Sentenced by Tradition: the Third-party Custodian Condition of Pretrial Release in Alaska

JurisdictionAlaska,United States
Publication year2009
CitationVol. 26

§ 26 Alaska L. Rev. 317. SENTENCED BY TRADITION: THE THIRD-PARTY CUSTODIAN CONDITION OF PRETRIAL RELEASE IN ALASKA

Alaska Law Review
Volume 26
Cited: 26 Alaska L. Rev. 317


SENTENCED BY TRADITION: THE THIRD-PARTY CUSTODIAN CONDITION OF PRETRIAL RELEASE IN ALASKA


Elizabeth Johnston


Abstract

In Alaska, a third-party custodian is frequently required as a condition of pretrial release. Under this system, a defendant must provide a third party, to be approved by a judge, who will agree to stay with the defendant and take responsibility for the defendant's appearance in court. In this Note, the Author critiques Alaska's use of the third-party custodian requirement. First, she explains the constitutional and statutory requirements that regulate pretrial release. Next, she examines the past and present usage of pretrial release in Alaska, focusing on the original rationale behind the third-party custodian requirements and the impact that the third-party custodian requirement has on defendants. Ultimately, the Author proposes that Alaska develop an independent pretrial services agency that would enable judges to make more effective bail decisions by providing them with relevant information.

Table of Contents

Introduction................................................................................................318

I. Pretrial Release: Laws and Practices........................................321

A. Requirements Under Alaska Law............................................321

1. Constitutional Requirements .................................................321

2. Statutory Requirements .........................................................323

B. Current Pretrial Release Practices............................................324

II. Originally Another Mechanism to Ensure Equal Protection for Indigent Defendants, Now Discriminates Against Them....................................................................................327

A. Statutory History of Section 12.30.020 of the Alaska Statutes, Release Before Trial...................................................327

B. History of the Third-Party Custodian Requirement in Alaska..........................................................................................330

C. The Impact of the Third-Party Custodian Requirement.......332

III. Recommendations...........................................................................335

A. Assistance for the Decision Maker: An Introduction to Pretrial Services Programs........................................................335

B. The Manhattan Bail Project.......................................................337

C. The Viability of a Pretrial Services Program in Alaska.........340

Conclusion...................................................................................................342

Introduction

If you are charged with a felony in Alaska, it is likely that before you will be released on bail you will need to find a person or organization willing to supervise you for twenty-four hours a day. [1] This person [2] must be approved by a judicial officer, which means that he or she cannot have a recent criminal record, must have a home where you can also live, and must otherwise appear responsible enough to report you if you violate the conditions of your release. [3] while most state statutes allow courts to place defendants in the custody of a person or organization, [4] the practice is not used as much elsewhere in the country. [5] In Alaska this is called the third-party custodian condition of pretrial release. It is an onerous requirement that is not being used for its intended purpose. Most people working in the criminal justice system agree that too many defendants are required to have a third-party custodian, and that the third-party custodian system usually fails to serve its intended purpose. [6]

The Alaska bail statute is plainly written to create a presumption of personal-recognizance release. [7] If a judicial officer finds that personal-recognizance is not appropriate because of concerns that the defendant will fail to appear at future court dates or that he poses a threat to the community's safety, then, and only then, can the judicial officer impose further conditions of release upon the defendant. [8] However, the conditions of release must only be those that the judicial officer reasonably believes are necessary to ensure the defendant's appearance and the safety of the community. [9] As will be shown, the third-party condition of release so burdens the defendant, as well as his family and friends, that its use should be decreased. This heavy burden should be considered every time the third-party custodian condition is imposed.

When a defendant is required to find a third-party custodian before he can be released on bail, he will likely spend more time in predisposition incarceration than he would without the third-party requirement. [10] This is problematic because studies clearly show that increased pretrial incarceration often leads to higher conviction rates and longer sentences for the same crimes. [11] Longer pre-disposition incarceration rates raise constitutional questions because a defendant is legally presumed innocent and has a right to bail. [12] Furthermore, incarcerating defendants merely because they cannot find a third-party custodian is an added expense to the State, and exacerbates the problem of prison overcrowding in Alaska. [13] When an accused is incarcerated before trial, he is unable to be as helpful to his attorney in preparing his defense and in helping with any pretrial investigations. [14] In addition, incarcerated individuals typically have lower morale and less energy to fight the charges against them. [15] This has caught the attention of the Alaska Legislature, [16] though at the time of publication no legislation to change the third-party custodian requirement had been introduced.

The bail system must be overhauled to protect accused individuals who have a constitutional right to be released before trial [17] with added statutory protection providing that any conditions of release must be the least restrictive means possible to ensure both the defendant's appearance at future court hearings and the safety of the community.(fn18)Part I of this Note examines the current pretrial release statutes in Alaska and the State's current practices regarding bail. Part II explores the statutory history of the bail statute and the historical use of third-party custodians, and argues that what began as an avenue for providing pretrial release for indigent defendants is now being used as a regular condition of release, thereby stifling defendants' rights to equal protection under the laws. Finally, Part III recommends reforms to bail practice in Alaska. In particular, it advocates that Alaska develop a pretrial services program whose employees will interview defendants and make impartial bail recommendations to judicial officers prior to the defendants' arraignment. The employees could also serve supervisory roles to monitor defendants during pretrial release and to remind them of future court dates. Pretrial services offices already operate around the country and have proven enormously successful at effectively reforming pretrial release practices. [19]

I. Pretrial Release: Laws and Practices

A. Requirements Under Alaska Law

1. Constitutional Requirements

Bail in Alaska is regulated pursuant to the United States Constitution, [20] the Alaska Constitution, [21] Alaska State Statutes, [22] and the Alaska Rules of Criminal Procedure. [23] The Eighth Amendment to the United States Constitution reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." [24] In Stack v. Boyle, (fn25)the Supreme Court defined excessive bail as an amount that is above and beyond what is "reasonably calculated" to ensure the presence of the accused at pretrial court hearings. [26] In Stack, twelve people were accused of conspiring to commit an illegal act of fraud against the United States under the Smith Act. [27] All defendants were required to post bail bonds before their release from prison, but the bond amounts varied greatly, from $2500 to $100,000. [28] Petitioners challenged the bail amounts on the grounds that they were excessive.(fn29)The Court held that bail was excessive as applied to some of the defendants because it was set above the normal bail based on the crime, and the state provided no evidence as to why a higher bail was necessary for those particular defendants to ensure their future presence in court. [30]

The Alaska Constitution contains the same language found in the United States Constitution. [31] The Alaska Constitution also guarantees the right of every accused to be released on bail pending trial, unless he or she is accused of a capital offense, "when the proof is evident or the presumption great." [32] Since Alaska currently does not recognize any crimes as punishable by death, the exception to the right to bail does not currently apply to any defendants in the state. [33] The right of defendants to be released before trial is not one recognized by the united states Constitution, as interpreted by the Supreme Court in Carlson v. London(fn34) The United States Supreme Court in Carlson was asked to interpret the Eighth Amendment to include an enumerated right for...

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