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Will Alaska's plea bargain plan serve justice, or cause it to grind to a halt?

Jill Burke
Will Alaska's plea bargain plan result in more fair sentences and less conveyor-belt justice, or grind the system to a halt? Loren Holmes photo

Fairness and accountability can be challenging ideals within the justice system. All of the system's various practitioners aspire to these goals. But plenty can get in the way on the road from good intentions to reality.

When Alaska Attorney General Michael Geraghty last month announced a new policy forbidding prosecutors from cutting deals with defendants about how much jail time they'd face in exchange for a guilty plea, it came on the heels of a high-profile murder case in which the accused killer had been released from jail the same day he attacked and killed an elderly couple and sexually assaulted another elderly woman and toddler.

From now on, it will be up to judges and judges alone to decide how much time murderers, rapists, wife and child abusers -- and any other violent offender -- will do behind bars. Prosecutors still have the freedom to offer the defendant the ability to plead to a lesser charge. But they can no longer offer an agreed-upon sentence as part of the deal.

In interviews with a prosecutor, defense attorney, court staff, a criminal justice academic and the Alaska Judicial Council, it is clear most expect the policy change to increase the workloads of various levels of staff within the criminal justice system. But by how much, and whether it solves more problems than it creates, remains to be seen.

“It's easy to have a knee-jerk reaction to a horrible thing without understanding the big picture,” said Dr. Brad Myrstol, director of the Alaska Justice Statistical Analysis Center at the University of Alaska.

“We don't know yet what exact impacts there will be,” said Nancy Meade, General Counsel for the Alaska Court System. But if the change results in more criminal jury trials, that will have an impact on the court in terms of time, space and workload, she said. If that happens, the Alaska Court System will rely on its staff of retired judges to pick up extra work.

More expensive? 

Disallowing sentence bargains means that it will be up to judges to determine consequences for defendants in what is known as an “open sentencing,” a kind of mini trial in which evidence and witnesses are presented as part of the fact-finding process by the judge before a sentencing decision is made.

Deputy Public Defender Douglas Moody anticipates the new policy will be more expensive. Not only will it require more court time, but also more time from lawyers as well as probation officers who write reports on a defendant's history that are used at sentencing. Moody also suspects the state may see more cases go to trial, since the reason defendants plead is to have some certainty about their fate. Why take a plea deal if there's not much to gain from it?

But, Moody said, there is a potential upside. “If it results in better charging decisions and better screening of cases it may be more cost effective in the long run,” he said.

Sixty percent of the Department of Law's $97 million budget is spent on criminal matters, Geraghty told the Alaska Legislature last spring. In 2012 it handled nearly 40,000 matters, including more than 20,000 misdemeanors and 8,000 felonies.

It took $105 million to run Alaska’s Court System that same year, and $287 million for the Department of Corrections.

'Conveyor-belt justice' 

Myrstol expects all of the units within Alaska's criminal justice system to feel the change. “The fact of the matter is our system is a plea system. It is not [the TV drama] 'Law and Order.' We have conveyor-belt justice. It just is. For better or worse,” he said. “The number of cases coming into the Alaska court system is not going down any time soon. Anything that slows down that system is going to be circumvented. There will be a return to equilibrium.”

Myrstol offered a hypothetical example. If more cases go to open sentencing, corrections officers will have to write more pre-sentence reports, potentially taking time away from their supervision of defendants on probation or parole. And, if the state begins to see more plea bargains where charges are reduced, the implication is less jail time and therefore an increase in people out on the streets and requiring supervision after they leave jail.

There is no way for the state to manage its caseload without plea bargains, he said, adding that if every case went to trial, the system “would absolutely grind to a halt.”

A return to plea bargain bans is criminal justice déjà vu for Alaska. In 1975, then-Attorney General Avrum Gross implemented a ban on plea bargains, prohibiting sentence bargains and discouraging charge bargains. By the 1990s, the ban had been eliminated.

Studies of the ban published by the Alaska Judicial Council found that its impacts weren't as onerous as many practitioners anticipated. Courts processes sped up, defendants were pleading guilty at the same rates, and trials were moved faster -- but the number of trials remained small. Outcomes for violent, serious offenders remained largely the same, and sentences for the less-serious offenders became more severe. By 1991, the state had improved its screening process for cases, perhaps the best outcome of the ban.

Issue of discretion tricky 

Now, in 2013, the plea ban and the system itself are different than they were 30 or 40 years ago. The current ban is only one part of the bargaining process -- the sentencing phase. And, through what's known as presumptive sentencing ranges, judges are no longer free to impose wildly different sentences among people who commit the same crime.

This issue of discretion is tricky. Without limits on discretion, defendants may be subject to the whims of lawyers and judges. But if discretion is restricted too much, there is no room to address human elements among victims and defendants, each with their own unique set of circumstances.

The newest change in plea policy is in line with Gov. Sean Parnell's “Choose Respect” campaign, an agenda to reduce violent crime against Alaska women and families. Having judges thoughtfully review cases and craft punishments within the limits of the state's sentencing guidelines (some of which the Alaska legislature has recently increased) reinforces the notion that violent crime is a problem Alaska is serious about addressing.

The new policy prevents prosecutors from making sentencing deals for serious felonies (violent crimes like murder and assault), sex crimes, human trafficking crimes, and crimes of domestic violence. It also gets the state a step closer to a vision for Alaska courts that former Chief Justice Walter Carpeneti set out in his final state of the judiciary speech in 2012. Carpeneti spoke passionately about the need to implement what he termed “smart justice” -- the practice of measuring out justice not out of anger alone, but with a more holistic approach. Alaska's judges are trained for, ready and willing to embark on difficult sentencing decisions, he said. Yet the system was such that too often judges found themselves signing off on someone else's decisions.

97% of cases resolved by plea deals 

Carpeneti wasn't exaggerating. In the last eight years, the vast majority of cases within the court system -- nearly 97 percent -- were resolved through plea deals, according to statistics compiled by the University of Alaska's Justice Center. In 2012, the state handled 6,274 felony cases.

“Today, in probably 90 percent of our criminal cases, sentencings are largely ceremonial events, where little information is truly debated, the details of a sentence -- down to the terms of probation -- are negotiated by the parties in advance, and the judge's role is minimal,” he said in his address.

Returning sentencing decisions to judges will help achieve Carpeneti's vision, but only somewhat. Freeing judges from pre-set sentencing ranges would have to come next -- a measure the policy change in plea deals does not address. “Smart justice,” Carpeneti explained, aims to reduce prison growth and recidivism, by weighing the effectiveness of actions taken by the court. When possible, the court should be looking for alternatives to incarceration, ones that promote rehabilitation, and do its best to mold the defendants most amenable to change into law-abiding citizens.

“A one-size-fits-all approach over-simplifies the challenge before us. As difficult as it may be to accept, we must ensure that sentencing decisions take the characteristics and circumstances of individual offenders into account -- not just the nature and seriousness of their crimes,” Carpeneti said. “Presumptive sentencing has narrowed the judge's role so much that fashioning a sentence sometimes resembles following an elaborate cookbook more than anything else.”

At his confirmation hearing in early 2012, Geraghty told state lawmakers he had heard Carpeneti's speech and agreed with his sentencing philosophy.

Not a response to recent double homicide

Within nearly two months of the horrific killings 24-year-old Jerry Active is accused of committing, the Department of Law announced its policy change. While it may appear to be a direct response to the high-profile murder case, the state is adamant it wasn't. Active's case may have quickened the implementation of the changes, but plea deal changes had been in the works well before Active was released from jail in late May, according to statements made by Geraghty in announcing the plea ban.

“He decided that it was important to deal with the most serious crimes first,” Svobodny said, explaining that more reforms within the Department of Law are expected to follow later this year.

That Active had been previously convicted of a felony -- a DUI -- was lost on judicial officers who, in 2009, accepted a plea deal for Active in a separate assault case. Had the system worked the way it should have, Active's time in jail might have been lengthened. But there's no way to know if preventing the oversight would have also prevented Active's ongoing pattern of violence.

When asked why the state wanted to take decision-making power away from prosecutors, Deputy Attorney General Rick Svobodny said it came down to trying to “instill common sense into a negotiation process."

Plea bargain reform has been among Geraghty's priorities since his confirmation as attorney general last year, Svobodny said.

“Plea negotiation is a way of trying to solve cases in an expeditious way, a way that saves resources for everybody, and a way that gets as close to justice as state prosecutors can get,” Svobodny said about the shift in policy.

For example, he said, it is wrong for a prosecutor to use plea bargaining as a way to clear her workload so she can go on vacation. But using it as a way to manage caseloads responsibly is a valid way to gain efficiency.

'Not a perfect result' 

“It's a negotiation. It's not a perfect result,” Svobodny said.

Myrstol, the criminal justice data cruncher from the Justice Center at UAA, believes whether policy makers like or dislike sentencing discretion, it is not going away. So the real challenge is in how its managed.

He likens justice system challenge to a water balloon. “If you try to clamp down on one area it just shifts somewhere else,” he said.

Contact Jill Burke at jill(at)alaskadispatch.com