this Committee addresses a real 
problem. It is a problem, however, that should also be 
addressed by other, more direct means.

                                                           Jon Kyl.
                                                    Orrin G. Hatch.

                                  
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