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46–886 PDF 2009

H.R. 1296, THE DISTRICT OF COLUMBIA DISTRICT

ATTORNEY ESTABLISHMENT ACT OF 2007

HEARING

BEFORE THE

SUBCOMMITTEE ON FEDERAL WORKFORCE,

POSTAL SERVICE, AND THE DISTRICT

OF COLUMBIA

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

ON

H.R. 1296

TO AMEND THE DISTRICT OF COLUMBIA HOME RULE ACT TO ESTABLISH THE OFFICE OF THE DISTRICT ATTORNEY FOR THE DISTRICT

OF COLUMBIA, HEADED BY A LOCALLY ELECTED AND INDEPENDENT

DISTRICT ATTORNEY, AND FOR OTHER PURPOSES

APRIL 24, 2008

Serial No. 110–116

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

HENRY A. WAXMAN, California, Chairman

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

BRIAN HIGGINS, New York

JOHN A. YARMUTH, Kentucky

BRUCE L. BRALEY, Iowa

ELEANOR HOLMES NORTON, District of

Columbia

BETTY MCCOLLUM, Minnesota

JIM COOPER, Tennessee

CHRIS VAN HOLLEN, Maryland

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

JOHN P. SARBANES, Maryland

PETER WELCH, Vermont

——— ———

TOM DAVIS, Virginia

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

VIRGINIA FOXX, North Carolina

BRIAN P. BILBRAY, California

BILL SALI, Idaho

JIM JORDAN, Ohio

PHIL SCHILIRO, Chief of Staff

PHIL BARNETT, Staff Director

EARLEY GREEN, Chief Clerk

LAWRENCE HALLORAN, Minority Staff Director

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL SERVICE, AND THE DISTRICT OF

COLUMBIA

DANNY K. DAVIS, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JOHN P. SARBANES, Maryland

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio, Chairman

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

KENNY MARCHANT, Texas

JOHN M. MCHUGH, NEW YORK

JOHN L. MICA, Florida

DARRELL E. ISSA, California

JIM JORDAN, Ohio

TANIA SHAND, Staff Director

(III)

C O N T E N T S

Page

Hearing held on April 24, 2008 .............................................................................. 1

Text of H.R. 1296 ..................................................................................................... 8

Statement of:

Boyd, Eugene, Analyst in Federalism and Economic Development Policy,

Government and Finance Division, Congressional Research Service;

and Robert J. Spagnoletti, partner, Schertler and Onorato, LLP ............. 20

Boyd, Eugene ............................................................................................. 20

Spagnoletti, Robert J. ............................................................................... 27

Letters, statements, etc., submitted for the record by:

Boyd, Eugene, Analyst in Federalism and Economic Development Policy,

Government and Finance Division, Congressional Research Service,

prepared statement of ................................................................................... 22

Davis, Hon. Danny K., a Representative in Congress from the State

of Illinois, prepared statement of ................................................................ 3

Spagnoletti, Robert J., partner, Schertler and Onorato, LLP, prepared

statement of ................................................................................................... 29

(1)

H.R. 1296, THE DISTRICT OF COLUMBIA DISTRICT ATTORNEY ESTABLISHMENT ACT OF

2007

THURSDAY, APRIL 24, 2008

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON FEDERAL WORKFORCE, POSTAL

SERVICE, AND THE DISTRICT OF COLUMBIA,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room

2247, Rayburn House Office Building, Hon. Danny K. Davis (chairman of the subcommittee) presiding.

Present: Representatives Davis of Illinois, Norton, Kucinich, and

Marchant.

Staff present: William Miles, professional staff member; Marcus

Williams, clerk; Howie Denis, minority senior professional staff

member; and Alex Cooper, minority professional staff member.

Mr. DAVIS OF ILLINOIS. The subcommittee will now come to

order.

Welcome, Ranking Member Marchant, members of the subcommittee, hearing witnesses and all those in attendance. Welcome

to the Federal Workforce, Postal Service, and the District of Columbia hearing entitled, ‘‘H.R. 1296, the District of Columbia District

Attorney Establishment Act of 2007.’’

The Chair, ranking member and subcommittee members will

each have 5 minutes to make opening statements, and all Members

will have 3 days to submit statements for the record. Hearing no

objection, so ordered.

I will begin with an opening statement. Good morning, Ranking

Member Marchant, subcommittee members and all of you present

in the audience today. I would like to welcome you to the subcommittee’s hearing on H.R. 1296, the District of Columbia District

Attorney Establishment Act of 2007. The legislation being discussed this morning proposes to create an elected and independent

Office of District Attorney in D.C., thereby placing the city on equal

footing with every other locality and jurisdiction in this Nation.

Currently, the District of Columbia is the only place in our country that has a Presidentially appointed Federal attorney who is responsible for prosecuting not only Federal crimes but local criminal

violations as well. This means that the U.S. Attorney for the District of Columbia must simultaneously perform the necessary responsibilities for both Federal and D.C. adult felony violations, a

task that is unmatched in any other courtroom around the Nation.

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Given the statutory requirements placed on the U.S. Attorney’s

Office for the District of Columbia, the District’s Office of the Attorney General, who acts as the city’s official legal authority, is therefore relegated to probing civil litigation that is directed by and

against the District government. To this end, the District’s Attorney General only prosecutes ordinances, regulations or penal statutes, where the maximum punishment is fine only or imprisonment

not exceeding 1 year.

In response to the peculiar arrangement of the District’s legal

system, on November 5, 2002, citizens of the District of Columbia

approved by an overwhelming 82 percent a valid referendum calling for the establishment of a locally elected District Attorney. The

city council of the District of Columbia then followed suit with the

approval of Bill 14–600, the establishment of an Office of the District Attorney for the District of Columbia Charter Amendment Act

of 2002, which sought to amend the D.C. Home Rule Act to permit

the citizens of the District to elect a local DA, whose office would

assume the obligation tied to prosecuting criminal and civil proceedings.

The legislation was never fully enacted due to a lack of congressional action, which brings us to today and the consideration of

H.R. 1296, the District of Columbia District Attorney Establishment Act of 2007. Representative Norton, who I commend for her

extensive work and diligence on this issue, introduced the measure

at hand on March 1, 2007. H.R. 1296 seeks to restore what the people of the District of Columbia deserve: a locally based, publicly accountable district attorney. This measure is the final step toward

removing the muzzle that Congress has put on D.C. residents and

in turn, gives them the right that is afforded to every other American citizen: the right to elect a local district attorney who answers

and is accountable to the community.

I thank you very much and look forward to hearing today’s witnesses, and would now yield to Ranking Member Marchant.

[The prepared statement of Hon. Danny K. Davis and the text

of H.R. 1296 follow:]

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Mr. MARCHANT. Thank you, Mr. Chairman. Thank you for holding this hearing.

I understand that H.R. 1296, introduced by Representative Norton, would amend the D.C. Home Rule Act to create a locally elected D.C. Attorney General. At the present time, in the District of

Columbia Home Rule Act, Congress leaves criminal and civil issues

that might otherwise be handled by a locally elected District Attorney in the hands of a Presidentially appointed U.S. Attorney. The

U.S. Attorney for the District of Columbia prosecutes both Federal

and D.C. Code violations.

Coordination of criminal justice activities in the District of Columbia is unique. There are over 30 law enforcement agencies with

a presence here. Some are city agencies, such as the Metropolitan

Police Department. Some are Federal, such as the Office of U.S. Attorney for the District of Columbia. Historically, the U.S. Attorney’s

Office has facilitated cooperation for police in areas adjacent to

Federal facilities.

Several years ago, the Government Accountability Office noted

that we must continually seek to improve communication and coordination among these agencies. So any change to the current governance should be carefully evaluated by Congress as to whether

it truly enhances communication and coordination among the different interest groups.

I appreciate the chance to discuss the issues today and look forward to the hearing. Thank you.

Mr. DAVIS OF ILLINOIS. Thank you very much, Mr. Marchant.

Delegate Norton.

Ms. NORTON. Thank you very much, Mr. Chairman, for this hearing and the first hearing held on this bill. I have over several sessions introduced this important bill, as part of my Free and Equal

D.C. series. I appreciate the fact that you have afforded us hearings on that series. Indeed, we are making great headway on that

process as I speak. The whole series is for the purpose of essentially perfecting the Home Rule process which Congress began in

1974, but leaves many vital functions here that I do not intend to

have remain here. I believe that Congress is inclined to move forward to transfer out of its jurisdiction business that is not its business, allowing Congress and the Federal Government to focus

where the people of the United States expect them to focus.

I think most Americans would be stunned to find out that the

local DA for the District of Columbia is the U.S. Attorney for the

District of Columbia. I think this hearing will be important in trying to unfold and unravel some of the issues attending such a

unique system. A justice system in any jurisdiction is always of

overriding importance. As it turns out, it is part of the jurisdiction

of this committee to assure that the justice system meets the highest standards, because most of it is in the hands of the Federal

Government.

Mr. Chairman, I am appreciate, very appreciative for your hearings on the Bureau of Prisons, because your hearings, simply by

doing oversight, you have already had a profound effect on that

part of our justice system, our prisons and the Bureau of Prisons.

The President just last week signed an important bill that relates

significantly to our justice system, increasing the number of supeVerDate 11-MAY-2000 15:50 Feb 17, 2009 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 C:\DOCS\46886.TXT KATIE PsN: KATIE
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rior court judges by 3 to 61. There was an unintended result from

a bill that assisted our court system in very important ways when

Congress created the family court division, with a fixed number of

judges dedicated exclusively to children and families as a part of

a bill that former Representative Tom DeLay and I wrote after we

found some issues affecting our children and the family court, all

of whose judges handled these cases.

This bill which the President has just signed and Mr. Chairman,

which started with processing through this committee, preserves

the number of judges at 58 who handle criminal and civil court

matters in the District of Columbia, do not intend the improvements in the family court. We have seen really immense improvements for families and children by having judges dedicated to family issues. We certainly didn’t mean, and I can tell you for sure that

Representative Delay did not mean to shortchange other important

criminal and civil processing matters. The point was to focus on

families, not to make other important criminal and civil matters

pay for the improvements. Interestingly, the money was always in

the budget for the full complement of judges, but it took this committee’s authorization to make that active.

The importance of this bill is perhaps best stated by the referendum that the people of the District of Columbia themselves held

with 82 percent voting for their own district attorney elected by

themselves. I think that referendum and the margin makes the

best statement about the importance that the residents of the District of Columbia, and I must say, residents everywhere, attach to

public safety and to direct control of the officer entrusted particularly with criminal prosecutions.

The D.C. Council, who responded immediately and enacted or

passed their own bill, my bill is essentially based on the referendum and on the D.C. Council bill. We want to correct this, to be

kind, anomaly in the Federal system. I want to note before I go further that the U.S. Attorney for the District of Columbia is not here,

and I want to know why. Because it goes to the question of accountability. It is not that he would not have come to testify, we

have had the U.S. Attorney before this committee regularly, because of our jurisdiction, our sole jurisdiction over the U.S. Attorney.

But Mr. Chairman, the U.S. Attorney for the District of Columbia cannot come because he is an acting U.S. Attorney. And he has

been in office a couple of years, but he is an acting U.S. Attorney,

because regrettably, I had to oppose his confirmation. He is left in

office and I do not oppose his being left in office, but I did not believe that he should have the benefit of confirmation for the U.S.

Senate and indicated that to Mr. Leahy, who offers me that courtesy before he goes forward.

The reason really goes to a matter, and I regard it as serious.

The U.S. Attorney for the District of Columbia is accountable to

people in the Justice Department. This U.S. Attorney appears to

me to be a competent man. He lives in the District. He is essentially a patronage appointment. He worked for a former Attorney

General. But he and I have worked together, he comes to our

neighborhoods.

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But we discovered that because of pressure from top officials in

the Justice Department of 2 years ago, he hired an assistant U.S.

Attorney who had been fired by the Judiciary Committee under the

then-Chairman Sensenbrenner. Sensenbrenner of course is still an

important member of the minority here, but was chairman of the

Judiciary Committee at the time, was fired for using the chairman’s name on a letter asking judges to reverse their decisions.

There are a number of ethical, not to mention separation of powers

violations involved there.

Apparently this lawyer sought to be re-hired by the U.S. Attorney for the northern District of Virginia. They simply refused,

based on these violations. But the U.S. Attorney here was put in

a position where essentially, I suppose, he would have had to either

resign or do what his superiors, who are not the residents of the

District of Columbia or any Federal official, said, and he was put

in quite an untenable position, he then did something that I

thought was good. He placed this person in the appellate division

because to place him in the trial division would be to place him in

the place where he sought to have effect in his letter to the judges.

These were judges of the Seventh Circuit.

So in order to try to reach an accommodation, I asked that person remain in the appellate division and not be put in the trial division, the seat of his concern that led to his violation. And when

this matter went all the way up the ladder to the Justice Department, their answer was, well, we reserve the right to place this

lawyer anywhere we please.

Therefore, this lawyer sits. He could not and I dare say would

not have been hired by any other U.S. Attorney’s Office. It goes directly to the matter of accountability. If a DA here were so pressured and it became public, by the way, this has been public, has

been covered in the Washington Post, then of course the people

could decide on the fitness of a district attorney who hired a person

under pressure.

The fact is, Mr. Chairman, that no one is accountable for criminal prosecutions in the District of Columbia. Those prosecutions

are at the discretion of the U.S. Attorney for the District of Columbia. No, he goes about his daily business, we are sure in a competent way. But when you consider the importance of criminal

prosecutions, particularly to big cities all of which have high rime

rates, you can perhaps understand the frustration of the people of

the District of Columbia in having nothing to say about the District

Attorney.

Mr. Chairman, the U.S. Attorney has death penalty jurisdiction.

The District of Columbia is a strong anti-death penalty jurisdiction.

Jurisdictions are used to living with, the anti-death penalty jurisdictions are used to living with the U.S. Attorneys who occasionally, because they have the right under Federal law, bring death

penalty prosecutions. There have been occasions which, with some

criticism, we have been able, I think, to correct whether the U.S.

Attorney actually made decisions about whether to prosecute local

crimes in Federal or district court, or Federal court, based on his

desire to use sentencing, the sentencing guidelines or other matters. We have seen the U.S. Attorney in recent years insist upon

trying to get the death penalty here in Superior Court. That is inVerDate 11-MAY-2000 15:50 Feb 17, 2009 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 C:\DOCS\46886.TXT KATIE PsN: KATIE
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teresting, because we have had Republican and Democratic U.S.

Attorneys, and generally, you earn what you can get here, decide

how to spend the people’s money.

But we had a whole series of attempts to use the death penalty

which were turned back almost inevitably by juries and also by

court decisions, and yet, they came again. I offer these examples

to you because I think a district attorney would have to consider

this matter. Obviously, if he were prosecuting crimes here, he could

not prosecute under the death penalty, not because we don’t have

the death penalty in local law.

But the point I am making is that the juries come from the District of Columbia, that the pattern in the District of Columbia is

so clear, that to continue to bring such prosecutions, leaving families waiting for resolution of these matters and spending what turn

out to be Federal taxpayers’ money suggests a lack of accountability, lack of understanding of the jurisdiction in which recent U.S.

Attorneys have had to operate.

I do not believe the death penalty matters have arisen under the

present U.S. Attorney, so I am not speaking of the present U.S. Attorney, but I am speaking of the last few U.S. Attorneys.

Mr. Chairman, there is no issue of greater importance to the citizens of most jurisdictions than having a say in the prosecution of

local crimes. That is why were are very grateful for your decision

to allow a hearing on this bill. We are very pleased to have both

witnesses. I want to note that Mr. Spagnoletti is a particularly valuable witness, because he has been both a U.S. Attorney, an assistant U.S. Attorney in charge of, or chief of one of the divisions of

the U.S. Attorney’s Office here, and he has been Attorney General

for the District of Columbia. I want to welcome Mr. Boyd and Mr.

Spagnoletti.

Mr. DAVIS OF ILLINOIS. Thank you very much, Ms. Norton.

We are going to go to our witnesses, and I am going to introduce

the witnesses and then swear them in.

Mr. Eugene Boyd serves as a research analyst for the Congressional Research Service. He is an expert in the field of federalism

and economic development policy, government and finance, and has

performed numerous studies and projects related to the intersection between Federal Government and the District of Columbia.

Welcome, Mr. Boyd.

Mr. Robert Spagnoletti is a senior partner at the law firm of

Schertler and Onorato, LLP. Prior to joining the firm, Mr.

Spagnoletti served as the first Attorney General for the District of

Columbia. As Attorney General, Mr. Spagnoletti represented the

District of Columbia in all of its diverse legal matters. Welcome,

Mr. Spagnoletti.

It is the tradition of this committee to swear in witnesses. If you

would stand and raise your right hands.

[Witnesses sworn.]

Mr. DAVIS OF ILLINOIS. The record will reflect that the witnesses

answered in the affirmative.

Gentlemen, we thank you very much, and Mr. Boyd, we will

begin with you. As you know, it is customary for 5 minutes to summarize. The lights will go on green 5 minutes, yellow 1 minute, red

time to stop. We will have questions at the end.

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Thank you very much.

STATEMENTS OF EUGENE BOYD, ANALYST IN FEDERALISM

AND ECONOMIC DEVELOPMENT POLICY, GOVERNMENT AND

FINANCE DIVISION, CONGRESSIONAL RESEARCH SERVICE;

AND ROBERT J. SPAGNOLETTI, PARTNER, SCHERTLER AND

ONORATO, LLP

STATEMENT OF EUGENE BOYD

Mr. BOYD. Thank you, Mr. Chairman, for the invitation to testify

before the subcommittee.

I am here today to provide a summary of the legislative history

of the District of Columbia District Attorney Act, to briefly outline

the positions of proponents and opponents of the legislation, and to

describe how the proposed legislation, H.R. 1296, would realign the

prosecution of local criminal and civil cases in the District of Columbia.

H.R. 1296 would amend the District’s Home Rule charter by creating the elected office of District Attorney and transferring to the

DA prosecutorial authority for all local criminal laws, as well as

the authority over the enforcement of civil laws of the District and

civil actions against the District government. The legislative history of the District Attorney Act dates back to June 2002, when the

City Council approved a referendum for inclusion in the November

5, 2002 ballot. Eighty-two percent of the votes cast approved of asking Congress to amend the Home Rule Act for the purpose of establishing an independently elected DA

In June 2003, Representative Norton introduced H.R. 2334, proposing a change in the city charter for the purpose of establishing

an elected office of district attorney. No congressional action was

taken on the bill. In succeeding Congresses, Representative Norton

re-introduced the legislation as H.R. 5800 in the 109th Congress,

and H.R. 1296 in the 110th.

In May 2004, then-Mayor Anthony Williams redesignated the Office of the Corporation Counsel for the District of Columbia as the

Office of the Attorney General. Subsequently, the City Council approved a measure in February 2005 that amended the D.C. Code

to reflect the change. Currently, the District’s Attorney General has

authority to prosecute violations of D.C. law where the maximum

punishment is a fine only or imprisonment not exceeding 1 year;

conduct all civil lawsuits filed against the District; and furnish

legal opinions in writing to the Mayor. Currently, other major

criminal prosecutions are conducted by the U.S. Attorney’s Office

for the District of Columbia.

Under H.R. 1296, however, the newly created Office of the District Attorney would prosecute all of the criminal laws of the District. Supporters of the locally elected prosecutor maintain that the

legislation is consistent with the goal of expanding home rule and

self-governance, would create an independent prosecutor directly

answerable to the voters, is consistent with the practice of most

local governments, and could lead to improvements in law enforcement.

In addition, supporters point to the fact that local prosecutors are

overwhelmingly elected to office. A 2002 report by the International

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City-County Managers Association found that 93 percent of 876

counties reported that the local county prosecutor was an elected

position.

Opponents of the measure to establish the elected position of District Attorney contend that creating such an office could result in

significant costs to the District as prosecutions currently handled

by the U.S. Attorney may shift to the DA’s office. They note that

a 2002 report by the CFO estimated the cost of implementing the

proposed legislation would be $57 million. The estimate assumed

that portions of the caseload of the U.S. Attorney’s Office would be

wholly transitioned to local authority.

H.R. 1296 leaves several unanswered questions open for discussion. Most of them would be left for local officials to resolve, but

Federal involvement or Federal assistance may be needed under

certain conditions. For instance, the following issues may require

Federal consideration:

Staffing of the new office. How would the new Office of District

Attorney be staffed? Would some of the attorneys now in the Attorney General’s office be transferred? What will be the future responsibilities of the Federal attorneys who are handling district cases?

The role of the Attorney General. The bill does not call for the

abolition of the Office of the District Attorney General, although it

would transfer some, but not all of the duties and responsibilities

of that office to the District Attorney. It may leave many still within its authority.

Would the Attorney General’s office continue to provide legal

opinions and support to the Mayor and executive branch agencies?

And finally, funding. Currently, Congress provides an annual appropriation for the operation of the local court system and criminal

justice-related activities. Although the bill does not assume Federal

financial support for the Office, some observers contend that such

support will be consistent with the Federal Government supporting

other elements of the criminal justice system.

Conversely, it may be argued that the U.S. Attorney’s involvement in the prosecution of local crimes represents a savings to District residents, much like Federal support for court operations and

defender services.

Mr. Chairman, this concludes my testimony. I will be happy to

answer any questions.

[The prepared statement of Mr. Boyd follows:]

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Mr. DAVIS OF ILLINOIS. Thank you very much. We will proceed

to Mr. Spagnoletti.

STATEMENT OF ROBERT J. SPAGNOLETTI

Mr. SPAGNOLETTI. Thank you, Mr. Chairman, members of the

subcommittee. It is a pleasure to be here today to discuss H.R.

1296.

As you noted before, I was an Assistant U.S. Attorney for the

District of Columbia from the year 1990 until 2003, and served as

the Chief of the Sex Offense and Domestic Violence section in that

office. I then had the pleasure of serving as the Attorney General

for the District of Columbia from 2003 through 2006 under Mayor

Anthony Williams, and began my tenure when that office was

known as the Office of Corporation Counsel.

The Office of the Attorney General for the District of Columbia

is unique. Appointed by the Mayor of the District, the AG has the

statutory obligation to conduct the District’s ‘‘law business.’’ Thus,

in addition to handling all the District’s civil litigation, the Office

of the Attorney General is responsible for virtually every aspect of

the city’s law practice, including real estate tax, bankruptcy, child

protection, child support, domestic violence, anti-trust consumer

protection and all the city’s appellate work. The Office also shares

criminal prosecution authority with the Office of the U.S. Attorney.

The District’s Attorney General is unique in other ways. It is one

of the few State-level chief legal officers who is appointed by the

Chief Executive. Most Attorneys General in States are elected. The

District’s Attorney General does not serve for an established term.

The District’s Attorney General could be removed by the Mayor at

will and without cause, and there are no minimum qualifications

for being the appointed Attorney General, including no requirement

that the Attorney General be licensed to practice law in the District of Columbia.

H.R. 1296 would significantly change the way that the District’s

chief legal officer is selected and the scope of his or her responsibilities by transferring those powers from the U.S. Attorney’s Office

to prosecute local offenses to the new District Attorney. Having

served in both offices, I am pleased to offer my thoughts on the bill.

First, I fully support the concept of an elected District Attorney

for the District of Columbia, a position shared by 80 percent of my

fellow District residents, who voted in favor of an elected District

Attorney in the referendum. Indeed, there is no logical reason why

District residents should not be able to elect their chief legal officer

in the same manner as almost every other State. Forty-three

States conduct State-wide elections for their State Attorneys General.

The Attorney General for the District of Columbia is appointed

by the Mayor and serves entirely at his pleasure, subject to removal for any or no reason. This creates a complicated dynamic between the Mayor and the Attorney General where every decision

made by the chief legal officer may be influenced by the Mayor

under the explicit or implied threat of being removed from that position.

A District Attorney independently elected by the citizens of the

District would enjoy greater independence from the Mayor, would

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be free to zealously represent the interests of the District of Columbia, and would be held accountable directly to the public. H.R. 1296

would also unify local criminal prosecutions. Criminal prosecution

authority for local crimes is currently divided between the Office of

the U.S. Attorney and the Office of the Attorney General. The division is based on historic and technical grounds and not a logical division of criminal offenses.

The AG’s office prosecutes traffic code violations, local tax crimes

and a number of quality of life misdemeanor offenses where the

penalty is jail or a fine but not both, where the penalty is a year

or less. The AG also prosecutes all juvenile delinquency cases.

Whereas, the U.S. Attorney’s Office prosecutes all those offenses for

which it had responsibility at the time Home Rule was enacted,

which are most of the felony charges and serious misdemeanors

where the penalty is jail and/or a fine.

This unusual division of charges and responsibilities leads to unusual results. First, one offense can lead to charges by both offices

in the same courthouse. Second, the division dictates unusual results in case management. It is not unusual, for example, for the

Attorney General of the District of Columbia to seek immunity

from prosecution for a witness from the U.S. Attorneys’ Office from

the District of Columbia for local offenses, when the District has

need for that witness’s testimony. These complications would not

exist under a unified chief prosecutor.

I would recommend, however, that the position created by H.R.

1296 be called Attorney General for the District of Columbia, rather than the District Attorney. The term District Attorney is generally used for a jurisdiction’s chief prosector. Here, as described in

the bill, the new office would comprise all of the existing civil, family, transactional and criminal functions of the current Attorney

General and add the local prosecution authority of the U.S. Attorney. The combined civil and criminal authority is more akin to

States’ Attorneys General such as Rhode Island, Delaware and

Alaska, which have the combined powers, than a pure District Attorney, which generally is criminal prosecution.

The minimum qualifications in H.R. 1296 are moderate and reasonable, given that there are no qualifications at the moment. I

would urge the subcommittee, Members and staff to take a look at

my testimony for some of the logistical difficulties in implementing

this bill. There is a huge financial implication for this for the District by subsuming the responsibilities of the U.S. Attorney’s Office

as well as logistical issues dealing with the inter-relationships

among those parts of the local criminal justice system that are

funded by the Federal Government.

I see my time has run, and I am happy to answer any questions.

[The prepared statement of Mr. Spagnoletti follows:]

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Mr. DAVIS OF ILLINOIS. Thank you very much.

I want to thank both of you gentlemen for being here and for

your testimony.

Mr. Boyd, I will begin with you. In your report on H.R. 1296, you

make mention of several outstanding issues with regard to the

bill’s proposal for an elected District Attorney. In your opinion, if

enacted, what would be the most significant operational challenge

posed by this legislation?

Mr. BOYD. Mr. Chairman, I think the transition, whether or not,

how the U.S. Attorney’s Office will cooperate, coordinate with the

newly created Office of the District Attorney.

Mr. DAVIS OF ILLINOIS. Following approval of the Revitalization

Act, why do you think the prosecution of local criminal cases was

assigned to the U.S. Attorney’s Office versus remaining with the

District’s Office of the Corporation Counsel?

Mr. BOYD. Again, I think it probably was a question of cost. At

the time, if you recall, Mr. Chairman, the District, the Federal

Government became responsible for a number of court operations

and criminal justice activities, it was shifted to the Federal Government I think to the tune of approximately $200 million or so. So

I think it really was a recognition of probably some kind of savings

that could be achieved.

Mr. DAVIS OF ILLINOIS. If you were trying to strengthen H.R.

1296, can you think of any way that you would seek to do that?

Mr. BOYD. I would go back to the first answer I posed, and I

think it is a question of transition, whether or not there should be

some clear statement in the legislation that clearly defines how the

U.S. Attorney’s Office would cooperate with the newly created District Attorney. Of course, there is a question of money, whether or

not Congress would, as it has done with other activities of criminal

justice that it supports for the District of Columbia, whether or not

it would provide some funds for the transition.

Mr. DAVIS OF ILLINOIS. Thank you.

Mr. Spagnoletti, staffing and cost considerations have been highlighted as probably the greatest barrier to implementing H.R. 1296.

How would you recommend dealing with the staffing and financing?

Mr. SPAGNOLETTI. It would be a complicated issue, Mr. Chairman. There are more than 300 attorneys at the U.S. Attorney’s Office right now. I would venture to say that about 200 of them, plus

or minus, handle local affairs, either at the trial level or at the appellate level, and then probably another several dozen who provide

support services to those lawyers.

So really, not quite two-thirds of the office are handling local

matters, if you will. That is a substantial number of bodies that

would need to be brought over to the District of Columbia, if you

were going to take them over wholesale. There are certainly ways

to do it in a more strategic way, if you will. For example, the Office

of the Attorney General already handles a fair number of misdemeanor cases. Indeed, they handle about 10,000 misdemeanor

cases every year on their level, combined traffic and what we call

D.C. offenses.

The U.S. Attorney’s Office could bring over the misdemeanors

first, then bring over the felonies later, you would have a grand

42

jury issue to be concerned about as well, because the local grand

jury sits in the U.S. Attorney’s Office. So there are some logistical

issues that would need to be thought through, both in terms of

whether or not these folks are simply going to come over, whether

you would create new positions on the District side to have them

filled. I think it would be, as Mr. Boyd points out, I think that

would be the logistical difficulty in doing it.

Mr. DAVIS OF ILLINOIS. I come from a town where people are

pretty straight up in terms of expressions. There is one expression

that people have that says, you have to pay the cost to be the boss.

How do you think your fellow citizens in the District would feel

about some cost increase relative to financing the Office?

Mr. SPAGNOLETTI. Again, I will speak on behalf of myself as a citizen of the District of Columbia. I think you are right, you do have

to ‘‘pay’’ in order to be the boss. It is a worthwhile venture to give

the District of Columbia control over its local prosecutions to make

this happen. And indeed, without knowing sort of the full picture

of what Congress might decide to do at the end of the day with

this, there may be some ways to reduce the overall combined costs,

if you will, by using some of the existing resources and requiring

the U.S. Attorney’s Office to share some of the existing infrastructure with the Office of the Attorney General, if that is the direction

that Congress were to go with this.

I would also point out that there are other parts of the system

that remain federally funded even if this bill were to move forward:

public defenders service, court services and defender supervision

agency that provides pre-trial and probation services to local offenders. Those are all currently funded by the Federal Government.

I would create an interesting dynamic to have a locally funded and

independently elected prosecutor and have these other parts continually federally funded.

I would also point out that currently, felons on local offenses are

sent into, as I am sure the chairman knows, the Federal Bureau

of Prisons. You would have a locally elected prosecutor making

prosecution decisions that will impact Federal prison resources at

the end of the day. The financial implications of this stretch beyond

the personnel costs of moving over those 200 prosecutors to the rest

of the system.

But speaking on behalf of myself as a citizen of the District of

Columbia, at least for this piece of it, I think it is a worthwhile investment of local resources to have local priorities govern prosecution of local offenses.

Mr. DAVIS OF ILLINOIS. I thank the gentlemen very much.

Mr. Marchant.

Mr. MARCHANT. Thank you, Mr. Chairman.

Where I come from, the District Attorney would be the county attorney in Texas, and would bring prosecution on all criminal offenses in the county for each city. So the cities only have municipal

judges and local prosecutors.

So it is not exactly a model that I am familiar with, where the

city itself would have the Attorney General, or the prosecuting attorney. Then we have the other overlapping jurisdiction of the U.S.

Attorney. Is that how you would envision this to work on the

43

ground in D.C.? Would D.C. basically be like a county, like functions in Virginia?

Mr. SPAGNOLETTI. The District, of course, is unique. The Attorney General’s Office for the District functions as what would be the

equivalent in the States as a city attorney, the county attorney and

the State Attorney General rolled into one. It handles all the civil

cases, it has child support, child protection, it handles domestic violence and all the transactional work.

But the New York Corporation Counsel, what that office does is

already done by the D.C. Attorney General’s Office. The Attorney

General for the District is a member of the National Association of

Attorneys General because it really does have State-like responsibilities in its job function every day. But because we don’t have

any subdivisions, they all roll up into the Attorney General, including the General Counsel for all the agencies that are subordinate

to the Mayor. The Attorney General has supervisory authority over

them as well.

So it really, I would actually suggest that you take a look at

Delaware, Rhode Island and Alaska. Delaware and Rhode Island in

particular, where the State Attorney General has the typical AG

functions but also serves as the State prosecutor. Because that is

where we are most comparable, both in terms of size and population as well. That is what their scope of responsibility happens

to be.

Mr. MARCHANT. Yes, and in Texas, the State Attorney General

has no criminal prosecution at all.

Mr. SPAGNOLETTI. I think most of the State AGs do not have direct criminal prosecution for local offenses. They can either request

it, they can be asked to step in. Some States share that responsibility but don’t use it. Utah, for example, they share the responsibility

with local prosecutors. They only step in when they think the local

prosecutor is not doing what needs to be done in that case.

But they also have all the appellate authority for the State, and

they will conduct, on the appeal side for criminal cases, on behalf

of the entire State and all the local jurisdictions to ensure the State

is speaking with one voice on important legal issues relating to

criminal law. So again, I think that the District, unique in many

respects, you just have to roll up the city attorneys and the county

attorneys and the State AG into one office, which is why, of course,

I recommend using the name in the bill as the Attorney General

rather than District Attorney. Because the DA suggests criminal,

Attorney General suggests the wide range of responsibilities.

Mr. MARCHANT. But per your testimony, even if you accomplish

that, you would still have a Federal AG that would prosecute Federal crimes?

Mr. SPAGNOLETTI. Absolutely.

Mr. MARCHANT. Just like in a State.

Mr. SPAGNOLETTI. Absolutely.

Mr. MARCHANT. But unlike a State, all of the support agencies

that are usually funded by a State or a city or a county are funded

by the Federal Government here.

Mr. SPAGNOLETTI. It is a mix. The Metropolitan Police Department generates most of the cases that come in to the U.S. Attorney’s Office and certainly to the Attorney General’s Office. That is

44

locally funded. But more than most other jurisdictions, we have

Federal law enforcement agencies in the District, many of them,

that have local arrest powers. So we do have the Park Police, the

Capitol Police, all of them making arrests under local offenses.

I think actually more significant than the arrest powers are actually the investigation side of things. Although MPD does most of

the investigations, from the most serious crimes, the District is still

relying substantially on the FBI, ATF, DEA for its backup work.

They are working on changing that by having a local lab and doing

those things. But those are parts of the puzzle that need to be considered when these things get done.

Mr. MARCHANT. So talk about the Park Service. We have had

some very high profile Park Service investigations and arrests.

Under this proposed legislation, would they continue to be in the

Park Service? Would those authorities continue to be vested in

there, or would they transfer over to the city Attorney General?

Mr. SPAGNOLETTI. What would happen is, the Park Police makes

the arrest under an agreement that the Park Police has with the

District of Columbia, allowing it to enforce its local laws, if you

will. So if they are on park land, they need to make an arrest, they

bring it in. Because the charges go two different ways, if it is an

indecent exposure case, for example, that is an AG offense so they

go to the local Attorney General’s office. Park Police comes in to do

what we call paper the case.

But if it is a possession of marijuana case, it goes to the U.S. Attorney’s Office. It is just a matter of which way they walked. Did

they walk to 555 Fourth Street or 441 Fourth Street? Just two different sides of the street over there. That would be the difference.

I actually would suggest to you that the bill puts the District on

the same footing as other jurisdictions when it comes to the decision about local versus Federal prosecutions. Right now, when a

case walks in the door at the U.S. Attorney’s Office, there is not

necessarily any kind of a discussion that goes on between the local

authorities and the Federal authorities about whether this case is

better placed in the Federal courthouse or in the Superior courthouse. Because the U.S. Attorney has the complete authority to

make the decision about which direction that case goes.

But in every other State in the country, the local prosecutor and

the U.S. Attorney have to have a discussion about what makes the

most sense. They have to cooperate that way. And although I will

say that in recent years, the U.S. Attorneys who have held the position have really made efforts to reach out to the local population,

the Attorney General’s Office and the council, it does allow them

to basically keep the matters entirely within their own office without necessarily sharing information.

I have to say that I have had experiences as the Attorney General where I needed to do something on the local level, but the U.S.

Attorney’s Office had the information in their hands and they

didn’t share it with me. Because they thought it was more important to do whatever they were going to do on the Federal side than

it was for us to do on the local side. There was no conversation,

because they have the entire ball of wax, if you will, in their hands.

So while I say generally the communication is good, but by placing all the local and all of the Federal matters into the U.S. AttorVerDate 11-MAY-2000 15:50 Feb 17, 2009 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 C:\DOCS\46886.TXT KATIE PsN: KATIE
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ney’s hands, there is no discussion, because the U.S. Attorney

makes those decisions.

Mr. MARCHANT. And there is no ability on the part of the U.S.

Attorney’s Office to give that authority to the city, does it have the

authority to cede that power to the city now?

Mr. SPAGNOLETTI. In some small circumstances where there are

some technical things in the Code, but yes, there are some circumstances where we have cross-designated assistant U.S. Attorneys as Attorneys General to try to minimize the problem I discussed in my testimony. For example, someone gets arrested in the

act of prostitution, and there is an indecent exposure and a prostitution charge. Indecent exposure is an AG charge, prostitution is

a U.S. Attorney’s Office charge. For years and years, it would be

two separate cases, two separate jackets, two separate judges

marching those cases there.

When Ken Weinstein was the U.S. Attorney and I was the Attorney General, we entered into a written agreement that on certain

low level offenses we would bring those into one court or the other

and allow the respective assistants to prosecute those matters, to

try to minimize what was going on with the duplication of cases

and reduce the number. But that exists only at the lowest level because of what the power of the AG has right now in terms of its

criminal authority.

Mr. MARCHANT. Do either of you consider yourselves to be Constitutional lawyers?

Mr. BOYD. I am certainly not. [Laughter.]

Mr. MARCHANT. Mr. Chairman, if there is another hearing on

this, I would request that we have a Constitutional lawyer to get

some perspective on the Constitution as it is written and the opinion of the effects it would have on the Constitutional intent of this

Federal zone, this Federal State and what a change like this may

or may not have as far as Constitutionally. Thank you.

Mr. DAVIS OF ILLINOIS. Thank you very much, Mr. Marchant. We

will make sure that happens.

Ms. Norton.

Ms. NORTON. Thank you very much, Mr. Chairman. I hope that

you will make available, if you have not, the CRS report on this

matter, which did not raise Constitutional questions. I can understand the ranking member’s interest in that. The fact is, the only

reason the District has a U.S. Attorney is that in essence, there

was no local jurisdiction here. There was nobody else to prosecute

crimes for 150 years. We were denied Home Rule. Thus, somebody

had to do it. You have the U.S. Attorney doing it.

It has not been suggested that we couldn’t do for the U.S. Attorney the same thing we do, for the U.S. Attorney, creating a DA,

Attorney General, whatever you want to call it, the same way we

have done for the Mayor. There wasn’t any Mayor, either. There

wasn’t any City Council either. We passed the Home Rule Act, Federal jurisdiction. We have delegated the executive authority to the

Mayor, legislative authority through the Council, and we can delegate the Authority to prosecute local crimes, in my judgment. And

I do speak from some background as a Constitutional lawyer. I believe we could delegate that authority from the U.S. Attorney to an

elected person.

46

Both of you, you, Mr. Boyd, you, Mr. Spagnoletti, raise the notion

of this nomenclature, which I think could be quite confusing, and

I would hate the bill to get all messed up with nomenclature. The

fact is, Mr. Spagnoletti, you were a classic Attorney General before.

That is to say, normally U.S. Attorneys, the Attorney General does

not have major criminal jurisdiction. So you converted the name

which, as a native Washingtonian, I can tell you has always been

Corporation Counsel, and also is a word used in some jurisdictions,

you at least were using a term which was conversant with the duties of the office.

And Mr. Boyd raises in his testimony the notion that we do not

call for the abolition of the role of the Attorney General of the District of Columbia. We don’t in this bill, because we are writing a

Home Rule bill. If the District wants to do that, that is for it to

do.

But Mr. Spagnoletti implies that because Delaware does in fact

apparently, probably to save time and money, it puts both functions in the same place, implies that you really could have them

both in the same place. I want to ask you, Mr. Spagnoletti, I want

to ask you whether or not, given the nature of criminal prosecutions here, in a big city, whether that for you is an important point,

to have an office that covers civil and criminal matters in the same

office, and if so, for what reason?

Mr. SPAGNOLETTI. As I read the bill, because it takes the D.C.

Code and changes the name, if you will, of the current Attorney

General, actually I think it still reads Corporation Counsel in the

bill, but the Attorney General, and sort of rolls them into one, my

reading of the bill actually has virtually all the powers of the current Attorney General being merged there. So I thought actually it

was more the intent of the bill to have those things all together.

But certainly, I can see a model where you simply take the criminal prosecution from the Attorney General’s Office, the criminal

prosecution from the U.S. Attorney’s Office and roll that together

into an elected DA and severing the rest of it out to an Attorney

General for the District.

Ms. NORTON. You are right, the Counsel would have to make

that decision. The one issue that would bother me about that is the

issue of the independence of the DA. This is somebody who ought

to be able to prosecute a mayor or city council members. This is

somebody who the Mayor should have no control over, that is why

the people of the District of Columbia wants them elected. I don’t

want to suggest we want them to prosecute our public officials, but

the independence for the, this is the only official that would be as

independent as members of the Council, as independent as the

Mayor. It is not just because we want another elected official.

The reason I raise this is when you imply, and we would have

to look at what the Delaware experience was, is that it has been

a matter of some concern in the District now that there is confusion as to whether or not, and I can understand the confusion, I

think it is structural confusion, even within an office that doesn’t

even have major criminal jurisdiction as to whether or not the Attorney General is essentially an independent officer or whether or

not he is like every other appointee of the Mayor.

47

This confusion I think is harmful. But it is harmful because of

the structure that Congress has set up, giving the Attorney General certain roles, I am sorry, given where, and this was initially

set up by the Congress, but where the Council seems to be contemplating trying to clarify just how independent even the Attorney General is. Well, the controversy has arisen about independence within an agency that everybody knows, and nobody has suggested, at least yet, should be elected, should be appointed.

Then I raise this only out of this discussion, wonder whether or

not we would be defeating the independence of this official by mixing with the criminal prosecutions, that is responsible for criminal

prosecutions, his responsibility for some matters where he must be

directed by the Mayor and then by the City Council.

Mr. SPAGNOLETTI. To roll together everything would be a challenge, to say the least, for the Attorney General to keep going. But

it is not unusual, and it is not unusual for——

Ms. NORTON. How is independence preserved? What kind of wall

preserves the independence of the Attorney General? Is he elected?

Mr. SPAGNOLETTI. It is the election, yes. I guess what I contemplated in reading your bill is that it would be the elected Attorney General, have all those authorities that ran to the former Attorney General as well as the prosecution authority, the local prosecution authority from the U.S. Attorney.

Ms. NORTON. I am speaking functionally, Mr. Spagnoletti. Yes,

you give him the authority, functionally, he is responsible to the

executive for executive functions. He is responsible to no man for

criminal prosecutions. So I am just suggesting without knowing,

because I think this matter would be left, obviously, to the Counsel,

that the notion that it all hangs together and if he is elected it will

work out all right, even though his responsibilities to the executive

are clear, is something I think would need investigation.

Mr. SPAGNOLETTI. I guess I would say two things. One is that the

challenge that you point out is one that is experienced by every

State Attorney General across the county.

Ms. NORTON. Yes, I need to know what it is.

Mr. SPAGNOLETTI. For every matter, the question is always, who

is the client. The person himself as the Attorney General is protected by the election process. So at least in terms of your job not

being on the line when you make a decision, the election, at least,

the election process takes care of that.

But then for every matter, and this is true of every attorney general, for every matter, who the client is changes where your line

of responsibility, like every lawyer, happens. In a criminal case,

you are beholden to the people as a whole, and you can’t be directed or influenced by other members of the executive, legislative

or judicial branch in how you do those functions.

But in civil matters, you do take your direction, and it is true of

every Attorney General——

Ms. NORTON. Mr. Spagnoletti, I don’t want to press this, although the lawyer in me wants to. I mean, we have child abuse

matters, you have matters that move that, the line, and it was so

clearly drawn, there would be a whole lot less litigation in this

country. And I think the, and I raise it only because it is an interesting legal question and because as Mr. Boyd raised, you still have

48

the Attorney General, and I responded to him the reason is that

for the District to decide.

But I just want to leave a notion that I think wrapping it up is

something that raises issues that they would have to sort out. That

is the only reason I am pressing it, not to want to solve it.

But I do want to ask you about your dual experience. It seems

to me to be invaluable to us. Because you were responsible for just

the kind of cases that I think could cause confusion in an office

that has the Attorney General and the DA in the same office, because you were responsible for all criminal cases in the U.S. Attorney’s Office as its chief of the Sex Offense and Domestic Violence

Section for prosecuting criminal cases involving sexual abuse of

adults and children and intra-family offenses, etc.

Now, did your experience lead you to believe that the cases that

you prosecuted could have been easily, more easily, perhaps handled by an official who was elected by the people of the District of

Columbia who had to live in the District of Columbia?

Mr. SPAGNOLETTI. I certainly think that could have been handled

just as easily, yes.

Ms. NORTON. Was there any advantage to prosecuting sexual

abuse cases involving children and families in a U.S. Attorney’s Office?

Mr. SPAGNOLETTI. But for the resources that were available to

us, I think that was really the only difference.

Ms. NORTON. The notion—do you have any experience in bringing families to the U.S. Attorney for such prosecutions, families

which may still be together but where you are prosecuting people

for sexual abuse and the like? Here it has become what looks like

a Federal offense and you are dealing with the Feds. Must have

been a serious crime or it wouldn’t have been prosecuted by you.

But I am wondering whether or not that even facilitates criminal

prosecution at the Federal level, even facilitates what we all hope

for when even serious family matters develop.

Mr. SPAGNOLETTI. I guess I would say two things. One is, it does

require, every time someone walks into the office, an explanation

of why they are coming to the U.S. Attorney’s Office and the fact

that it is not——

Ms. NORTON. Did you have any social workers to deal with such

families in your office?

Mr. SPAGNOLETTI. In the U.S. Attorney’s Office?

Ms. NORTON. Yes.

Mr. SPAGNOLETTI. There were victim witness advocates that——

Ms. NORTON. Volunteers?

Mr. SPAGNOLETTI. No, actually employees. We started the program in 1996.

Ms. NORTON. Excellent.

Mr. SPAGNOLETTI. So there were victim witness advocates who

worked with those families. But again, they were Federal employees, so it required another step to hook them up with local services

and local processes along the way.

I would also mention that, I don’t want anything to think that,

when cases come in under the Sex Offense and Domestic Violence

side, which is in the Superior Court division in the U.S. Attorney’s

Office, it was extremely rare, very, very rare, that those cases ever

49

made it over to the Federal side. There was a division in the office

that, I mean, I have not been there in a few years, but there was

a fairly significant division between the Superior Court side and

what they called the criminal division. So it is not as though the

cases are, once they track, they tend to track one direction or the

other. And sex offense, domestic violence, child maltreatment cases

almost always tracked down Superior Court side.

Ms. NORTON. Of course, it must have been very serious offenses

for you to have had jurisdiction at all.

Let’s go back to the testimony of Mr. Boyd. You mentioned a figure over $50 million for the cost. What was that figure?

Mr. BOYD. It was $57 million, that was an estimate by the CFO

in 2003. I know that some have challenged that estimate.

Ms. NORTON. Well, I don’t challenge it. I don’t challenge it, because I think one has to look straight in the face of the costs and

I will say that when the Council went to do its bill, I questioned

them about whether or not, before I put my bill through, they understood that this was a transfer of costs to the District of Columbia, that the District of Columbia had never borne. I was told by

those who know best in the Council they were prepared for that

cost.

In your judgment, Mr. Spagnoletti, I would have to ask you

about that. Your office, the Attorney General’s Office, has often,

this is not, I speak not unto you, Mr. Spagnoletti, but for years

been seen as an office that was not splendidly funded. In fact, an

office that has had some difficulty with the courts. Do you believe

that the, in your judgment having been an Attorney General, that

the city would in fact take on the cost, no matter what it was, for

the new person, Attorney General or DA, and all that goes with

that person and that office?

Mr. SPAGNOLETTI. I would assume that would be the case, given

the combination of referendum and action by the Council. I think

you are correct in your analysis of where the Office of Corporation

Counsel was. I would say that within the past, maybe this is a little self-serving, I realize, but I do think it has made significant

headway moving forward in terms of its technology and the support

that it has to do its job. I think the court has recognized that certainly in recent years.

So I think a measured transfer, and again, I am assuming the

District has bought into this, that is, the elected officials have

bought into this who are going to control and make budgetary decisions, since they have——

Ms. NORTON. Do you think the city is capable of handling this

$57 million or as it goes up cost?

Mr. SPAGNOLETTI. I would assume so, yes.

Ms. NORTON. We have a budget here, what, $3 billion locally? I

don’t know if that $6 million will count everything.

Mr. BOYD. Ms. Norton, if I could interrupt for a minute, we did

look at a couple of cities of comparable size to the District or counties. Baltimore, for instance, it is State’s Attorneys Office, budgeted

about $31 million.

Ms. NORTON. That is the office of the local DA?

50

Mr. BOYD. Right, that is the local DA. The King County Prosecuting Attorney’s Office, that is where the city of Seattle is located, had a budget of about $53 million.

Ms. NORTON. Well, this office is, although if you talk to the U.S.

Attorney, particularly in the last few years, their own funding has

suffered markedly. Nevertheless, the U.S. Attorney’s Offices, I

should say, are known for splendid hires, and so much so they go

on to be, as Mr. Spagnoletti progressed, if you could considered

that, or to be judges themselves. They are of very high quality.

There recently has been a huge outcry about the Attorney General

scandal here, because they were considered always although appointed by the President, they were considered, and frankly, it had

a long record of being apolitical, going where they have to go.

You say, Mr. Spagnoletti, there are more than 300 lawyers, this

is on page 6 of your testimony, in the U.S. Attorney’s Office. This

is really stunning. Everybody should listen to this, 200 of them

prosecute local criminal matters. The people of the United States

are essentially paying for the local DA or Attorney General.

Do you believe, having been in both offices, Mr. Spagnoletti, that

the U.S. Attorney left only with Federal jurisdiction would have

ample authority to have a U.S. Attorney for the District of Columbia here and move forward?

Mr. SPAGNOLETTI. Absolutely. There are plenty of cases, in fact,

I would say that one of the reasons the number on the Superior

Court side is so high is that cases that would otherwise be brought

federally are being directed locally for operational form, shopping,

if you will, types of reasons. It in no way suggests that there is a

lack of cases, a lack of work or a lack of authority. In fact, quite

the opposite. I think there is plenty of work that needs to be done

on the Federal side by the U.S. Attorney side from what would normally be local offenses.

Ms. NORTON. For the record, I would like to clarify this notion.

It is true that you have two sets of, you have more Federal police

here than elsewhere, this is Federal jurisdiction. And you have the

Park Police, I think alone, has city-wide jurisdiction along with the

D.C., and you know what? This Member, who loves the Park Police,

would strive to keep it that way. Because what they do is arrest

people, some of our biggest drug busts over the years have come

from Park Police. Why? Because much of their patrol is in and

around parks. Many of those parks are in high crime neighborhoods, across the Anacostia, Anacostia Park, Fort Dupont. So they

have been very helpful to us.

The fact that the Park Police, or for that matter the Capitol Police, can make some arrests, why is that any different from what

the Park Police would do in Wyoming or what Federal police do

elsewhere? If they make an arrest and, if they are making an arrest under delegated jurisdiction as the Park Police is, does, then

of course it seems to me there is a long history of how to do that.

But suppose you have other Federal police who make an arrest. Let

us say in other jurisdictions, which have normal relationships with

Federal agencies, let me ask a question, how would those Federal

officials from those agencies deal with the local DA or the local authorities?

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Mr. SPAGNOLETTI. As I mentioned before, I would expect that the

agreements would all continue for enforcement of local laws. There

would be the same types of arrests that there are now.

What could happen, I suppose, is that intervening step if the

local prosecution authority was all moved over to a DA or an attorney general, where if there was an arrest on park land, they might

very well run it past the U.S. Attorney to see if they wanted to do

it locally, much in the same way the Eastern District of Virginia

does, before they send it off to the local officials.

But again, I would expect that with cooperation all that would

be worked out in advance, so that folks would know, if you pick up

a marijuana misdemeanor case in Rock Creek Park, they are going

to take it there as opposed to here on the mall here as opposed to

there.

Ms. NORTON. What you are saying is important, I am really trying to discern whether there would be any difference here than

what occurs generally throughout the United States when there is

mixed jurisdiction or when, for example, a rape occurs in a park

where the rape is, you have to decide who is going to prosecute it,

local, or whether you are going to bring it through the U.S. Attorney.

Mr. SPAGNOLETTI. Well, actually, I think it is the same as other

States, and actually a little bit easier in the District for that kind

of coordination. Because we only have one court of general jurisdiction, and you don’t have Federal authorities having to go to different counties and district courts and circuit courts and the rest.

Ms. NORTON. You raise some operational challenges. I appreciate

your raising them in your testimony. But I wonder if they also

don’t track what happens in local jurisdictions. The Federal agency,

the mention that the Attorney General’s Office relies on the FBI,

ATF and DEA. Now, because he is a Federal official, he probably

has far greater access, more inclined to go to the FBI. If you go to

Prince George’s County, they will tell you the FBI was deeply involved in police matters there and in helping the State’s Attorney

there with respect to some police abuse matters that occurred

there. Doesn’t every jurisdiction cooperate with the ATF and the

DEA without even if the matter is a local matter?

Mr. SPAGNOLETTI. Yes. However, the one difference in the District is that we rely on some of those agencies for very routine

cases as well. Whereas other States have local labs that will do it,

for example, the DEA doing all of the chemical analysis on our

drug cases.

Ms. NORTON. That is because we don’t have a lab.

Mr. SPAGNOLETTI. That is right. I just point out, that is really

the issue, is that it has allowed the District to move slowly on developing a lab, because it has relied so heavily on the FBI, DEA

and ATF for very routine kinds of analyses that are done by States

or local jurisdictions in other places. But I think you are correct,

there is no difference in bigger matters where you would expect

that kind of cooperation from the FBI, ATF and DEA.

Ms. NORTON. I would also like to have your view on the notion

that some of our functions might remain Federal functions, at least

for cost purposes: public defender, appointed judges, our prisoners

who are in the Bureau of Prisons. These people work under the

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D.C. Code. Has that caused any confusion that the public defender

is funded—that is what it is—funded by the Federal Government,

that the judges are funded, and for that matter appointed by the

President of the United States, or that our prisoners are in Federal

prisons? Has that caused any confusion between local and Federal

jurisdiction?

Mr. SPAGNOLETTI. Operationally, no.

Ms. NORTON. I just want to make sure that we understand these

problems, so that we can know about them in advance. So they

won’t be raised as reasons to oppose the bill.

Most, if I may say so, most of what we get in excess of what you

might expect from Federal agencies comes because of location and

because they have a Federal U.S. Attorney and so you get some little increment of resources. That is what D.C. would have to give

up and be willing to give up. Now, it would still have the same access that any State has to the FBI, the ATF, the DEA and the rest

of it.

But you mention with the best example, and by the way, that

would remain, the best example is of course the lab, the forensic

lab. And we are building a new forensic lab. But until we have

built one there is no doubt in my mind that if there was a local

DA or Attorney General, that the Federal Government would continue the present arrangement. After all, we worked out an arrangement with them that respects the local jurisdiction.

Let me ask you, finally, Mr. Spagnoletti, about the jurisdiction

of the U.S. Attorney’s Office with the ability to charge some 16 and

17 year olds as adults. You mentioned this in your testimony. How

are children incarcerated if these children are charged as adults,

essentially by the U.S. Attorney and not by, not elsewhere?

Mr. SPAGNOLETTI. They are incarcerated in the adult system. So

they would be placed in whatever facility, but of course, probably

segregated as appropriate, given their age or vulnerabilities. But

once they are prosecuted by the U.S. Attorney’s Office, they go that

direction.

Ms. NORTON. Once they are charged, while they are awaiting

trial, what happens to these children?

Mr. SPAGNOLETTI. They are held as adults. Again, maybe segregated along the way.

Ms. NORTON. Where would be held? Would they be sent to OPO?

Mr. SPAGNOLETTI. No.

Ms. NORTON. When you are charged with a Federal crime, it is

pretty serious, you did something as a 16 or 17 year old that meant

you are not in juvenile court, or Superior Court.

Mr. SPAGNOLETTI. Right. As I understand it, they would be held,

for example, pending trial, in D.C. jail but away from either the

sentenced folks or I guess the more serious offenders. But that is

where they would be. They would not be mixed in with the juveniles, because they wouldn’t be considered juveniles.

Ms. NORTON. Well, I suppose that is no different than if we had

a DA, they would have to be held somewhere.

Mr. SPAGNOLETTI. That is correct.

Ms. NORTON. Finally, do you have anything to say, Mr.

Spagnoletti, about the quality of the U.S. Attorney’s Office and

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whether we would get that same quality of attorney if we in fact

had a local DA?

Mr. SPAGNOLETTI. I appreciate your asking that question, because I do want to put on the record that everything I have said

about my support for the locally elected DA is not meant to demean

or suggest in any way that the U.S. Attorney’s Office is not doing

a fine job with local offenses. Because I really believe that they are.

Having seen local prosecution across the country in lots of different

courthouses, I actually think they are among the best in the country in terms of handling local prosecution.

That being said, I have no reason to doubt that with an orderly

transition and properly funded, that same level of work couldn’t be

done by a local DA or Attorney General, whatever it turns out to

be. I had the pleasure of interviewing and hiring tons of folks at

the Attorney General’s Office who wanted to come to the District

and work at the local AG’s office on the smaller matters, juvenile

delinquency cases and folks who I think could have done and will

do just as fine a job as folks we might hire from the U.S. Attorney’s

Office.

I would be remiss if I didn’t put on the record that at least one

of the issues that is at play here is that the U.S. Attorney for the

District of Columbia has enjoyed a feeder system through the local

offenses, and that is that people come to that office oftentimes because they want to be in the U.S. Attorney’s Office, but they want

to do trial work.

You don’t get a lot of trial work on the Federal side, you get a

lot of trial work on the Superior Court side. It is a rotation system

and you go there and they put you in appellate for a little while

and then they put you in misdemeanors for a while, then felones

and grand jury and they move you on. So that by the time you get

to the criminal section, the Federal District Court side, you have

a number of years and experience under your belt, different than

any other U.S. Attorney’s Office in the country, where they hire

you and you immediately start working on Federal offenses.

So that is part of what exists in our system. I am not saying that

is a good or a bad thing. I am just saying that he has enjoyed, he

the U.S. Attorney or she the U.S. Attorney, has enjoyed that feeder

system. But basically, in my opinion, using local offenses as training grounds for what the U.S. Attorney was meant to do, which is

prosecute Federal crime.

So moving those functions to a local D.A. or a local U.S. Attorney

makes them the prime job. It makes that as the be all and end all,

to do that and to hire people who didn’t come to do something else,

but to prosecute local offenses, career folks who want to do homicides and sex offenses and family violence and quality of life

crimes. So you may get a different dynamic, but I am confident,

equally capable folks who want to be there, who can do qualify

work for the District of Columbia.

Ms. NORTON. Thank you very much. I thank both of you, because

I think it has edified the record. And thank you, Mr. Chairman.

Mr. DAVIS OF ILLINOIS. Thank you very much, Ms. Norton.

Let me just ask you, Mr. Boyd, in conducting your research, did

you uncover any degree of interaction among the different relevant

agencies of Federal or local government? In other words, the interVerDate 11-MAY-2000 15:50 Feb 17, 2009 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 C:\DOCS\46886.TXT KATIE PsN: KATIE
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action between and cooperation of the U.S. Attorney’s Office, District of Columbia, District Office of the Attorney General, other

local D.C. entities?

Mr. BOYD. I am sorry, Mr. Chairman, I didn’t quite understand

the question.

Mr. DAVIS OF ILLINOIS. The interaction between the different levels of government, local and Federal, the spirit of cooperation that

may exist between D.C. officials and Federal officials.

Mr. BOYD. We really didn’t look closely at that, but I am aware

that there is a criminal justice coordinating committee where all

these officials are members, the U.S. Attorney serves as a member

of that commission as well as the Mayor, the Attorney General. So

there is that kind of cooperation, at least there is that vehicle. But

we didn’t quite look closely at that. We will be happy to look into

it.

Mr. DAVIS OF ILLINOIS. Thank you.

Mr. Marchant, do you have any additional questions?

Mr. MARCHANT. No, thank you, Mr. Chairman.

Mr. DAVIS OF ILLINOIS. Gentlemen, thank you very much. We appreciate your being with us and this hearing is adjourned.

[Whereupon, at 11:45 a.m., the subcommittee was adjourned.]

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