When I was a young prosecutor handling misdemeanors, the lowest level of criminal offenses, one of my colleagues who fancied himself a mentor gave me a piece of advice: These cases are won or lost at bail hearings. What he meant was that if you can convince the courts to keep bail high enough so defendants have to stay in jail while their cases are pending, they are far more likely to take a plea deal -- whether or not they've actually committed the crime.
The coercive effect of pre-trial incarceration is particularly potent for people charged with misdemeanors and low-level felonies. Since convictions for these crimes rarely require sentences with much jail time, the prosecutor can tempt with an offer of freedom tantalizingly within reach. If the case is particularly weak or problematic for the state, the prosecutor can dangle the "time served" offer: Plead guilty and go home today. When a person has a family, a job they'd like to keep, or just doesn't care for the no-frills hospitality of the Department of Corrections, this can be almost impossible to resist.
For the past decade, the Department of Law, with the help of governors and legislators, has been on a crusade to change Alaska's bail laws to make it easier for its prosecutors to keep people in jail pre-trial. It's been very successful. Our pre-trial prison population has grown 80 percent in the past decade. During that time, the Department of Corrections' operating budget almost doubled from $184 million in fiscal year 2005 to $327 million in fiscal year 2014.
The problem is that the Department of Law chose to make people's access to cash the determining factor in whether or not they sit in jail until their case concludes, rather than the danger they present to the community. People charged with non-violent misdemeanors -- crimes like shoplifting or criminal trespass -- make up 50 percent of all prison entries. Our bail statutes overtly discriminate against the poor.
In 2010, for example, the Department of Law championed a bill that eliminated the ability of people charged with a crime to ask a court to reconsider their bail because they couldn't afford to pay it. Most legislators were happy to sign off on this bill without a second thought. To the few who expressed any concern, Department of Law representative Sue McLean offered assurances that prosecutors would not abuse the harsher bail statutes. She told the House Judiciary Committee that "in the vast majority of cases the prosecution agrees to release, they agree to release (on) own recognizance, on simple conditions like 'Don't drink alcohol,' or maybe, if you're a 19-year-old, that you not be around anywhere where there is alcohol because legally you can't be anyway. That's the vast majority of cases and this doesn't change that."
Anyone who works in the criminal justice system knows this statement is laughable. Last year, the nonpartisan Alaska Criminal Justice Commission surveyed 384 court case files from Anchorage, Fairbanks, Juneau, Bethel and Nome and collected data on bail. It found that only 12 percent of defendants were released on their own recognizance, meaning they didn't have to post any bail, and an additional 10 percent had unsecured bail that did not require a cash deposit. In fact, 40 percent of those in this sample were never released on bail conditions until the conclusion of their case.
But in addition to unfairly strong-arming lower-income folks into guilty convictions, studies have found that keeping non-violent offenders in jail before trial actually results in less public safety. According to the Alaska Criminal Justice Commission, researchers have found that "low-risk defendants who are detained for more than 24 hours experience an increased likelihood of failure to appear and new criminal activity during the pretrial period." That same study also discovered that "being detained for the entirety of the pretrial period is associated with an increased likelihood of new criminal activity" after the case is over.
This makes sense. If someone is working at an hourly job with no paid leave, being stuck in jail for more than a day will probably get that person fired. With no job, they will lose their housing. They and their family may find themselves thrust out on the street with no resources. The person's whole life is upended -- even before they've been found guilty of any crime. In fact, other states have found that releasing these folks without cash bail, either on their own recognizance or through an unsecured bond, is actually more effective, both in getting them to show up to court and in keeping the community safe.
Fortunately, the Alaska Legislature is considering new laws, in the form of Senate Bill 91 and House Bill 205, that would revise our discriminatory bail statutes. They would allow judges to reconsider bail if a person can't afford to pay it, and would implement a system of pre-trial release based on an objective assessment of a defendant's risk to the community rather than on access to money.
Even in the midst of all the budget battles, this legislation needs to pass. SB 91 and HB 205 are probably the only bills pending in the Legislature this year that will both save the state millions and actually improve the lives of some of our fellow citizens.
Marcelle McDannel has been working in criminal law for almost two decades, both as a prosecutor and as a criminal defense attorney. She currently practices criminal defense statewide. Her crime fiction blog can be found at askmsmurder.net.
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