On a gray day in November, many of Juneau’s top lawyers gathered in a jury room within Dimond Courthouse. The district attorney was there, as was the city’s top lawyer. Defense attorneys sat next to prosecutors in neatly arranged chairs normally inhabited by jurors.
Their mission was to get ready for a change in the way Alaska handles criminal bail. That change arrives Jan. 1.
“It’s a fundamental sea change in the way judges will be making their decisions on bail,” said Nancy Meade, general counsel of the Alaska Court System to the assembled attorneys.
When someone is charged with a crime, they will no longer have to pay cash to get out of jail before their trial. Instead, the state will judge each accused criminal under a point-based system that considers how likely they are to show up to court appearances or commit a new crime. They’ll still be monitored, but they’ll be able to go to work, and the state won’t have to pay for their jail time.
“More people will be out, but more people will have supervision,” Meade explained.
It’s a change that has been in the works for almost two years, ever since lawmakers passed Senate Bill 91 in 2016. It arrives with the new year.
Here’s how it works.
Each suspect gets two grades. One details how likely they are to show up in court. The second estimates how likely they are to commit another crime if they’re released.
The first grade, called the “Failure to Appear Scale” runs 0-8 points. Anything from 0-4 points is considered low risk. Anything 7-8 points is high risk. A suspect gets points based on how frequently they’ve failed to appear in court in the past few years, whether or not they’re booked on a property crime or motor vehicle crime, and how old they were when they were first arrested.
The second grade is called the “New Criminal Arrest Scale” and it runs 0-10 points. Any score 0-5 points is low risk, and a 10-point score is a high risk. Points are awarded for how many times the person has been arrested or convicted in the past few years, how many times they’ve been on probation, how many times they were jailed, and how old they were when they were first arrested.
The score is compiled by Alaska’s Division of Corrections when someone is arrested. It’s delivered to the judge, defender and prosecutor. Based on that score and the crime the person is charged with, they can be released from jail, released with conditions, or not released at all.
A person with a low risk score charged with a misdemeanor can be released with few if any conditions. Someone charged with a major felony and the same risk score might not be released or might be released only under severe restrictions. A new branch of the Alaska Department of Corrections will monitor those who are released.
The scores aren’t absolute. Prosecutors and defense attorneys can argue for or against particular conditions of release, based on the crime or circumstances.
“Prosecutors and defense attorneys do play a very important role in presenting that information at arraignment,” said Leah Van Kirk, the pretrial division’s supervisor for Southeast Alaska.
Money and fairness are the reasons for the change.
Alaska’s existing system of pretrial release is based on money bail. If someone cannot afford the bail amount set by a judge, he or she stays in jail until trial. A study conducted in 2015 by the Pew Charitable Trust and the Alaska Judicial Council found that led to inequal outcomes. Defendants from poorer areas of the state were more likely to plead guilty to crimes and more likely to stay in jail until trial. There was also a racial disparity, possibly linked to the well-known racial economic gap in Alaska and the United States. White, Hispanic and Asian defendants were much more likely to be released before trial than black or Native defendants.
Further studies concluded that keeping nonviolent offenders in jail before trial boosted prison costs and reduced the chance that a person — even if found innocent at trial — could return to normal life. In many cases, they had lost their jobs and homes, and returning to crime was the easiest path to subsistence.
The state has spent the past two years spinning up a new branch of the Department of Corrections to get ready. It hired dozens of people and opened offices across the state. Even with that expense, the new way of doing things is still expected to be cheaper than the old way. That was the experience in Kentucky, and in other places that have tried similar programs.
“It’s been done in various places, and you can measure the impact of this, that people are safely released. You can measure their rates of both failure to appear and committing new offenses,” said Quinlan Steiner, the state’s top public defender. “This should enhance public safety and fairness and the credibility of the justice system.”
• Contact reporter James Brooks at email@example.com or call 523-2258.