Legislature(2013 - 2014)BELTZ 105 (TSBldg)
02/28/2014 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB136 | |
| Confirmation Hearing | |
| SB108 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| = | SB 136 | ||
| = | SB 108 | ||
SB 108-LIMIT PUBLIC ACCESS TO CRIMINAL RECORDS
1:47:09 PM
CHAIR COGHILL announced the consideration of SB 108. "An Act
relating to the confidentiality of certain records of criminal
cases; and providing for an effective date." This was the second
hearing.
1:47:20 PM
SENATOR DYSON, Alaska State Legislature, Juneau, Alaska, sponsor
of SB 108, introduced the legislation speaking to the following
sponsor statement:
SB 108 seeks to strengthen privacy and liberty
interests of persons by designating confidential (as
defined in Administrative Rule of Court 37.5) certain
court records associated with dismissed and acquitted
charges. SB 108 would make court records of a criminal
case confidential if 90 days have elapsed from the
date of acquittal or dismissal, and 1) the person was
acquitted of all charges filed in the case; 2) all
criminal charges against the person have been
dismissed; or 3) the person was acquitted of some of
the charges in the case, and the remaining charges
were dismissed.
SB 108 does not pose any restriction to police and
prosecution ability to access arrest records and
charging documents. It does not remove information in
the federal National Crime Information Center (NCIC)
database, or in the Alaska Public Safety Information
Network (APSIN) state database, and would not render
information already in the public domain confidential.
CourtView, the Alaska Trial Courts online publicly
accessible database, provides exceptional access for
persons seeking information on the status of criminal
and civil cases, the nature of criminal charges filed
against persons, and the final outcome of litigation.
CourtView indefinitely shows arrest and charging
documents for persons who were never convicted or
incarcerated, and is an unrestricted site allowing
anyone to use the database to screen any person, for
any reason. In spite of CourtView user warnings that a
charge is not to be considered a conviction, this
public posting of a person's name and charges has had
significant deleterious effects on employment
prospects, ability to find housing, and other
professional and personal opportunities of many
Alaskans.
By very definition, a person is not a criminal if
acquitted at trial, or if their case is dismissed by
the prosecution and not refiled in a timely manner. In
American jurisprudence, we are all to be considered
innocent until proven guilty. SB 108 strengthens this
maxim of presumption of innocence by treating as
confidential court records associated with dismissed
and acquitted charges.
SENATOR DYSON noted that at the request of the Department of Law
he would probably bring a committee substitute to modify the 90-
day timeline to 120 days.
1:51:31 PM
CHAIR COGHILL opened public testimony.
1:51:41 PM
NANCY MEADE, General Counsel, Administrative Staff, Alaska Court
System, said the court has no position on SB 108 but the court
could implement the legislation. She began her testimony by
distinguishing between "confidential" records and "sealed"
records as defined by court rule. She explained that
confidential records are restricted to the parties to the case,
the counsel of record, people with a written court order
authorizing access, and court staff for case processing
purposes. She further explained that sealed records are less
common and extremely restrictive; access is limited to the judge
and somebody authorized by written court order.
She said that SB 108 will make certain records confidential
after they have been public for a time period. They will have
been posted on CourtView and then removed after the case is
dismissed or the person is acquitted. The paper record will be
designated confidential and the person's name will be removed
from CourtView. She discussed how these cases are different from
juvenile cases and child in need of aid (CINA) cases that are
confidential by statute. Cases that are confidential by statute
are never posted on CourtView or available to the public in
paper form.
MS. MEADE addressed an earlier question from Senator McGuire
about cases where somebody is arrested but there isn't a
subsequent charging document. The process when somebody is
arrested, in the middle of the night for example, is that the
arresting officer has discretion to take the person to a 24-hour
court that has a magistrate to have bail set or to take the
person to jail. Anyone who enters jail at night is arraigned the
next day and, for administrative purposes, the court assigns a
case number before the person is transported for arraignment.
That next day it could be that the Department of Law decides not
to file a charging document.
MS. MEADE said she believes that is the case that Senator
McGuire referenced and SB 108 does not directly address those
situations. However, the Alaska Supreme Court is currently
considering a draft court rule to remove from CourtView those
cases that have no charging document but had a case number
assigned for administrative purposes. She reported that the
court is also considering another situation for removal from
CourtView by administrative rule. These are cases involving
domestic violence protective orders where a judicial officer
finds at the initial hearing that the petitioner either was not
a victim of domestic violence as defined in the statute or was
not a household member so that it could be a domestic violence
case as defined in the statute.
1:59:48 PM
SENATOR DYSON asked her to share the data regarding felony and
misdemeanor cases and the numbers that were dismissed.
MS. MEADE cited statistics for the last fiscal year that
represent the number of cases that would be covered by SB 108.
About 20 percent of the 6,000 some felony case filings were
completely disposed by dismissal or acquittal: 1,289 cases were
dismissed and 39 cases were acquitted. About 32 percent of the
nearly 30,000 misdemeanor case filings were disposed by
dismissal or acquittal: 9,508 cases were dismissed and 57 cases
were acquitted. She recapped that those cases would be made
confidential in paper and electronic form. They would not be
visible on CourtView, but because of the definition of
"confidential" they would be available to the parties and
counsel. She added that her understanding is that they would
still be in the Alaska Public Safety Information Network
(APSIN).
2:01:57 PM
CHUCK KOPP, Staff, Senator Fred Dyson, sponsor of SB 108,
clarified that the exact language in the bill says that those
charges would not be on CourtView if a person in a case was
acquitted of all the charges. If a person pled to any one of a
number of charges, the person's name and all the charges would
be on CourtView.
MS. MEADE agreed.
2:03:10 PM
NORMAN MEANS, MD., representing himself, said he was speaking as
the father of Nancy Means. He related her story, which Senator
McGuire described in the 2/24/14 judiciary committee meeting. In
late 2011 his then 18-year-old daughter borrowed his van to go
with younger friends to do some Black Friday shopping in
Anchorage. On the way home at about 3:30 a.m. the van became
disabled in the middle of Tudor Road. An Anchorage police
officer stopped and after Ms. Means explained the situation he
used his car to push the van onto a side street. He then began
to conduct a traffic stop. She provided the license, insurance,
and registration documents that were all in order. When the
officer asked Ms. Means for her personal phone number she
balked, and he became more aggressive in his questioning. She
asserted her constitutional right to remain silent and have an
attorney. She was subsequently arrested, handcuffed, and taken
to the jail. Search of her person and vehicle found no illicit
items, but the vehicle was impounded. She was tested at the
Anchorage jail and the officer at the jail reported that Ms.
Means did not appear to be under the influence of any legal or
illegal drugs or alcohol. The Data Master blood alcohol content
(BAC) meter yielded a .000 reading. The testing officer at the
jail contacted the arresting officer and asked if he wanted to
"unarrest" Ms. Means, but he declined to do so. The magistrate
released her on her own recognizance.
DR. MEANS reported that five separate departments of the
Municipality of Anchorage have reviewed the circumstances
surrounding the situation and have found fault with the
officer's actions. He said the municipal prosecutor's office
dropped the case without filing formal charges, but his daughter
still has a record on CourtView showing that she was arrested
for a criminal act. To right this and similar wrongs Senator
McGuire introduced SB 180, and it led to his approaching Senator
Dyson to discuss the situation.
DR. MEANS relayed that with the two-year statute of limitations
approaching, his daughter approached municipal attorney Wheeler,
through counsel, to try to get her records sealed. The response
from the municipal attorney shows how damaging an arrest can be,
he said. In a letter sent to counsel, Mr. Wheeler said, "While
the officer may not have had probable cause to arrest her for
DUI, he had probable cause to arrest her for some crime." Dr.
Means said he is speaking in support of SB 108 because it will
address wrongs and hopefully restore justice to a system that
hasn't treated his daughter very fairly.
SENATOR DYSON asked if he got his van back.
DR. MEANS said yes.
2:12:38 PM
MARY GEDDES, representing herself, Anchorage, Alaska, testified
in support of SB 108. She said the bill provides a simple answer
to the question of what should happen to the record of a state
court criminal case if none of the criminal charges resulted in
a criminal conviction and the case is closed. The court file is
designated as confidential three months after the case is
closed. Making these records confidential avoids an unnecessary
risk of harm to a person, she said. Even though it shouldn't
make any difference, just the information that there was a
criminal accusation can limit a person's economic opportunity
and damage their reputation. By contrast, making these records
confidential provides a meaningful end to a criminal process.
She cited the case of U.S. Senator Ted Stevens as evidence of
the harm of criminal charges and refuted the opposing position
of Taylor Winston with the Office of Victims' Rights.
2:17:48 PM
CARMEN GUTIERREZ, representing herself, Anchorage, Alaska,
testified in support of SB 108. She described the bill as an
important step in reducing recidivism. She said it's fair that
the name of a person who has been arrested and convicted should
be available to the public and posted on CourtView. What is not
fair is that a person's name and the fact of charge remains
available to the public and on CourtView even when the charge
has been dismissed or the person has been acquitted. When these
charges remain open to the public, the arrest often becomes
synonymous with conviction. This impedes a person's ability to
find employment, rent an apartment, and live a life free of
stigmatization for a crime for which the person was not
convicted. SB 108 is intended to rectify these unintended and
harmful consequences, she said.
2:26:08 PM
DONNA KLECKA, representing herself, Eagle River, Alaska,
testified in support of SB 108. She said a history of
snowballing issues is affecting her reputation and therefore her
private business. She described a number of charges that were
filed against her through the years, and pointed out that even
though all the charges were dismissed her name is still on
CourtView as a felon.
CHAIR COGHILL expressed sympathy that the chain of events
created such a trial.
2:33:21 PM
STACIE KRALY, Chief Assistant Attorney General Civil Division,
Human Services Section, Department of Law and Emily Wright,
Assistant Attorney General, Civil Division, Child Protection
Section, Department of Law, introduced themselves.
MS. KRALY said she was speaking on behalf of both the Department
of Law and the Department of Health and Social Services (DHSS).
She said she understands the purpose and policy behind SB 108,
but limiting access to this information raises some concerns.
The primary concern is that it limits access of this information
to DHSS. Specifically, the Office of Children's Services,
Senior Disability Services, Division of Behavioral Health,
certification of licensing within the Division of Health Care
Services all use this information for purposes of achieving
statutory obligations for health, safety, and welfare for
vulnerable adults, children (including disabled) and elderly
people for placement, services, resources, and licensing. The
Department of Law supports DHSS in these endeavors and thus has
concerns about limiting access to this information, she said.
MS. KRALY suggested that DOL work with the sponsor and his staff
to look at ways for DHSS to continue to have access to relevant
information to meet the statutory obligations identified above.
2:36:30 PM
SENATOR DYSON asked if there already is a procedure for somebody
with the appropriate credentials to access that information on
behalf of DHSS.
MS. KRALY replied that is what DOL is trying to achieve on
behalf of DHSS. She clarified that the request is not for
unfettered access. For example, a licensing worker who is trying
to emergency license a foster care on a weekend would have
access to that limited information, but not everybody in the
Office of Children's Services.
2:39:04 PM
CHAIR COGHILL observed that it still begs the question that OCS
will be assessing someone's reputation based on charges that
were dropped. He asked the value of the information if the
charge has been dropped.
MS. KRALY replied the value is in looking at an individual in a
pattern of conduct or services. If there is a pattern of
behavior, that information becomes qualitatively important to
evaluating the safety of placing a child or individual.
SENATOR DYSON assured Ms. Kraly that if she would come up with a
fix, it would be incorporated in a [committee substitute].
MS. KRALY committed to work with his staff on proposed language.
CHAIR COGHILL asked if the term "confidential" would be
redefined.
MS. KRALY replied it would probably require a new section to
provide limited and statutorily authorized access to the
confidential information.
CHAIR COGHILL reiterated his concern and said he'd try to
rethink the balance.
2:44:29 PM
QUINLAN STEINER, Director, Public Defender Agency, Department of
Administration, commented on the impacts of the bill. He said
that allegations and charges that are brought and later
dismissed can have a significant and lifelong impact. The
charges and allegations continue to travel with the individual
and it can be assumed that they're guilty. It's hard not to leap
to that conclusion, he said.
MR. STEINER commented on the letter from the Office of Victims'
Rights. He said it suggests that SB 108 is perpetuating the
stereotype that victims lie and, in particular, women lie. That
aspect is not contained in the bill, and it ignores the fact
that the law is neutral on gender, he said. The letter goes on
to suggest that a procedure ought to be set up to prove a
person's innocence before their name can be removed [from
CourtView]. But as a prior speaker suggested, it's difficult to
prove a negative. He also refuted the suggestion that the grand
jury process somehow justifies leaving the name posted on
CourtView as proof of some level of culpability. Mr. Steiner
concluded his comments stating that he sees SB 108 as protecting
people who are not guilty of crimes but have allegations against
them.
2:49:06 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Legal Services Section, Juneau, Alaska, referenced the
statistics that Ms. Meade provided and highlighted that a lot of
dismissed cases are the result of a plea agreement. She observed
that the bill appears to look for a balanced approach and she
was happy to work with the sponsor and Ms. Kraly to achieve
that. She suggested that the sponsor look at the procedure in
Title 12. It is supposedly to address clear cases of mistaken
identification or false accusation, but it obviously didn't work
in Ms. Mean's case.
MS. CARPENETI said she wanted to clarify that the bill applies
to all records in the court system, not just the documents that
are electronically accessible. She suggested that if the sponsor
likes the definitions of "confidential" and "records" that
currently are in the court rules, he should consider putting
them into the statute. She also suggested on page 1, inserting
"by the prosecution" at the end of paragraph (2). The reason is
that courts sometimes dismiss cases for reasons that have
nothing to do with guilt or innocence.
CHAIR COGHILL asked her to think about prospective application.
MS. CARPENETI agreed.
2:55:48 PM
RICHARD ALLEN, Director, Office of Public Advocacy, Department
of Administration, Anchorage, Alaska, testified in support of SB
108. He said the bill would impact different parts of OPA in
different ways. First, the public guardians and guardian ad
litems might find it more challenging to get certain
information, but he suspects that the amendment that's been
discussed will take care of that. He opined that SB 108 could
provide a real benefit for OPA clients that have been charged
with crimes. He pointed out that the presumption of innocence
and the right to due process are fundamental to the American
justice system, and the founding fathers recognized that police
and prosecutors don't always get it right. He described SB 108
as a common sense approach to limit the negative consequences
for citizens who have been cleared of wrongdoing.
CHAIR COGHILL said the point is well taken.
SENATOR DYSON expressed appreciation that the court was working
with him and urged the stakeholders to bring suggestions forward
by Monday.
CHAIR COGHILL held SB 108 in committee.
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