Instructions to probation, parole officers to ignore new crimes still in effect, DOC says
A nervous-looking man browsed through the electronics department at the Midtown Walmart in November 2016. A nearby asset protection associate noticed something was off and started watching him.
The customer selected several video games and headed over to the menswear section, where the security worker observed him putting the items in a backpack. He then walked past all open and active registers, and proceeded to exit the store through the grocery section doors.
Confronted in the parking lot by the watchful Walmart employee, the man agreed to return to the store with the stolen items, totaling in $318.96 worth of merchandise.
Walmart asset protection reported the theft to the Anchorage Police Department, and an officer then contacted the man's probation officer. He was serving a sentence of probation after being caught in possession of heroin, months earlier.
By committing the theft, he violated a basic condition that every individual released on bail, probation or parole is given:
"You shall comply with all municipal, state and federal laws."
In other words, don't commit new crimes.
Those under the Department of Correction's supervision, either through probation or parole, are also warned:
"You are subject to arrest by a probation officer with or without a warrant if the officer has cause to believe that you have violated a condition of your probation."
If a person continues to break the law, there will be consequences — it's a concept victims of crime would like to count on.
But according to an internal DOC email sent in January 2017, that's not always the case.
The email, dated Jan. 11, 2017, is from former Region III Chief Probation Officer Keith Thayer to staff members. It informs recipients of the department's stance on charging individuals who are serving time on probation or parole for violating the law, following the passage of Senate Bill 91, Alaska's controversial criminal justice reform package.
Subject: "Comply all laws..." General Condition *must read*
During our DPP Leadership Committee yesterday, a statewide question came-up concerning whether the "Comply all laws..." General Condition can be used absent a new criminal charge.
DOC is taking the position that this allegation should only be used when a new criminal offense has been charged by an outside law enforcement agency. Charging as an allegation of "Comply all laws..." General Condition without a new criminal charge is outside the intent of SB 91.
Additionally, we should not be doing this function for other agencies, who are choosing not to charge. It is not our mission, focus, or within our training to charge/prove new crimes. Please focus on the violations of the current conditions when addressing these situations. The Director and Deputy Director will be discussing this stance with the Department of Law to help them understand that we will not be using this condition without a new criminal offense being charged.
Please contact your supervisor, if you have any questions.
The email, obtained by KTVA, tells probation and parole officers they can only act on a violation of the "comply with all laws" condition if an outside agency has charged the person with a new crime.
Charging someone with a violation for failing to comply with all laws, without a new criminal charge filed by an outside law enforcement agency, "is outside the intent of SB 91," the message says.
Absent action from another agency, probation and parole officers are essentially expected to look the other way when a person they're supervising violates conditions of release by committing a new crime.
Rep. David Eastman, R-Wasilla, acquired a copy of the email independently of KTVA and included it in an article on his political website. He asserts the intent behind the order is to make crime numbers look better than they really are in the wake of SB 91.
"When parolees aren’t charged with breaking the law, they don’t go back to prison, and SB91’s numbers on repeat offenders look really good. But they aren’t. Alaskans are hurting today because criminals have been given a free pass," he wrote.
In its annual report released in November 2018, the Alaska Criminal Justice Commission — which helped craft SB 91 — reports that when it comes to parole and probation supervision, the amount of people re-arrested for a supervision violation is down. It also states the majority of petitions to revoke probation or parole were for technical violations, rather than new crimes.
The report has been cited by supporters of SB 91 as a demonstration of the legislation's success, while the email now draws into question the quality of the data.
Sen. Shelley Hughes, R-Palmer, who chairs the Senate Judiciary Committee, said she has long questioned the quality of crime statistics in Alaska, and the DOC email represents additional cause for concern.
"If something is a condition of release, that they're to comply with local, state and federal laws, and someone isn't — even if there's not a charge that's put forward — I'm concerned about that," said Hughes. "That's a condition. [They] need to comply with it."
In an emailed statement, DOC spokesperson Sarah Gallagher wrote in part:
"[Probation and parole officers] can only add an additional charge of probation/parole violation to a new charge filed by a law enforcement agency. Therefore, if a person has not been charged with a new crime by another agency, than the PO cannot allege a new crime has occurred and charge the individual with a violation."
But the case of the Walmart shoplifter who was on probation, clearly contradicts that statement.
According to court records, APD officers never showed up.
"After approximately two hours of waiting for APD to respond, the decision was made by Walmart Security to release the defendant and the call to APD was canceled. No police report was filed in this matter; however, Walmart Loss Prevention did provide a statement of facts," a probation officer wrote.
There is no record of the man being charged for the theft, but the probation officer still filed a petition to revoke the defendant's probation, and alleged a new crime had occurred — something the DOC now claims cannot be done.
That petition was filed in November 2016, before probation and parole officers received the email.
Gallagher said the email did not signal a change in procedure:
"This is not a policy, but was sent as an email reminder of standard practice sent by individuals in the prior administration who are no longer with the Department."
Court records from May 2017, after the email was sent out, appear to demonstrate a change from the process used in the 2016 incident.
A petition to revoke probation filed in a different case alleges the defendant committed a new crime, also shoplifting. But the theft occurred on April 19, 2017, and the probation officer didn't file the violation until the following month, once APD had arrested the person.
KTVA found both cases through a search of common names in online court records and presented them to the DOC Thursday, but did not receive a reply.
During the process of trying to get answers, KTVA made several requests for an interview with DOC that went unanswered. Gallagher did confirm, however, that the guidelines in the email sent to probation and parole officers are still in effect.
Requests for comment to the House majority, ASEA, the union representing probation and parole officers, and the Department of Law were not returned.
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