State prosecutors will no longer negotiate plea deals for lesser sentences for Alaskans accused of serious crimes and domestic violence, the Alaska Department of Law said Tuesday.
The change of policy, which took effect Tuesday, bars plea bargains involving sentences for the most serious classes of felony cases, as well as all cases involving sexual assault, sexual abuse of a minor and domestic violence, said deputy attorney general Richard Svobodny.
A plea bargain is an agreement between a prosecutor and defendant in which the defendant agrees to plead guilty in exchange for a lesser charge or a more lenient sentence, avoiding a trial.
Nationally, between 90 and 95 percent of all criminal cases are settled through such agreements, according to a 2011 U.S. Department of Justice study. Attorneys say the statistic is roughly the same in Anchorage.
Under the new policy, prosecutors can offer defendants the opportunity to be charged with a less serious crime. But they can't offer a deal that changes the length of a sentence. Only a judge can do that.
The idea is that judges should be the ones determining sentences, not prosecutors or defense attorneys, Svobodny said.
Attorneys say the policy could flood already-stretched courts with criminal defendants exercising their right to trial and generate huge new costs for prosecution and incarceration, which would eventually be borne by the public.
"It's a major decision that's going to affect system-wide daily business in Anchorage courts," said Chester Gilmore, an Anchorage defense attorney.
"Our model of criminal justice initially started with judges making those sentencing decisions and it should be handed back to them," he said.
The change comes in the wake of a state review that shows prosecutors botched a 2009 plea deal involving accused killer Jerry Active. Active is the 24-year-old Togiak man accused of killing an elderly Cambodian couple -- Touch Chea and Sorn Sreap -- in their Mountain View apartment in May. He also is accused of sexually assaulting three generations of the family, including Sorn, a toddler and a 90-year-old woman.
Active had spent much of his adult life in the correctional system before the killings, which took place on the same day he was released from his latest stint in jail.
A state review found that prosecutors made an inappropriately soft plea agreement with Active in a 2009 case after failing to recognize that he had already been convicted of a felony, Attorney General Michael Geraghty said in June. A judge and the Department of Corrections both failed to recognize the plea agreement mistake.
The Active case became "part of the mix" in the decision to announce the new policy now, Svobodny said, although a change had been under discussion in the law department for more than a year.
"It's hard not to see this as a reflection of Jerry Active and that horrible tragedy," said Gilmore, a former attorney and supervisor with the Alaska Public Defender Agency who is now in private criminal defense and civil litigation practice.
Another influence was Gov. Sean Parnell's "Choose Respect" campaign. Parnell's office "worked closely" with the Department of Law on the change, said a spokeswoman.
The "Choose Respect" campaign has emphasized the prosecution of sexual offenders and domestic violence perpetrators. "We feel the policy will better protect victims and ensure perpetrators are held accountable for their crimes," Parnell spokeswoman Sharon Leighow said.
Both prosecutors and defense attorneys say the rule will inevitably lead to more trials.
Plea bargains aren't always appropriate but in many cases prosecutors and defendants agree they are the best way to resolve a case quickly and fairly, Gilmore said. The policy "takes away a lot of the reason anyone would have for not going to trial," he said.
"Obviously it will have an impact on the courts," Svobodny said.
In 1975, Alaska's then-attorney general banned all forms of plea bargaining. Dire predictions of system overload didn't pan out, though misdemeanor trials increased substantially in the immediate aftermath of the ban, a 1977 Alaska Judicial Council study found.
A 1990 judicial council study found that the ban had eroded and the practice was again commonplace.
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