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Alaska defense lawyers sue state over new bail law

  • Author: Megan Holland
  • Updated: September 27, 2016
  • Published June 30, 2010

Alaska criminal defense lawyers filed a lawsuit against the state Wednesday asking for a court order putting a hold on a law scheduled to take effect today that the suit contends would curtail the rights of a person accused of a crime from being allowed out on bail.

The lawsuit, filed in state Superior Court in Anchorage, calls the new bail laws unconstitutional.

"It eviscerates the constitutional right to bail for a large class of defendants," the suit says. "It allows for the imposition of bail conditions that can only be viewed as punitive and an attempt to turn pretrial release into a pre-probationary period."

The American Civil Liberties Union of Alaska filed the lawsuit on behalf of the Alaska Association of Criminal Defense Lawyers and several Alaska attorneys.

The state Legislature passed the bill in April and Gov. Sean Parnell signed it into law in May, with an effective date of today.

Among the elements of the new law is a shifting of responsibility in the courtroom when it comes to arguing for bail. Specifically, an accused person will now have to present evidence to the judge that certain bail conditions will ensure his appearance in court and will ensure community safety. Defendants who can't prove that they should be out on bail will be automatically held without bail until trial, the lawsuit says.

Up until now, the burden of proof has been on the prosecutor to show that a defendant needed to be behind bars until trial.

"A wide variety of persons are summarily required to defend their liberty interests, and the State need not provide any compelling argument as to why these defendants are a risk to the community or unlikely to appear for their trial," the suit says.

A person accused of a crime is entitled to be released on bail, except in homicides where the "proof is evident or the presumption great," according to the Alaska Constitution. The right to bail gives the accused the freedom to prepare a defense. It also ensures that the person is not punished for a crime that he or she is merely accused of.

Among the new bail law's other elements:

• Those accused of manufacturing methamphetamine will face a mandatory $250,000 cash bond if the person has previously been convicted of a crime involving meth. But if the accused can prove his role in the new charge is minor and that he wasn't making money off the manufacturing, then the $250,000 cash bond rule doesn't apply.

The problem with this, the suit says, is that the accused would have to admit guilt in the new crime in order to avoid the $250,000 cash bond.

• A judge can order someone out on bail to take medication. (Forced medical treatment has a contentious history in Alaska.)

• A judge can order a person out on bail to work or look for work. The lawsuit says an accused has the right to choose what to do with his time.

• The previous law said that after someone is arrested the accused person must be brought before a judge within 24 hours. The new law would extend that to 48 hours.

Lawyers for the state could not be reached immediately for comment on the lawsuit.

The ACLU is asking the courts to intervene and table the new law until the courts can look at it and decide if it violates existing Alaska law.

Find Megan Holland online at adn.com/contact/mholland or call 257-4343.

By MEGAN HOLLAND

mholland@adn.com

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