The people of Bethel who advocated for the firing of their district attorney had a valid point about how their fellow citizens have been treated by the state: lumped together into one class of "criminals" deserving of the maximum jail term possible. But they focused their anger on a target too low in the state hierarchy. The Bethel district attorney, like every district attorney in this state, has been laboring under a bad policy decision made at the upper levels of the Department of Law during the Parnell Administration. Getting rid of one local district attorney for enforcing a statewide policy is kind of like getting a Walmart cashier fired because she sold you some thread-bare tube socks.
Back in 2013, Attorney General Michael Geraghty and leaders of Criminal Division like Deputy Attorney General Richard Svobodny -- the man who flew out to Bethel to fire the district attorney -- decided they were going to severely restrict individual prosecutors' abilities to settle their felony cases. Normally, when criminal cases result in a plea short of trial, the parties can negotiate either a deal on the length of a sentence, a reduction of the charges, or both if necessary. But the Parnell administration decided to do away with any negotiations on the length of sentences and restrict prosecutors' authority to agree to a charge reduction beyond one step. In other words, a prosecutor could only reduce a first-degree assault charge down to second-degree assault but no further -- regardless of the strength or weakness of the state's case, or what subsequent investigation revealed about the case.
This blanket policy was imposed after the Department of Law discovered a prosecutor had made an embarrassing blunder in the case of a man who became one of Alaska's most despised criminals: Jerry Active. I'm not going to repeat all of the horrific details of Active's case. Suffice it to say that he terrorized a household, murdering an elderly couple and committing some truly vile sex crimes, on the very same day he was released from the Anchorage jail. Active was released after serving time for violating his probation on an attempted sexual abuse of a minor case.
What made the case embarrassing for the Department of Law was that, after his arrest on these new crimes, it was discovered that Active had been improperly sentenced on his attempted sexual abuse of a minor conviction. At the time he was sentenced for that offense, neither the prosecutor nor the court realized that Active already had a prior felony conviction -- a fact that mandated a lengthier sentence than what he received.
This was simply a mistake: a mistake with tragic consequences, but still just a mistake. From all accounts, the database that prosecutors rely for an offender's criminal history had not been updated to include that prior felony. But instead of taking a more courageous stand and explaining that mistakes, while regrettable, inevitably happen in any human-administered system, the Department of Law decided to make a major policy change based on the error in this one case.
So why is this policy change a problem? It was sold on the theory that any policy resulting in more jail time for criminals like Jerry Active must necessarily be a good thing, even though this particular policy shift did not directly address the mistake that led to Active's illegal sentence. The problem with this theory is that not everyone who gets tangled up in the criminal justice system is like Jerry Active. The department's new policy has prevented prosecutors from treating each defendant as an individual: some much less deserving of harsh treatment than others. Heaping every defendant into the category of "bad criminal" -- rather than treating them as individuals -- leads to patently unfair results, particularly when each class of crime encompasses such a broad scope of behavior.
Take, for example, the crime of second-degree sexual abuse of a minor. The multiple definitions of this offense encompass some behaviors that are deserving of very long jail terms, like the classic pedophilic behavior of a male predator in his 30's having sexual contact with a pre-pubescent child. But a colleague of mine also had a 19-year-old client with fetal alcohol spectrum disorder who had sex with his 15-year-old girlfriend and was charged with this same offense. The girlfriend actually functioned at a higher mental age than the defendant. Should the government treat the teen just the same as the 30-year-old pedophile? For those of you who don't object to the morality of this kind of treatment, remember that a 2013 Department of Corrections report to the Legislature said that in 2012 it cost the state $49,275 to house one inmate for just one year.
A policy that severely restricts the individual prosecutor's ability to negotiate their own cases, based on the people and issues unique to that case, results in the type of overbearing -- and expensive -- government response the people in Bethel were complaining about. It also is essentially disrespectful to the knowledge and abilities of the prosecutors who work for the Department of Law.
No one knows the weaknesses, strengths and peculiarities of any case better than the attorneys assigned to it on either side. But it often takes a while to learn the case: witness stories can change or expand as they are re-interviewed or testify at hearings, physical evidence is developed, lab tests come back, the defendant's background is explored. But the Department of Law's current policy takes away the power to meaningfully negotiate from the frontline prosecutors who develop that intimate knowledge of the case.
In a state that elevates the rights of the individual above all else, a government policy that treats its citizens like a faceless collective does not work. We also just can't afford it. Fortunately, one of the architects of this policy, Parnell's Attorney General Michael Geraghty, is already gone. With his departure, there have been signs that our new attorney general is more inclined to empower his frontline prosecutors. Let's hope that once confirmed, he will rid us of this policy and the rest of its architects once and for all.
Marcelle McDannel has been working in criminal law for almost two decades, both as a prosecutor and as a criminal defense attorney. She currently practices criminal defense statewide. Contact her at marcelle(at)alaskadispatch.com.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.