Anchorage, Alaska – “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.” ― William Pitt the Younger

In their rush to repeal Alaska’s criminal justice reforms, legislators have passed, and Gov. Dunleavy has now signed, legislation that returns Alaska to broken criminal justice policies that failed to reduce crime or keep Alaskans safe.

Despite some positive provisions, such as the requirement that sexual assault examination kits be processed in a timely manner, House Bill 49 is bad policy, fraught with attacks on the rights and protections guaranteed to all Alaskans under the U.S. and Alaska constitutions. Among these include protections against excessive government fines, as well as the rights to bail and the presumption of innocence.

As a result, our elected leaders have all but guaranteed drawn-out and costly litigation against the state over parts of the bill.

HB 49 Creates a Presumption of Guilt for Many Offenses

Section 59  of House Bill 49 (HB 49) states “In making a finding regarding the release of a person under this chapter…there is a rebuttable presumption that there is a substantial risk that the person will not appear and the person poses a danger to the victim, other persons, or the community.”

This means that prior to any hearing of evidence, Alaska courts are directed to presume defendants in these cases are guilty and thus are a danger to society and unlikely to appear in court. This fundamentally violates Alaskans’ right to presumption of innocence and access to bail.

In the last year, both the Alaska Court of Appeals and the legislature’s own lawyers concluded such language violates Article 1, Section 11 of the Alaska Constitution.

HB 49 Creates an Excessive Penalty for Not Giving the State Money

Section 91 of HB 49 directs the Department of Motor Vehicles (DMV) to cancel an Alaskan’s drivers’ license when the department determines they owe more than $1,000 in unpaid motor vehicle related fines and fees.

The U.S. Constitution’s 8th Amendment protection against “excessive fines”, mirrored in Article I, Section 12 of the Alaska Constitution, derives from the Magna Carta. It was passed specifically to echo that document in guaranteeing economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.”

HB 49 is a direct attack on Alaska’s working poor. People prohibited from driving often lose their ability to work, access medical care, and provide for their families. Revoking someone’s drivers’ license can put them in the untenable position of either unlawfully driving or losing their jobs.

It is important to note Alaskans will not lose their licenses because of the motor vehicle related violations that caused the fines and fees, but only for being either unwilling or unable to pay them. This is not a public safety issue. It is an effort to help the state collect money from the working poor.

Courts have been clear that the government’s interest in collecting revenue does not outweigh Alaskans’ need to earn a living, yet, that is exactly where HB 49 leaves Alaska.

Conclusion

“HB 49 undermines cherished protections against government power and attacks those least equipped to fight back,” said ACLU of Alaska Executive Director Joshua A. Decker. He continued, “I hope legislators and Governor Dunleavy will take the months between now and the next legislative session to review their errors and take action to correct them.”

The American Civil Liberties Union is our nation’s guardian of liberty. For nearly 100 years, ­the ACLU has been at the forefront of virtually every major battle for civil liberties and equal justice in this country. Principled and nonpartisan, the ACLU works in the courts, legislatures, and communities to preserve and expand the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States. The ACLU of Alaska, founded in 1971, is one of the 53 state ACLU affiliates that strive to make the Bill of Rights real for everyone and to uphold the promise of the Constitution—because freedom can’t protect itself.

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Additional Resources

Memo from Legislative Affairs Agency to Sen. Mike Shower on the unconstitutionality of rebuttable presumption against release: https://www.acluak.org/sites/default/files/leg_legal_memo_to_m._shower_re_sb_33_3.1.19.pdf

U.S. Supreme Court Decision in Timbs v. Indiana: https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf

ACLU Amicus Brief in Timbs v. Indiana: https://www.supremecourt.gov/DocketPDF/17/17-1091/63223/20180910193534496_Timbs%20Amicus%20Brief%20Final.pdf

 

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