A controversial TV ad from Sen. Mark Begich accuses his opponent, former Alaska Attorney General Dan Sullivan, of letting “a lot of sex offenders get off with light sentences” — specifically one ex-con who prosecutors say killed an elderly couple and raped their infant granddaughter in 2013. The ad, though, doesn’t tell the full story.
The “light” sentence was not by choice, but because the Alaska Public Safety Information Network (APSIN) provided prosecutors with an incomplete criminal history of the accused murderer, Jerry Andrew Active, when he was charged in an earlier assault in 2009. Active was sentenced to four years in the 2009 case for the attempted sexual abuse of a minor in the second degree, because the APSIN database did not include a 2007 felony conviction. If it had, Active would have been subject to a sentence of eight to 15 years, rather than two to 12 years, and presumably he would have been given a longer prison term.
Three state departments share the blame for the “light” sentence: the Department of Law, the Department of Corrections and the Department of Public Safety.
As attorney general, Sullivan was in charge of the Department of Law, which prosecuted the 2009 case against Active and reached a plea agreement with him that resulted in a four-year prison term. There is at least one other way to access criminal background information besides APSIN, and an argument could be made that Sullivan’s office did not do its due diligence.
Still, Sullivan had no responsibility for the incomplete database maintained by APSIN, which is an agency within the Department of Public Safety and the primary source used by the state for criminal background checks. And Sullivan did not have responsibility for the probation officer at the Department of Corrections who wrote a confidential pre-sentencing report that apparently failed to include Active’s complete criminal history.
The ad ignores the reason for the “light” sentence or other parties responsible for the sentencing snafu. It also implies that Sullivan was personally responsible for Active’s sentence, but there is no evidence that he had any direct involvement in the case.
The ‘Crime Scene’
The Begich campaign began airing the TV ad, titled “Crime Scene,” the Friday before Labor Day. By Sept. 2, the campaign had pulled the ad after the victims’ family expressed concern that the ad would interfere with Active’s trial, according to a letter that the family’s attorney sent to the Begich campaign and that was obtained by The Daily Caller.
The Sullivan campaign condemned the ad and accused Begich of “lying.”
The ad features retired Sgt. Bob Glen, a 20-year veteran of the Anchorage Police Department, who tells viewers that he wants to “show you a crime scene,” and then he jumps into his car and drives to 415 N. Bragaw Street, Anchorage, Alaska. That’s the location of a grisly attack on an elderly couple and their 2-year-old granddaughter on May 25, 2013.
Retired police officer: I want to show you a crime scene. I was on the Anchorage police force for 20 years. I don’t know how long Dan Sullivan lived in Alaska, but I do know what he did as attorney general. He let a lot of sex offenders get off with light sentences. One of them got out of prison and is now charged with breaking into that apartment building, murdering a senior couple and sexually assaulting their 2-year-old granddaughter. Dan Sullivan should NOT be a U.S. senator.
It’s Glen’s opinion that Sullivan “let a lot of sex offenders get off with light sentences.” The Alaska Democratic Party provided us with a list of cases that it believes proves the point, but that amounts to anecdotal evidence. Others we spoke to in Alaska don’t share that opinion.
“It is not my experience that the District Attorney’s Office ‘lets a lot of sex offenders get off with light sentences,’ ” said Wally Tetlow, a former president of the Alaska Association of Criminal Defense Lawyers. “That has never been my experience.”
So, we will set that aside and instead focus on whether one of those sex offenders got off lightly — the focus of the ad.
The facts about the attack as presented in the ad are accurate. Jerry Andrew Active is not mentioned by name, but the address provided on the screen is the site of a crime he now stands accused of committing.
On June 3, 2013, Active was indicted for the murders of Touch Chea, 73, and his wife, Sorn Sreap, 71, and multiple sexual assaults of the 2-year-old granddaughter whom they were babysitting. The Alaska Dispatch News reported that Active “had been released from the Anchorage Correctional Complex about 12 hours before allegedly committing the grisly murders and assaults.” The paper said three Democratic lawmakers called for an investigation into “whether he should have served a longer sentence for an earlier assault.”
The Alaska Dispatch News was referring to the sentence Active received in 2010 when Sullivan was the attorney general. An investigation was launched, and state Attorney General Michael Geraghty announced on June 6, 2013, that Active should have received a longer sentence in 2010. He said the plea agreement “may have been incorrect and not consistent with the law.”
Here’s what happened, according to the attorney general’s report: Active was arrested on Jan. 29, 2009, on charges of “burglary in the first degree, sexual assault in the second degree, sexual abuse of a minor in the second degree, and assault in the fourth degree. The district attorney’s office added counts of attempted sexual abuse of a minor and criminal trespass.” The sexual assault involved an 11-year-old girl. On Jan. 30, 2009, the state ran a criminal background check using APSIN, but as Geraghty explained: “This report failed to include Mr. Active’s prior felony conviction from the 2007 offense.”
The 2007 felony conviction was for furnishing alcohol to a minor.
Attorney general’s press release, June 6, 2013: As a result of Mr. Active’s felony conviction in the 2007 case, and his conviction for attempted sexual abuse of a minor in the 2009 case, he was subject to a presumptive sentencing term of eight to fifteen years. The Department of Law, the Department of Corrections and the sentencing judge failed to identify Mr. Active’s prior felony conviction for purposes of calculating the applicable presumptive sentencing term, and believed that Mr. Active was subject to a presumptive sentence of two to twelve years for what was believed to be his first felony conviction for attempted sexual abuse of a minor.
Who’s to Blame?
Sullivan was not appointed attorney general until June 2009, so the Sullivan campaign says the fact that the faulty criminal background check was done about five months before Sullivan took office absolves him of any wrongdoing. That is a matter of dispute — even among Alaska’s criminal defense lawyers.
Sullivan was the attorney general when the plea agreement was reached in March 2010. His office had the opportunity to review Active’s criminal history before it negotiated a plea agreement.
“In my expert opinion, a DA that relies solely on APSIN without checking CourtView is not exercising due diligence,” Tetlow, the former president of the state defense lawyers association, told us.
CourtView is a state court database that provides summary information on cases dating to 1990. We found the criminal history of Jerry Andrew Active with just a few key strokes.
Steven Wells, who also is a past president of the Alaska criminal lawyers association, agreed — to a point. “It is incumbent on the AG’s office to run a background check, but they aren’t the only ones to do so. The probation officer will write a report called a pre-sentence report (PSR),” Wells told us in an email.
A pre-sentencing report was done in this case, and it was presented to the court on July 9, 2010, according to the attorney general’s review of the Active case. That report is confidential, so we don’t know what it says. However, the attorney general’s report listed the Department of Corrections — which includes the Division of Probation and Parole — as among those responsible for failing to “identify Mr. Active’s prior felony conviction for purposes of calculating the applicable presumptive sentencing term.”
Wells, however, doesn’t blame Sullivan or the probation officer. “I believe that Sullivan is being unfairly blamed, but not because the mistake occurred prior to his taking office. Instead, the problem is in APSIN,” Wells said.
APSIN’s failure to include the 2007 felony conviction in its database was particularly troublesome because, as the attorney general’s office said in its June 2013 press release, “[t]he state primarily relies upon the Alaska Public Safety Information Network (APSIN) to determine the prior criminal history of defendants.”
The Begich campaign placed the blame squarely on Sullivan, but in doing so it distorted the facts.
The Begich campaign issued a timeline of events that falsely states in March 2010 “Dan Sullivan enters into an improper plea agreement with Jerry Active.” As proof, the campaign provided a screen grab of the plea agreement showing Sullivan’s name. “Dan Sullivan’s name appears on a plea agreement with Jerry Active,” the campaign timeline says. But the plea agreement was signed by Assistant District Attorney Gustaf Olson, not Sullivan. That information was not part of the timeline.
The Begich campaign provided no evidence that Sullivan had any involvement in Active’s 2010 plea agreement — despite the implication that he did both in the ad and in the campaign’s timeline.
The Alaska Democratic Party makes a separate point that Geraghty in 2013 changed the plea bargain process to prevent prosecutors from negotiating plea agreements with defendants for sexual crimes and violent felonies. That, it says, is evidence that the plea bargain process was broken under Sullivan.
Attorney General Michael Geraghty, Department of Law 2013 Annual Report: I instituted a change in the plea negotiation process to restore sentencing where it belongs, with judges. While our Criminal Division will continue to arrive at appropriate plea dispositions based on the law and the facts, we will no longer agree to sentences with the defendant for sexual crimes and violent felonies. Instead, our prosecutors will argue for the stiffest sentence supported by the law and the facts, and allow the court to impose what it believes to be an appropriate sentence. I took this step because it is critical for the public to have confidence in the criminal justice system and it is judges, not prosecutors, who should be determining the appropriate sentence in those serious cases that affect our communities.
That’s not evidence, however, that Sullivan “let a lot of sex offenders get off with light sentences.” And whether the new process has or will result in longer sentences is not known.
It’s possible the change may result in shorter sentences. For example, the Alaska Democratic Party sent us a link to a March 1, 2012, news article in which state Supreme Court Chief Justice Walter “Bud” Carpeneti urged state legislators to change the sentencing guidelines to give judges more power to set sentences rather than approve plea agreements. But, contrary to the Democratic Party’s point, Carpeneti argued for the change as a way to reduce prison sentences.
“Too many of Alaska’s young men, particularly our young men of color, are spending their early adulthoods in our prison system,” Carpeneti told lawmakers.
In the end, we find that the Begich ad is misleading because it doesn’t tell the full story of Active’s “light” sentence; it ignores the responsibility that other state agencies had in this tragic case; and it leaves the false impression that Sullivan was personally involved in the plea agreement.
— Eugene Kiely