Senate Bill 108, introduced by Sen. Fred Dyson, provides a simple and sensible answer to an important question: What should happen with the record of a state court criminal case when no convictions were obtained and the case is now closed? More specifically, when a defendant was acquitted of all charges in a case, or when all criminal charges in a case have been dismissed by the prosecutor, or when a defendant was acquitted of some of the criminal charges in a case and the remaining charges were dismissed.
Under the current language of SB 108, the approach is straightforward. Four months after such a case is closed, the court record is designated as confidential. This means, simply, that the court record is no longer offered for general public viewing.
In many states, expungement is an available remedy for a nonconviction record, but Alaska does not have an expungement statute. SB 108 provides a less drastic remedy than expungement. SB 108 would not require the destruction of court records. Nor does it impede or unnecessarily burden law enforcement.
Does a court system have an ongoing obligation to continually publish on the Internet the existence of a nonconviction record and allow unrestricted public access to the record long after it is closed? No. The fact of an arrest or charge, without conviction, is not evidence and not admissible to prove wrongdoing. The Legislature has long recognized that not every piece of court-maintained information is accessible by the general public. Not probate records. Not adoption records. Not records of civil commitment proceedings concerning the decision whether to institutionalize mentally ill people.
How often does it happen that a criminal case filing ends with a dismissal and no conviction? More frequently than you might imagine. According to the Alaska court system, approximately 7,563 misdemeanor and 945 felony cases were dismissed by state prosecutors in FY13. In addition, approximately 100 felony and misdemeanor cases were closed as a result of acquittals.
The reason for making nonconviction court records confidential is a good one. It avoids an unnecessary risk of harm to a person. Even though we all know it should not make any difference, just the information that there once was a criminal accusation can limit a person's economic opportunity and severely damage a reputation. Making such records confidential, by contrast, provides a meaningful end to a criminal process.
Perhaps there is no better illustration of the personal impact of criminal litigation for us Alaskans than the case of Sen. Ted Stevens. After 41 years of faithful service, he was charged with crimes and convicted. His conviction was later thrown out because of prosecutorial misconduct, and the case was entirely dismissed. Let's suppose for a moment that Sen. Stevens had been charged in state court. Even after a dismissal of all charges, public court records would forever list him -- really, brand him -- as a "criminal defendant." Why is that fair? Why should any citizen be treated that way for all time when the government has closely evaluated the evidence and seen fit to dismiss the charges, or when a defendant has been acquitted?
Taylor Winston, an employee of the state Office of Victims' Rights, recently wrote in Alaska Dispatch concerning SB 108. Ms. Winston opposes the idea of making closed nonconviction records confidential for reasons stated in her column on April 9, 2014. Under such a theory of justice, however, a person once charged of a crime should be forever considered "not innocent," even though prosecutors and courts lack any constitutional authority to make such a determination. Neither prosecutors acting alone nor a grand jury has a "good enough" fact-finding process such that their indictments should forever stand as public monuments. Let's remember that a grand jury meets in secret with the prosecutor, and that the accused and his lawyer aren't allowed in. Not only did the Founding Fathers reject the Star Chamber as a means of determining criminal responsibility, they also imposed no continuing penalty, no loss of privilege and certainly no lifetime loss of privacy for those who had been once charged but not convicted of a crime.
Ms. Winston argues that the information provided on the court's electronic website (showing information on open and closed criminal cases) is "objective" and provides information the public can use to protect itself. In a letter she submitted to the Legislature, she provided an example: She said she would check the website to help make a decision on a babysitter. This is a great example as to why SB 108 should be enacted. The website warns the reader as to its unreliability and prejudicial effect and yet people still rely on it, presumptively, for divining someone's trustworthiness.
A zealous advocate, Ms. Winston seems genuinely concerned, but her dire prediction that "victims of domestic violence, sexual assault, and child sexual abuse, and our communities will suffer" under SB 108 is certainly not justified by the very modest reach of this bill.
Senate Bill 108 would not block any police, prosecutor or judge from access to closed nonconviction court records. Any party to a closed case still has automatic access. Because Alaska's statutes and its constitution now also require the criminal justice system to accommodate the rights of crime victims, it is almost certain that a complaining witness would also have automatic access. Access by any other individuals can be obtained with the written permission of the court if the court finds that the requestor's interest outweighs the potential harm to the person or interests being protected. In making this call, the court will consider (1) risk of injury to individuals; (2) individual privacy rights and interests; (3) proprietary business information; (4) the deliberative process; or (5) public safety. Finally, it should be noted that SB 108 does not impose any burdens of secrecy or non-publication on persons or companies who obtain the record.
Senate Bill 108 is a neat, nifty way to be fair to defendants whose cases are entirely dismissed -- like Sen. Stevens -- without undermining law enforcement or prosecutorial functions. Let your state representative know that SB 108 should pass.
Currently a stay-at-home mom, Mary Geddes is an Alaska attorney with 28 years of criminal law experience.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch, which welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com.