A publication of the Justice Center	Alaska Justice Statistical Analysis Center

See also:       > Alaska Court System > Fairness & access in the courts > Public defender & indigent legal services in Alaska         Abstract: At the request of Alaska Supreme Court’s Committee on Fairness and Access, the Alaska Judicial Council undertook a study to ascertain whether the disproportionate percentages of ethnic minorities observed in the criminal justice system at all points in the process were the result of discrimination in the courts. The study also sought to determine whether other unwarranted disparities—beyond those associated with ethnicity—were occurring. Another purpose behind the study was to gather current descriptive data on the system. The results are presented in a sprawling, dense report, Alaska Felony Process: 1999, which illuminates the felony case process at many points, reflecting on the operation of all components in the system—not just the courts. Although some disparate treatment has occurred, overall the Alaska court system appears to be sentencing felony defendants even-handedly, following the standards established by statute. Nevertheless, there is a disproportionately high presence of Natives and Blacks from beginning to end in the Alaska criminal justice system; the causes of this warrant further investigation.

Design of the Study

      Judicial Council researchers assembled data from 2331 case files—about two-thirds of all 1999 felony case filings—for analysis. The case sampling was designed to provide a representative statewide selection of felony cases. The data collection focused on information available for each case—variables such as gender, age, ethnicity, type of attorney, and conviction charge. The Institute of Social and Economic Research at UAA performed the statistical analysis. The analysis looked at associations of these and other variables with predisposition incarceration, charge reductions, and sentencing. Such an analysis requires the construction of a model—essentially a series of mathematical equations—that is an abstraction of the particularities and complexities of the judicial process. The model focuses attention at the particular points chosen as important in understanding the overall working of the system—with this study, there are points where disparate treatment might be occurring. The analysis does not reveal cause and effect relationships but rather associations between variables.
      With this study the Judicial Council chose to focus primarily on the criminal process as it unfolds after the initial charges are filed in court. The study did not look at the case-screening process and the decisions involved in that phase, nor did it examine the circumstances surrounding arrest for a felony crime. (The Department of Law reported that it declined to prosecute approximately 25 percent of felonies referred by law enforcement agencies.) Moreover, while the study did use ethnicity, gender, and age as variables in its analysis, other demographic or socioeconomic data were not included. Factors such as education level of defendants, family composition, or employment status were not examined. These factors, as well as factors present in the arrest and case-screening phases of the process, if included, would give a more detailed picture—that is, the statistical results would be more refined with regard to the entire process and the disparate treatment that is occurring might be better understood.
      Essentially, the inclusion or exclusion of variables to examine and the statistical approach used are study design questions, in part dictated by time and financial considerations. With this particular study, the data were assembled from individual court case files, many of which were voluminous. Resources were not available to look at the earlier phases of the felony case process: this would be a starting point for further research. Moreover, it is clear that future studies must somehow incorporate more analysis of socioeconomic data.
      The report contains much more than just the results of the statistical analysis used to discern disparities. In effect, it provides a broad look at the whole process and includes much descriptive data not available before.

General Characteristics of the Felony Population

      Although the researchers did not examine the early stages of the criminal justice process, the basic data on the study population assembled showed that, as a group, felony defendants differed from the general population of the state in some noticeable ways.
      • Like felony populations in other states, the Alaska felony defendants in this study were relatively and disproportionately young, with nearly half (47%) younger than 30, compared to 22 percent in the general population.
      • The felony population was also disproportionately male—83 percent. The general population is 52 percent male.
      • Blacks and Alaska Natives were disproportionately high percentages of the felony group. Blacks were 4 percent of the population as a whole, but 11 percent of this felony group. Alaska Natives were 30 percent of those charged with felonies but only 14 percent of the general population. Caucasians, who were 76 percent of the adult population, were only 50 percent of the felony population. The percentages for Hispanics and Asians and Pacific Islanders were also lower than their representation in the general population. These disproportions remained fairly constant between charged and convicted defendants. (The study also breaks down the group according to ethnicity and type of felony charge.)
      • Individuals in the felony group were also more likely than the general population to have prior criminal records, with at least 70 percent having earlier convictions for either a misdemeanor or felony.
      • Sixty-three percent of those in the sample showed evidence of an alcohol problem and 45 percent, of a drug problem—although because of the methods used to identify these problems, these numbers may be low. (The report does not present comparison figures for the general population.)
      • Thirty percent of the study population exhibited a mental health problem.
      These numbers describing the felony offender population suggest a need for more investigation of the earlier phases of the criminal justice process not examined by this study. Why the disproportionate percentages of Natives and Blacks among those charged? Are these percentages a function of arrest figures?
      The recommendations included with the Judicial Council study call for this further research and also stipulate the need for improved data, particularly about ethnicity, in reporting, arrests and prosecutorial screening.

Charge Patterns—Initial and Disposition

      The report presents an extensive look at charges—the initial charge filed, disposition charge, summary breakdowns of charges according to felony classification and offense type; and the results of the multivariate analysis looking at charge data in relation to other variables.
      For a majority of the 2331 defendants whose files were examined—65 percent—the single most serious initial charge was a Class C felony. The most common type of offense, for the most serious charge, was a property offense. Figures 1 through 4 show the complete breakdowns.

      Charge reduction is one area of the felony case process for which there are comparative data from previous studies. In 1991, the Judicial Council, evaluating the ban on plea bargaining then in place, looked at charge data from 1984 through 1987. The present study reveals that charge bargaining was substantially more frequent in 1999 than in the late 1980s and that, in general, the degree of charge reduction from initial to disposition offense was greater. A higher percentage of those initially charged with a felony offense in the 1999 study population was convicted of a misdemeanor than in the 1984-87 group. The plea bargaining ban is no longer in effect.
      The data on charge changes assembled for the earlier study are included in this report for comparison purposes. The tables present a charge breakdown for the total study population: the specific most serious original charge and the specific final disposition charge.
      This was the first analysis capturing data on felony driving offenses since the 1995 statutory changes. Defendants with this type of offense as the most serious charge formed about 7 percent of the total study population. The study revealed that most defendants convicted of a felony driving offense were convicted on the original charge. Few had all charges dismissed or were acquitted.
      The study also reviewed the process of charge reduction between the initial and final, or disposition, charge for possible disparities in conjunction with certain variables. This analysis showed no disparities by ethnicity for Caucasians, Blacks or Alaska Natives. (The numbers for other minorities in the study—Hispanics and Asian Americans—were too low for the statistical analysis to be considered reliable, so they are not discussed in this article.) Defendant gender was also not found to be associated with disparities in charge reduction.
      Disparities did appear with the public/private attorney variable. In many categories of analysis, although not all, having a private attorney was associated with more beneficial final charges. In addition, rural cases were associated with more beneficial charge reductions.
Defendants with alcohol, drug or mental health problems overall were associated with less beneficial final charges.

Predisposition Incarceration

      The predisposition process can be lengthy and complicated, involving numerous court appearances, sometimes before different judges, sometimes with different attorneys. The Judicial Council study chose to examine the length of time offenders were incarcerated before case disposition as one indicator of whether treatment of defendants is evenhanded. The report presents the results of the first multivariate analysis of predisposition incarceration in Alaska—that is, the amount of time an offender spent in jail before the case was decided was examined in relation to other variables, such as ethnicity, gender and type of attorney.
      The study found more widespread disparities at this point in the justice process than at any other examined. In other words, a number of variables were associated with spending longer time in jail before a case was decided—including ethnicity, type of attorney and location of case. The discovery of the patterns of disparity at this point in the criminal justice process is important because the question of bail involves constitutional issues; moreover, disparate treatment at this point can involve the innocent as well as those ultimately found guilty. Because so many disparities emerged in the predisposition phase of the felony case process, the Judicial Council recommends that it receive further study.
      The differences in incarceration time which emerged varied; some disparities were minimal but others were more lengthy. Some may be more easily explained than others. For example, a presumptive charge was associated with more jail time before disposition than a non-presumptive. Since presumptive charges generally involve repeat felons or very serious offenses, this disparity may only reflect judicial consideration of the danger posed by a defendant. Others aren’t as easily explicable and are more troubling: being Black or Native was associated statewide with more time incarcerated at this stage—independently of the effect of other variables.
      Having a private attorney was associated with less predisposition incarceration time consistently across almost all types of offenses, statewide and within and outside Anchorage. Only with sexual offenses did no significant difference in predisposition incarceration time appear for type of attorney. (The results associated with the type of attorney variable throughout the study are discussed in more detail below.)
      Being charged and appearing in a rural court was also associated with fewer days of predisposition incarceration.
      A variable found to be associated with more predisposition incarceration time was the requirement for a third party custodian. There are a number of complexities surrounding the this variable that warrant discussion here.
      Both the figures assembled here and anecdotal discussion indicate that the practice of requiring a third party custodian either with or without a monetary bond has become frequent, particularly in Anchorage, where judges required a custodian in about sixty percent of the felony cases. The study did not attempt to look at refinements associated with this practice—such as type of third party custodian arrangement, the characteristics required of a custodian, or the effectiveness of the arrangement.
      The use of a third party custodian seems to have emerged in Alaska in the late 1970s or early 1980s as a way for those without any financial resources to make bail. The practice is not used as much elsewhere in the country. (There were also fewer bail bondsmen at that time even in the urban centers, with none at all in smaller places.) It is now established by statute as a permissible component of bail requirements.
      The practice of requiring custodians has changed over the years: While it may still provide a way for indigent defendants to make bail, it also is often used now in conjunction with a monetary bond requirement. It has become an additional tool for judges in the predisposition process to ensure a defendant’s appearance in later court hearings as well as to provide an additional protection for the public and the defendant.
      There are different types of third party custodians: twenty-four hour custodial supervision is often required for those charged with dangerous felonies, but other arrangements require much more limited types of supervision. The Judicial Council study did not assemble data on different types of custodial arrangements or possible relationship to amount of monetary bond, nor did it provide any analysis of the judicial intent involved in setting this requirement.

Presumptive Sentencing

      In Alaska, repeat felons and those convicted of the most serious felonies, such as murder in the first degree, are subject to presumptive sentences or mandatory minimum sentences. In this study, about 18 percent of convicted defendants were subject to a presumptive sentence. The Judicial Council study found no evidence of unwarranted disparate treatment in sentencing these types of offenders. In other words, those offenders who might generally be labeled as the most dangerous or the most intractable are being handled consistently, according to standards imposed by the legislature.

Non-presumptive Sentencing

      In the analysis of non-presumptive sentences, some disparities associated with ethnicity appeared, but they were too scattered and limited to suggest any intentional, pervasive discrimination.
      Eighty-two percent of convicted defendants in the study population were subject to a non-presumptive sentence—essentially a sentence for which the parameters are not as closely determined by statute. Non-presumptive sentences apply to those convicted of a first felony offense on less serious felony charges or to those convicted of a misdemeanor. The sentences are determined according to the class of the felony or misdemeanor. For example, for a first felony conviction for a Class C felony such as Burglary 2, the sentence range is 0-5 years, with the most likely sentence being 2 years.
      With this group, the statistical analysis found ethnic disparities only in a few categories of analysis. Statewide, being Black or Native was associated with longer sentences for drug offenses. Being Black in Anchorage and being Native outside Anchorage were also found to be associated with longer sentences for drug offenses. (This finding suggests a direction for further research, particularly in light of the immense growth in incarceration due to drug offenses nationally. Alaska’s handling of drug offenses has not been explored in any depth.)

Overall: Disparate Treatment Associated with Gender or Ethnicity

      No pervasive patterns emerged that suggest established or intentional discrimination, but there is disparate treatment occurring at some points in the process, with some types of defendants—whatever the explanation.
      As discussed above, disproportionately more men than women were initially charged with felonies. Beyond that, overall, being male tended to be associated with more incarceration time, both during the predisposition phase and as a component of the final sentence, particularly for violent and property crimes. However, gender showed little association with incarceration in drug cases and driving cases, and, in general, gender did not show much association with the extent of charge reduction that occurred over the life of the case.
      Also as discussed earlier, the charged felony population exhibited disproportionately high percentages of Blacks and Alaska Natives. Further disparities associated with ethnicity occurred at some other points. Being Native or Black was associated with longer predisposition incarceration in many, but not all categories of analysis. Also, as discussed above, being Native or Black was associated with longer sentences in non-presumptive sentences on drug offenses in certain categories of analysis.

Public—Private Defense Attorneys

      Over 80 percent of the cases in this study were handled by attorneys in the Public Defender’s Office or by Office of Public Advocacy (OPA) attorneys or OPA contract attorneys. The analysis involving the variable for type of attorney—public or private—showed that, in general, having a private attorney was associated with less incarceration time, both pre- and post-disposition. The association was not found in all categories examined, but it emerged as one of the most frequent findings. For some offenses in some categories, the difference in incarceration time was slight, but in others, having a private attorney was associated with substantially shorter periods of incarceration. These statistical results need to be seen in the broader context of how the study was designed.
      The study variable for type of attorney may be subsuming other factors not included in this statistical model. These factors might include the defendant’s level of education, employment status and history, presence or absence of spouse or other family, and residential status. If these factors had been examined in conjunction with the public-private attorney variable, the picture of the relationship between incarceration time and type of attorney would have more nuanced detail. To put this in more concrete terms—an individual charged with a felony who has hired a private attorney may also have the financial resources to post bond as soon as it is set and a family member or acquaintance whose own life seems stable enough to be acceptable to the court as a third-party custodian; thus, this individual will spend less time incarcerated before his case is decided. As discussed earlier, these details of socioeconomic background were not captured in the statistical modeling for this particular study. Their absence somewhat obscures understanding of the results associated with this variable.
      Whether a defendant is represented by a public or private attorney is essentially a function of client financial resources. (See accompanying piece “Appointment of Public Attorney.”)
      The study was not designed to look at the economics of the criminal justice process, either with regard to defense representation or other aspects of the process, such as agency budgets. It does note that a 1998 legislative audit of the Public Defender Agency found the agency to be severely straitened by an inadequate budget. The Judicial Council report also notes that felony filings in the court system increased 86 percent between 1984 and 1999. The operating budget of the court system rose from $36,960,000 to $49,871,100 over the same period—only 25 percent. The Judicial Council study states that the budget of the entire criminal justice system rose 21 percent (adjusted for inflation) from 1984 to 1999.

Comparative National Data

      The report includes a section comparing its findings to national figures derived primarily from research done by the Bureau of Justice Statistics and from data assembled under the FBI’s Uniform Crime Reporting (UCR) program.
      While Alaska’s crime rate overall was only slightly higher than the national rate, the rate of reported violent crime in 1999, as calculated by the UCR program, was about 20 percent higher than the national rate.
      In Alaska, as elsewhere, only a small percentage of reported crimes eventually resulted in a felony conviction.
      Alaska offenders charged with a felony were more likely than offenders elsewhere to receive a sentence of incarceration, whether convicted of a felony or misdemeanor.
      One aspect of the Alaska picture warrants special note: Alaska’s rate of reported forcible rape was the highest of all states and 155 percent higher than the national average in 1999. Moreover, Alaska’s rate of conviction on a felony charge (any felony) after an arrest for rape was substantially lower than the national average. (Only 9 percent of those charged with Sexual Assault 1 in the 1999 study population were convicted on the same charge. For 22 percent of those charged with this offense, the disposition charge was a misdemeanor.)

Recommendations

      Overall the report recommendations, based on the findings discussed above, constitute a call for increased vigilance within all the components of the criminal justice system regarding the occurrence of unjustifiable disparate treatment. Most of the recommendations will require additional financial resources for criminal justice agencies. In particular, the report advocates directing increased resources to the agencies handling public defense and expanded use of therapeutic courts.
      The careful in-depth analysis of this study shows that the disproportionately high presence of Natives and Blacks from beginning to end in the Alaska criminal justice system is not primarily a factor of disparate treatment from the judiciary. The percentages are, however, a reality.
In light of this, the report recommends further examination of the problematic points revealed by this study and of those early stages of the criminal justice process not studied here. This research will need to incorporate the socioeconomic details not included in this analysis. To facilitate such research and to promote agency self-monitoring for disparities, the report calls for better data assembly and management in the various criminal justice agencies as well as more interagency collaboration.

      The report "Alaska Felony Process: 1999" is available through the Alaska Judicial Council. It will be posted on-line later this spring at www.ajc.state.ak.us.

Appointment of Public Attorney

      In thinking about the question of public-private defense, it is important to note that in Alaska, as elsewhere in the country, over 80 percent of all criminal defense work is handled by public attorneys. In other words, over 80 percent of those charged with a criminal offense lack the economic means to pay for their own defense.
      In Alaska, the court appoints a public attorney to represent a defendant whose income resources are insufficient to contract private counsel. Under Rules of Criminal Procedure 39 and 39.1 the court must look at a defendant’s entire financial picture in making the determination to appoint a publicly-financed attorney. A defendant whose income is below the adjusted federal poverty guidelines or who receives public assistance benefits through a state or federal program is presumptively eligible for public representation.
      Table 1 presents 1999 Alaska income levels by borough or census area, including the number and percentage of the population below the federal poverty line.
      The Public Defender’s Office carries the main responsibility for indigent criminal defense in Alaska, with the Office of Public Advocacy (OPA) taking those cases in which there is a conflict of interest for the PD’s office. In addition, contract attorneys hired through OPA take on criminal defense work at public expense. In reality, many attorneys doing criminal defense as private practitioners also serve at times as contract attorneys for OPA. Further, cases can evolve in which what originally is representation by a private attorney becomes representation by a court-appointed attorney when the client’s resources are exhausted.