SB 91 goes into effect Monday, changing Alaska's criminal bail system

Starting Monday, the courts will have a new tool designed to predict the behavior of defendants before their trials.

The tool, developed for Alaska by Massachusetts consultants under Senate Bill 91, is supposed to help judges assess whether defendants will show up for hearings if released on bail, or would pose a risk to victims or the community if allowed to leave jail.

The use of the assessment tool was mandated by the criminal justice reforms in SB 91 of 2016 and left intact by legislative modifications to the bill prompted by a public outcry that the reforms coddled criminals.

The tool will be administered by another creation of the 2016 law, the $10.2 million Pretrial Enforcement Division of the Alaska Department of Corrections. Megan Edge, the spokeswoman for the department, said the state’s 60 new pretrial officers, and others trained for that duty in local police departments and parole offices, are charged with monitoring defendants released before trial.

“Nobody’s actually been supervising those people released in the pretrial phase to make sure they’re following their conditions of release,” Edge said. That officially changes Monday with the assessment tool and the new pretrial officers.

The Alaska Constitution guarantees that defendants can be released on bail for all but the most serious charges. But tough conditions set by judges have put bail out of the reach of some of the state’s poorest residents, many of them racial minorities. The result has been that some of those people sit in jail unable to put up a bond while the state is forced to house them — at an average cost of $158 a day, Edge said.

“There are people who can’t make $500 bail,” Edge said. “After a week, we may as well have paid their bail.”

The new assessment tool was developed for free by the Boston nonprofit, Edge said. It scores defendants on how likely they are to flee or to hurt their alleged victims or the community at large. If they score in the low range and not charged with serious crimes, the law requires they be released without bail.

One of the key reasons behind Senate Bill 91 was the state’s growing prison population, including thousands held before trial.

As of Friday, 2,231 unsentenced men and women were being held behind bars, Edge said. The assessment tool, by its use of statistics and data, isn’t supposed to replace a judge’s ruling on bail, but provide additional information to a judge. It’s supposed to be racially neutral, reducing the likelihood that bias could creep into a judge’s decision, even unconsciously.

Tara Rich, legal and policy director of ACLU Alaska, said the civil rights group will be monitoring the implementation to ensure that it is done without illegal bias. For instance, the new assessment gives a negative mark if the person had been arrested as a youth, which could target racial minorities who may be subject to intensive policing.

“It’s really difficult to tell whether it will violate someone’s rights,” she said. That can only happen by detailed study over the next months, she said.

She also said the ACLU will monitor the aspect of the law which makes it a misdemeanor to violate conditions of release. Under the law, a person could be charged for violating those conditions even if the original charge is dismissed.

“You can really multiply your charges quick quickly for essentially the same conduct,” Rich said.

Edge said the 60 new pretrial officers will have the power to arrest a defendant who has violated conditions of release. The officers were trained in the use of police weapons and handcuffs, she said.