[DOCID: f:sr051.110]
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Calendar No. 113
110th Congress Report
SENATE
1st Session 110-51
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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.
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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:
<bullet> 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.
<bullet> An amendment offered by Senator Durbin, which
clarified that the term ``criminal cases'' in the bill includes
juvenile delinquency cases.
<bullet> 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.
<bullet> 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.
<bullet> 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).
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By fiscal year, in millions of dollars--
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2008 2009 2010 2011 2012
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated authorization level...................................... 25 26 27 27 28
Estimated outlays.................................................. 6 13 19 23 27
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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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