Public defender says local stringent drug laws should be “re-visited”

Give court some leeway in sentencing

Public Defender Douglas Fiaui told the House Judiciary Committee during a hearing held last week, the problem that he sees with local stringent drug laws, is they do not give an offender parole or probation and suggested that the Fono revisit the local statute under Title 13 Chapter 10 — titled Medicine and Drugs. 

Fiaui pointed out that substance abuse is a problem in the territory and noted that attitudes are changing in other locales throughout the nation towards narcotic offenses. For example, marijuana has been legalized for medication and recreational use in many states.

“But our territory has some of the most stringent” laws when it comes to violations of local narcotic laws, he said, and pointed out for example, the penalty right now for possession of any amount of narcotics is a 5-year mandatory prison sentence “with no probation and no parole”.

He said, “Now we’ve worked with the Attorney General’s office and they have been very helpful in working with us to find alternatives to charging people under that section of the law,” adding that, “I think that ought to be revisited, I think it’s time to revisit that law.”

Fiaui explained to the committee that there are three sections of Title 13, in which people are charged when it comes to narcotics. The first section deals with the distribution of narcotics and the maximum penalty for distributing narcotics is 20 years in prison.

“For possessing narcotics the minimum penalty for that is 5 years mandatory detention, with no probation and no parole,” he told lawmakers. “And that is the second section in which people can be charged with narcotics.”

The third one, the public defender said, charges a person with violating Title 13 and that is a class D felony and the maximum penalty is 5 years in prison.

(Samoa News notes that the American Samoa Bar Association website provides specific details of the Title 13 Chapter 10 as www.asbar.org)

“So generally what happens, a person will be charged with possession of a controlled substance whether it be marijuana or meth — those are the two most common that we see,” he explained and noted that the mandatory penalty is five years in prison.

“If a person goes to trial and loses, and has been charged with that offense, the court has no discretion, they must sentence that person to five years, with no probation, no parole, it’s a five year straight term,” Fiaui said. “I know of cases where people serve five years for possessing a small quantity of a controlled substance. In many cases it’s marijuana.”

He explained further that rather than the person going to trial and facing five years mandatory imprisonment, the government would make an offer, in which the person would plead guilty to violating Title 13 and they would be found guilty of a felony.

And the court will then have “the discretion of sentencing from any where between ‘zero’ and five years in prison. But it’s still a felony conviction, and they (the defendants) can’t vote; and if they’re interested in joining the military that’s out because they can’t do that; they can’t apply for and receive financial aid from the federal government because that’s prohibited — persons convicted of narcotic offenses are ineligible of receiving student federal financial aid,” he said.

“But the people plead guilty to that section, violating Title 13, just so that they don’t have to serve five years in imprisonment,” the PD said and quickly pointed out that with a felony conviction “they also can’t work for the American Samoa Government.”

“And that’s what we see. We just got several cases like that [last week] with people charged with possession, young people. So it’s a very common thing,” said Fiaui, who again emphasized that he believes the Fono should look into these provisions of American Samoa’s stringent drug laws.

Committee chairman Rep. Toeaina Faufano Autele called the hearing so lawmakers could get some idea of the issues encountered by the Public Defender’s Office and how the House could respond to them. 

 

See last Friday’s edition on other problems and issues of concern raised by Fiaui.
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