Fitial vetoes bill to expunge some criminal records

Torres’ House Bill 17-52, House Draft 2, Senate Substitute 1, Senate Draft 1 had bounced between the House and Senate since it was introduced in March 2010.

“[HB 17-52] is a legislative proposal consistent with our heritage and culture in that it seeks to provide a mechanism for forgiveness of past criminal acts. Unfortunately, for the reasons outlined below, I must veto this bill,” Fitial said in his veto message to acting House Speaker Felicidad Ogumoro (Cov-Saipan) and Senate President Paul Manglona (Ind-Rota).

The governor cited six reasons for vetoing the bill, including conflict with existing statutes regarding expungement of juvenile records.

Public Law 16-47 provides that the records of criminal activity by juveniles may be expunged unless first- or second-degree sexual offense or murder. But existing regulation permits a juvenile’s criminal record to be expunged if it is third- or fourth-degree sexual offence. In other words, it only prohibits expungement of first- and second-degree offenses.

Fitial said HB 17-52 does not permit a record to be expunged if it relates to any sexual offense, including third- and fourth-degree convictions, effectively limiting the rights currently afforded to juveniles.

In his three-page veto message, the governor said the bill also conflicts with current regulations permitting non-public files of expunged records.

Several other statutes permit the court to retain nonpublic records of the expunged record for use in the case of future violations.

Fitial said a permanent record is needed to ensure that those who re-offend will not be inappropriately treated similar to first-time offenders.

“Therefore if all records, both public and non-public, are destroyed, there would be no way to determine if someone is a repeat offender or a true first-time offender,” the governor said.

Fitial also said the bill states that individuals convicted of a felony may, “after five years,” request their rights be restored with respect to public employment among other rights.

But Fitial said existing laws set different requirements for public appointment and elected office.

The governor said per existing law, a person is not competent to serve as a juror if he or she has been convicted of a crime punishable by a year or more in prison.

“[HB 17-52] overrides this law, by restoring juror competence without actually repealing or amending the existing provision,” he said.

Fitial also cited the bill’s lack of guidelines for the court to use in granting expungement.

The governor also said the bill proposes an amendment to 6 CMC 4113 (a) to include instructions for when a conviction may be “vacated” per the bill. But the governor said the bill has no provision that addresses vacating a conviction.

“Rather, the bill discusses only expungement and restoration of rights. The different terms have different meanings and effects. Thus, the bill should be revised to refer specifically to the terms addressed and used in the other sections of the bill,” Fitial said.

Torres, when asked for comment, said he had a “gut feeling” that the governor would veto his bill but he was still hoping that that wouldn’t be the case.

“It’s proof that Herminia Fusco is influential,” Torres said in a phone interview.

Fusco, a former Commonwealth Zoning Board chair, wrote Fitial a letter in May, asking him not to enact the expungement bill, saying the government should worry more about the feelings of majority of decent, law-abiding citizens than that of criminals.

“And by allowing convicted criminals to occupy elected office, this bill will make a mockery of those very offices. Elected leaders are supposed to be a little better than the rest of us, not worse,” Fusco said in a two-page letter to Fitial.

Fusco could not be reached for comment yesterday.

Torres said he has yet to see the veto message so he couldn’t say yet whether after addressing all the governor’s concerns, he could resurrect the bill and introduce a better version of it.

“Because I haven’t seen the letter yet, I also can’t comment whether I’d ask my colleagues to override it,” he said.

Torres, one of the longest serving lawmakers in the CNMI, said it is unfair that those convicted of involuntary manslaughter, for example, “and enter a plea bargain could get a one-year probation and then be forgiven and could have a clean record. But those who were convicted of minor violations are tainted for life.”

“Is that fair?” he asked.

By Haidee V. Eugenio
Reporter