by Andrew Walden

Hawaii has a severe shortage of teachers and child care workers--and hundreds of potential applicants eager to fill those positions.  There is only one thing standing in their way; they are listed on the Hawaii Sex Offender Registry.  But Legislators have a solution: SB2706 “expands access to employment” by creating a task force for “clean slate expungement” which violates the principle of an open court system in order to prevent HR personnel from nursery schools, the State Department of Education, and other employers from learning the truth.

Pamela Ferguson-Brey, Executive Director of the State of Hawaii Crime Victim Compensation Commission, March 27, 2024 testifies before JHA:

 SB 2706, SD1, provides for a state-initiated program to provide for the automatic expungement of conviction records for certain persons. Examples of offenses which may be eligible for automatic expungement include domestic abuse, harassment by stalking, certain sex offenses, sexual exploitation, promoting pornography for minors, and habitual intoxicated driving.

The bill, as introduced, called for:

…automatic expungement of the conviction record, including records of any court proceedings stemming from the same conviction…(after five years) if the person has a conviction record for a petty misdemeanor or misdemeanor offense or (after seven years) if the person has a conviction record for a nonviolent class C felony offense….

As usual, House and Senate have approved  differing HD1 and SD1 versions of SB2706 which are now heading to the secretive Conference Committee where the real bill will be written. 

Testimony from Lynn Costales Matsuoka, Executive Director of The Sex Abuse Treatment Center at Kapiolani Hospital explains:

The bill as it currently reads, is much different than the original, which sought to have a blanket automatic expungement of petty misdemeanor, misdemeanor and non-violent class C felonies. The original bill did not define a “non-violent” offense, and casted a wide net, to include sexual offenses, which we strongly opposed.

As currently written, SD1 seeks to create a Taskforce to develop a state-initiated record clearing program. Unfortunately, of those agencies and departments listed, none appear to represent victims, or serve victims/survivors, despite the fact that any record clearing program will have a direct impact on the lives of so many victims.

While we can appreciate the legislature’s intention to provide a mechanism to allow many so called “low level” offenders the ability to have a fresh or new start on life, it fails to take into account, the rights and needs of victims who have elected to engage in the criminal justice system. While many have low expectations that their offender will be incarcerated for any length of time, for many sex assault victims, the mandate of sex offender registry, can provide an added layer of safety, that they and the larger community can rely on. Knowing that they are not moving to, or living in, the same neighborhood as their offender, or other sex offenders can be particularly important to their sense of safety and overall healing. The impact of an automatic expungement program on victim rights and interests, is significant, and equally uncertain, as it relates to sex offender registration requirements and restitution.

We fear that without the voice of victims having some level of representation on the Taskforce, their voices will be all but forgotten. While criminal justice reform can, and does play a vital role in our community, any Clean Slate program, will only inure to the benefit of the offender. We ask this committee to not forget, that many of the offenses being slated for expungement, have a victim on the other side.

The Honolulu Prosecutor argues the State Judiciary already has an expungement program in place:

Describing this effort as “clean slate expungement” would seem to predetermine the outcome. Exactly how expungement takes place would be better left to the task force to study and make appropriate recommendations.

The current law applies to persons who have not been convicted of any crime or who have complied with a court-mandated process for expungement. Executive and judicial review ensure that clemency accounts for individual circumstances. It prevents abuses of this remedy: for instance, to circumvent laws targeting habitual offenders or evade conditions of probation or deferral.

Pahnelopi McKenzie, in personal testimony before JHA adds:

(T)hese are offenses that would be considered in the state’s Domestic Violence Fatality Review (HRS 321-473) and are an important part of the systemic response to domestic violence and preventing future offenses.

Testimony submitted by the Honolulu Police Department points out:

Conviction records expunged in all petty misdemeanors, misdemeanors, and non-violent class C felony cases will drastically affect the ability of law enforcement and prosecutors to appropriately charge defendants and would adversely affect employers and the community from making informed decisions for defendants who had their criminal records expunged.

Members of the proposed task force included in the SD1 version:

1. The attorney general;
2. The chief justice;
3. The public defender;
4. The prosecutors of the county of Hawaiʻi, county of Maui, city and county of Honolulu, and county of Kauaʻi;
5. The chief executive officer of the office of Hawaiian affairs;
6. The administrator of the Hawaii criminal justice data center;
7. The director of the criminal justice research institute;
8. The executive director of the Hawaii Workers Center;
9. The executive director of the ACLU of Hawaiʻi;
10. The chairperson of Hawaiʻi Friends of Restorative Justice;
11. The director of the Beyond Guilt Clinic and Hawaiʻi Innocence Project at the William S. Richardson School of Law; and
12. The director of the Last Prisoner Project.

Just in case that is not stacked enough, the HD1 version adds two criminals, described as “directly impacted individuals with lived experience in the criminal legal system.”

The House version, HB1663 was introduced by Reps Tarnas, Amato, Hussey-Burdick, Kapela, Marten, Onishi, Perruso, Takayama, Takenouchi, most of whom are members of the Democratic Socialists of America.  It was quickly deferred.

SB2706 was introduced by Senator Chris Lee.  As it sailed through the Senate, only Republican Senators Awa and Fevella voted ‘No.’ 

With the Senators' cards on the table, SB2706 crossed over to the House.  On Second Read the votes for the HD1 version were:  Representative(s) Kong, Ward voting aye with reservations; Representative(s) Garcia, Pierick voting no (2) and Representative(s) Saiki, Todd, Woodson excused (3). 

On Third Read the votes were: none voting aye with reservations; Representative(s) Garcia, Pierick, Ward voting no (3) and Representative(s) Souza excused (1). 

House and Senate ‘notices of disagreement’ were filed April 9, 2024.  Conference Committee is the next step.  The bill can be blocked by either Chamber refusing to appoint conferees.

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SB2706: Text, Status