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: A Public Defender's Life in Alaska

So, Alaska gets a new bail statute on July 1, 2010. It has some problems. I can hear the DA's now. Howling that we scumbag defense lawyers are making meritless arguments. Or as a DA in a recent trial put it, "the Constitution blah blah blah". I am not kidding. He won that argument too. God this job is hopeless. Anyways, back to the bail statute. I won't bore you with too many details. And rest assured I am not giving away any secrets..I am sure the State knows that the Defense plans on challenging the new law. Well, I am at least. Because it is bullshit. Here is the basic problem: The Alaska Constitution states that "an accused is entitled . . . to be released on bail, except for capital offenses when the proof is evident or the presumption great." Alaska Const., Art. I, Sec. 11. Pretty basic right? But the new law mandates that for a wide group of defendants the court should presume, subject to rebuttal by the defendant, that no amount of bail and no conditions of release will ensure the appearance of the defendant and protect the victim and the public. Thus the new law will impermissibly negate the Alaska Constitution and deny bail entirely to many defendants, while imposing on them the burden to refute the denial of bail. The Alaska Supreme Court has held that the outright denial of bail violates the Alaska Constitution in Martin v. State, 517 P.2d 1389 (Alaska 1974) (holding that the refusal of bail to a person arrested on a charge of forgery who had three outstanding cases of forgery against him violated both Alaska statutes and Article I, Section 11 of the Alaska Constitution). I can hear the arguments now.....that these "dangerous" people should be held without bail anyways. Well two problems. First, of course, is the presumption of innocence. Second, look at the language of the Alaska Constitution. Even defendants in capital offenses should generally be eligible for bail unless "the proof is evident and the presumption great". But now, there are whole classes of people who will be denied bail, including those arrested for an unclassified felony, class A felony, sexual felony, or felony DUI or felony refusal; a Felony against a person under AS 11.41, having been previously convicted of a felony against the person and less than 5 years have elapsed between the person?s unconditional discharge on the prior offense and the commission of the new offense; a Felony offense committed while on bail release; A crime involving domestic violence (felony or misdemeanor), if the person was convicted within the previous five years of a crime involving domestic violence and those charged with being a fugitive from justice. Sigh. There are other problems too. Lots of them. We will deal with them in due course. But that is what the State does.....take and take and take rights while convincing the People that the approaching cattle cars are not for them. Bail is a basic right. Anyone can be arrested. That is why we have a process. I know there are those out there that think we should live in a place where the police can decide to just execute the guilty. But for me, I prefer the reasoning inStack v. Boyle, 342 U.S. 1: "This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.". I guess it has lost its meaning as of July 1. Welcome to Alaska.

Full post as published by A Public Defender's Life in Alaska on June 18, 2010 (boomark / email).