Arguments heard on new bail provisions

Posted: Sunday, July 04, 2010

ANCHORAGE - A new law making it tougher for some defendants to get bail is illegal because the state constitution guarantees the right to bail for everyone, a lawyer for the American Civil Liberties Union said Friday.

Alaska's constitution only allows for bail to be withheld for defendants in capital cases, ACLU lawyer Tom Stenson said. But the state doesn't have the death penalty.

"The constitution of Alaska says everyone is entitled to bail," Stenson said. "It is one of the things that makes Alaska special."

The result is that certain defendants will wrongly be held in jail until trial, making pretrial detention "look like a sentence," Stenson told the judge.

"It reverses the presumption that someone is innocent until proven guilty," he said.

After considering arguments at a Friday morning hearing, a judge found that one of the five provisions in the new law failed the constitutionality test and granted a partial temporary restraining order to prevent its use in the law passed by the Legislature and signed by Gov. Sean Parnell.

The law, proposed by Parnell's administration, went into effect Thursday.

Superior Court Judge Peter Michalski found problems with a domestic violence provision in the law barring defendants from going to the homes or workplaces of alleged victims.

Stenson raised concerns about the provision in the hearing. What if the workplace was the local town hall of a small town? What if both the defendant and the alleged victim worked at the same facility, for example a large hospital?

Stenson said the judge's ruling leaves the door open for more legal challenges.

The state will ask the Alaska Supreme Court to review the ruling, said Department of Law spokesman Bill McAllister.

"It appears we prevailed on four issues, so it is not all bad news," he said.

Parnell began a push for the new law in January to address huge problems of domestic violence and sexual assault in Alaska. The law outlines five provisions judges need to consider when granting bail in certain felony cases.

The complaint says the bail bill "eviscerates the constitutional right to bail" for defendants accused of any number of felonies.

Stenson cited a story that appeared in the Fairbanks Daily News-Miner Friday about two people who were denied bail under the new law. But the judge said too little was known about those cases to know whether they were relevant to the ACLU lawsuit.

The lawsuit was brought by the Alaska Association of Criminal Defense Lawyers and three individual lawyers, including Rex Butler of Anchorage.

Butler said one of his clients was wrongly denied bail in Palmer Superior Court Friday morning on a methamphetamine charge. The judge cited the new law in denying bail, said Paul Tony, a lawyer who attended the hearing by telephone.

Butler said his client's alleged crime occurred before July 1. The law only applies to crimes occurring after the law went into effect, Stinson said.

A provision requiring a minimum $250,000 bail for people charged with making methamphetamine who have a prior conviction also doesn't apply to his client, Butler said.

"This is what I'm talking about," Butler said. "We are the ones who have to explain to these people that your constitutional rights are being infringed."

Assistant Attorney General Ann Black argued that the criminal defense lawyers have no standing to ask for the temporary restraining order. She said that would better be left to an individual who actually had been denied bail.

"The plaintiffs have no harm they are alleging of their own," Black said.

She pointed out that if defendants feel they have wrongly been denied bail they can go to the Court of Appeals for a review.

But Stenson said unconstitutional bail restrictions are being imposed now.

"You can't pay them back for the time they spend in jail," he said.

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