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Alaska's justice system unfair to poor and minorities, but there are solutions

If you are Alaska Native, you are more than three times more likely than a white Alaskan to be imprisoned.

I don't think that's because Natives are three times more likely to commit crimes. The criminal justice system has built-in biases against Natives that compound the unconscious biases of police, prosecutors and judges.

In my last column, I showed how bias could influence key facts in a case, as when Native alibi witnesses were discounted in the Fairbanks Four prosecution, leading to four young men spending 18 years in prison until the state finally dropped its unsupported convictions.

In the column before that, I covered the lack of minorities on Alaska's bench. We have no Native judges.

Today I want to talk about solutions.

Evidence of systemic bias has been around a long time. A study by the Alaska Judicial Council in 1977 found that judges gave minorities longer sentences for the same crimes. But the problem resolved over time with a presumptive sentencing law that took away judges' discretion and with case law developed through appeals of unfair sentences. A later study showed that sentences are generally fair across races now.

That example shows a path. Study what's wrong and design solutions to fix it.

More than a fourth of Alaska's inmates haven't been convicted of a crime. They are arrested and cannot make bail and so wait in jail for trial. Since Alaska Natives tend to make less money -- Native villages have some of the lowest average incomes in the nation -- they have a harder time making bail and spend more time waiting.

Defendants stuck in jail face a huge disadvantage. Their lawyers must make difficult, time-consuming visits just to meet them. For overworked public defenders, the meetings are usually about pleading guilty.

If you can't make bail, pleading guilty is often the quickest way to get out of jail, regardless of whether you committed the crime.

"There's a huge leverage for the prosecutor if the person can't bail out," said Susanne DiPietro, executive director of the Alaska Judicial Council, the agency charged with studying the system. "What are you going to do? You're just going to take the plea. You're in no position to negotiate."

Maybe that situation would make sense if it kept the public safe. But a December report by the Alaska Criminal Justice Commission found that requiring money bail for pre-trial release doesn't reduce crime or increase attendance at court dates. In fact, defendants held more than 24 hours become more likely to get in trouble when released. Jail trains criminals.

In Alaska, the average pre-trial detainee spends 44 days in jail for non-violent felonies, and 16 days for violent misdemeanors. If you're poor, a judge's discretion on bail can decide your fate.

The commission, working with a national campaign by the Pew Charitable Trusts, recommended a new bail system based on research-based risk assessment rather than a judge's gut. Low-risk defendants wouldn't have to put up money before getting out.

Senator John Coghill, R-North Pole, has championed legislation to implement the commission's findings (which go beyond the bail provisions). Coghill said he is pursuing these changes to save money on the Department of Corrections, but the new law would also make the justice system more fair for the poor, who tend to be minorities.

But even if courts were completely fair, Natives would still spend more time in prison if police and prosecutors are tougher on their crimes.

Brad Mystrol, of the University of Alaska Anchorage Justice Center, said his research on three years of cases by the Alaska State Troopers showed that crimes by Alaska Natives were more likely to be referred for prosecution. But analyzing that finding by looking at the circumstances of crimes and investigations suggested complex factors, not simple discrimination.

Mystrol said other research has found that sexual assaults in rural Alaska villages are more likely to be referred for prosecution than the same crime in the city. Having a village police or public safety officer as the first responder also increased the likelihood of a case going forward.

There are plenty of reasons why that could be so, and more research is needed, but I've spoken to police and prosecutors who believe that traditional Alaska Natives tend to tell investigators the truth and admit bad acts. I've noticed something similar as a reporter in Native villages, where people can be much more open than in urban society.

Joe Masters, an Inupiaq, worked as a state trooper in rural Alaska before he became commissioner of public safety in 2008. If someone has done something wrong, he said, "Usually they'll tell you. That's been my experience."

Confessions make for strong cases.

Masters said he hasn't seen racial bias in police or prosecutors and believes substance abuse in rural Alaska is a major part of the cause for the high proportion of Natives in Alaska prisons -- most are there because of incidents involving alcohol.

But the different cultural response to authority could also affect the prison disparity. Masters said a Native suspect who has blacked out from alcohol would often accept responsibility for a crime even if he didn't remember it.

In the Fairbanks Four case, a police detective badgered drunk teenage suspects to convince them they had committed murder using made-up evidence. Two Native boys eventually gave in. Bill Oberly, of the Alaska Innocence Project, said disagreeing was difficult for a young Native suspect raised to respect elders and other authority figures and assume they are telling the truth.

The adversarial legal system doesn't take that into account. It has been imposed on a culture that it doesn't fit.

The justice system doesn't work well for many of us --it is expensive, slow, error-prone, resistant to correction or change, unfair to the poor and preferential to the wealthy. It needs more, deeper study and change.

Rural Alaska suffers horribly from crimes of violence and abuse. We need a new approach to solve that problem that is culturally appropriate, less expensive and more fair.

Charles Wohlforth's column appears three times weekly.

The views expressed here are the writer's and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com. Send submissions shorter than 200 words to letters@alaskadispatch.com or click here to submit via any web browser.

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