Gov. Parnell's veto of SB 108, which he describes as a "meat cleaver," increases my concern as to his desire to protect our freedoms. Our forefathers did not cross the Atlantic to find soil for their plows, but liberty for their souls. Every Alaskan should take note of this governor's view of their privacy and due process rights, and his distrust of our justice system.
Parnell is willing to sacrifice the privacy and due process rights of over 60,000 Alaskans who have never been convicted of any crime in order to have a tool to "hold prosecutors, defenders, and judges accountable for their actions" and further argues SB 108 would have led to "false conclusions" about persons whose records would be made confidential under the legislation. This is an erroneous, deceptively attractive argument that denies the roles of the Alaska Judicial Council, Alaska Bar Association, and the executive branch who are specifically charged with this responsibility, and that of nonprofit justice advocacy groups like the Alaska Native Justice Center. "False conclusions" about persons wrongfully charged is exactly the point Parnell is inexplicably blind to.
Parnell argues the public's "right to know" that a defendant was charged with an offense is more important than a jury's informed verdict of acquittal for that offense. Only a jury has reviewed all legally admissible evidence in the case, heard all testimony, weighed the veracity of all witnesses, and considered all the arguments.
Since 2004, an online court records website has made all Alaska arrest records easily available to most Alaska citizens. According to Alaska Court System records, in 2013 of 6,675 felony charges filed, 1,289 were dismissed outright. Of 29,562 misdemeanor charges filed, 9,508 were dismissed outright. That's nearly 11,000 Alaskans in just one year who were not convicted of anything, yet will have the record of their arrest/charge up on CourtView indefinitely.
These cases were dismissed for a variety of reasons, including mistaken identity, a lack of evidence, no crime actually committed, false accusation, or police/prosecutorial misconduct. The cumulative effect of these "non-conviction" records being public, is over 60,000 Alaskans now must live with the proverbial "scarlet letter" of an accusation on their records. Although all of us should understand the CourtView disclaimer to "not assume that a defendant was convicted just because a criminal case was filed," it is difficult for us to not have a negative opinion of someone who was arrested for a crime like child molestation, domestic violence, or driving while drunk or stoned. Our office has been contacted by scores of the unintended victims of this provision that keeps court records of persons who are "not guilty" under the law easily accessible to the public.
Just one example -- A longtime Alaska resident told me he was recently fired from a well-paying job after being wrongly accused of and charged with felony theft from a business here in Anchorage. The state of Alaska dropped the case against him when the complaining party found the mislaid property they initially thought the suspect had stolen. This man, an engineer, is now unable to get even menial employment because of a felony theft arrest on his record.
Under existing state law, there is no practical way for an Alaskan to get a wrongful arrest off his or her public record. Current state law requires that the chief executive of the law enforcement agency that originally entered the arrest record certify that the arrest was in error. To the best of our knowledge, this has never happened. We can all imagine the disincentives for a chief executive to acknowledge error in a decision to arrest and charge persons with offenses. There would be a significant risk of civil litigation.
When our office was trying to figure out a "balanced" workaround, we talked to the court system, several judges, and asked Parnell's law department to figure out a solution and even take the lead with a governor's bill to fix this very narrow but important problem. We got great assistance from the court system, the Criminal Justice Working Group, the Alaska Native Justice Center, the Department of Law, the ACLU, and Justice Fellowship. We found that no other state has a single unified court records system. Alaska is on the extreme end of online court records disclosure, posting for public viewing nearly all criminal records. Very few states post all arrest records, and most are starting to pull back what they disclose online because of abuses occurring to thousands of victims of this improper exposure.
Efforts like our SB 108 are going forward in several states. Our own court system, apparently encouraged by the SB 108 effort, took a small but important step to alleviate long-recognized problems with the blizzard of domestic violence restraining orders that are spurious, and the cases that are quickly recognized as "wrongful arrests." The court system is to be commended. Unfortunately, this rule change does not solve the larger problem, as it only addresses a small fraction of persons who are charged with crimes, and later are acquitted or the charges are dismissed as a result of further investigation.
The seminal question is, "Should Alaskans support public record exposure of the arrests of tens of thousands of citizens whose charges were dismissed, or were tried and found not guilty of all charges?" Sadly, our governor seems to not understand the profound assault on American civil liberties and the steps that are being taken in other states to defend our constitutional safeguards against "advocacy industry law-making."
Furthermore, I was shocked to see Parnell's claim that his efforts to work with our office were "rebuffed." This is fundamentally false. We accepted five amendments from his administration:
Most crimes take months to be adjudicated, and felonies generally take well over a year. SB 108 would have allowed all of the related court records to stay online until 120 days after the last appeal was resolved and then a "non-conviction" finding would have been removed from the online records. This means that most arrest records would have been up online for at least 6 months and for serious crimes, for years. Under SB 108 those court records would have still been available to judges, prosecutors, law enforcement personnel, persons charged with protecting vulnerable citizens, and any citizen who could convince a judge that they had a compelling interest in seeing the court records.
We asked the opponents of SB 108, including the Parnell staff, what would be a more appropriate time limit for wrongful and non-conviction arrest records to stay online. One year, five years, 50 years? We got no definitive answer. They believe that the possibility of a future person being saved from a future possible harm justifies the privacy and due-process trampling of over 60,000 Alaskans.
We struggled to figure out who should make that decision. Having considered several alternatives, we were driven to the conclusion that the authors of our state and federal constitutions were correct. We citizens are best protected by being tried by a "jury of our peers." This whole effort has driven us to the irrevocable conclusion that, although there will always seem to be good reasons to trample on our civil liberties, when in doubt we must default to the Bill of Rights and the protection of our precious liberties.
Alaska's elected officials take an oath to protect our constitutions at all costs. In the wind storm of impassioned pressure, media advocacy, and wetted-finger public decision making, civil liberties must prevail.
Fred Dyson, R-Eagle River, has served in the Alaska Senate since 2003, and before that served three terms in the state House.
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