Kosrae State AG expresses concerns with proposed pre-trial diversion bill

March 03, 2005

Acting Attorney General for the State of Kosrae Arthur Buck recently presented his questions and concerns regarding the pre-trial diversion bill recently proposed in the FSM National Legislature in a letter sent to the National Legislative Counsel and the FSM Department of Justice.

Among his concerns, Buck questioned which crimes would be considered for acceptance in a pre-trial diversion program, mentioning serious offenses that fall within the range set forth in the bill. He also questioned the constitutionality of the system if it were established. Buck said he would not endorse the bill.

The program, which would allow the court system to avoid costly trials in minor cases, would be established at a national level if Congressional Bill No. 13-168 passes. An alternative to prosecution, pre-trial diversion programs can save courts time and money by offering defendants the option of entering into the program voluntarily while waiving their right to a speedy trial. Defendants to whom the option is offered must then agree to a set of provisions decided by the Secretary of Justice of the FSM or a designee from that office. According to the bill, the program would be offered to those who had been charged with a crime carrying less than a five-year penalty and who have not participated in a diversion program within the past five years.

Buck said that bribery in official and political matters carries a sentence of not more than five years as do threats and other improper influence in official and political matters, perjury, advocating armed insurrection, and revealing classified information. Theft against the government, criminal mischief against the government, and unauthorized possession of government property can also carry sentences of less than five years.

He also stated he was concerned that the bill did not limit the scope of the program to national crimes. Buck said in Kosrae, category two felonies limit incarceration to not more than five years. These crimes include assault and battery, sexual assault without serious bodily injury to the victim, arson, embezzlement, larceny from a dwelling place, and rioting.

Buck said problems could also arise from bestowing all discretion for entrance and completion of the program upon one office. He said the secretary of justice would have free reign to decide who should be accepted for the program without any pre-determined criteria such as age, seriousness of the offense, or criminal history. This, he said, could raise questions of denial of due process and denial of equal protection under Article IV of the national constitution.

In addition, Buck said he was concerned about the constitutional problems surrounding the transfer of "control of justice and punishment for a potentially large number of offenders from the judiciary to the secretary of justice, thereby offending the separation of powers doctrine." He also said the secretary and the offender could enter into an agreement to enter the program before official charges were ever filed. In a typical diversion program, a court is required for supervision and approval. "The secretary becomes the prosecutor, defender, and judge all at the same time," Buck said.

In section 1605(1)(b), Buck said the secretary of justice can intervene in a case, whether national or state, and make it necessary for the prosecutor to file a notice with the court which would then be forced to stay the proceeding. The case would be dismissed if the secretary deemed the program had been successfully completed.

"Therefore, the national secretary in his sole discretion can direct a state prosecutor and a judge to dismiss a criminal proceeding," Buck wrote. "In fact, the secretary of justice would have the power to terminate a pending case (before trial started) in the national courts as well, stripping the judge of his or her inherent jurisdiction over a filed criminal action. This also may violate the separation of powers doctrine."

Buck also mentioned a possible encroachment into state administration of justice, which may violate Article VIII, Section 2 of the national constitution. "The section says that a power not expressly delegated to the national government or prohibited to the states (such as prosecution of state crimes), is a state power."

"If serious crimes occur, and the defendant is amenable to settlement, the justice department has the ability to enter into plea agreements that will accomplish many of the goals this statute hopes to achieve, while retaining the impartial judgment and control of the judiciary process," Buck said.

"Under the existing system of justice, a defendant must be first charged and brought before the court. Under a typical pre-trial diversion program, the defendant is charged, brought before the court, and diverted with court approval only. This proposed program would create a separate, non-judicial system of justice. This does not appear to pass constitutional muster."

Buck also distributed a letter expressing his concerns regarding Congressional Bill No. 13-191, which proposes to provide a mechanism to relieve businesses from some or all penalties and interest on past due taxes if the national or state government owns more than half of the business.

"The obvious concern is whether the bill gives an unfair advantage to state-owned businesses over private sector businesses," Buck wrote. "My expertise is not in taxation and revenue. However, it appears more fair if all businesses are given the same relief from penalties and interest and unfair if they are not. A business failing for lack of capacity to pay penalties and interest helps no one. It is true that the state has an interest in saving marginal state owned enterprises. However, it has an interest in helping save private businesses as well."