Sen. Mark Begich, the incumbent Democrat from Alaska, has been forced to pull a television ad that said his Republican opponent’s actions as the state attorney general led to a gruesome murder -- a serious charge based on paper-thin evidence.
Begich released an attack ad the Friday before Labor Day that said Dan Sullivan was soft on sex crime during his 18-month tenure as attorney general. Begich and Sullivan are locked in a toss-up race, one of several that could decide which party controls the Senate come November.
"(Sullivan) let a lot of sex offenders get off with light sentences," says the ad’s narrator, identified as a retired police officer, standing outside of an Anchorage apartment complex. "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 two-year-old granddaughter. Dan Sullivan should not be a U.S. senator."
The ad is talking about a crime allegedly committed by a man named Jerry Andrew Active on May 25, 2013 -- just hours after Active was released from prison. Active should have spent several more years behind bars for a prior sexual assault conviction, according to an Alaska Department of Law investigation, but a clerical error led to a shorter sentence. Active is currently awaiting trial on the May 2013 charges.
The ad did not mention Active by name, but it gave a detailed description of the crime -- which received significant coverage in the Alaska media last year -- in front of the building where it occurred.
The Sullivan campaign retaliated almost immediately with its own ad (in which they identify Active), defending his record and calling Begich’s ad "shameful." Both campaigns have pulled the videos down at the request of the victims’ family, who claimed the ad was insensitive and could affect upcoming prosecution. (PolitiFact obtained a copy of the ad in order to fact-check it; a TV report in Alaska shows a clip of it.)
Even though the ads are no longer on the Alaska airwaves, the skirmish points to serious criminal justice issues. So we decided to dig in and see if Sullivan bears any responsibility for Active’s alleged crime. We found that the timing just doesn’t line up.
Begich’s campaign declined to talk with us about the ad -- citing the pending trial -- so we asked the Alaska Democratic Party for evidence tying Sullivan to events leading to Active’s sentencing and the May 2013 crime.
The party pointed out that Sullivan was attorney general in March 2010, when prosecutors negotiated a plea agreement with Active, who at the time was charged with sexual abuse of a minor, among other charges. (Sullivan’s name is stamped on the plea agreement, though it bears the signature of an assistant district attorney.)
The Alaska Department of Law later found that Active’s 2010 plea agreement was based on incorrect information and should have come with a longer sentence. If Active had received the longer sentence, he likely would have still been in jail on the day he committed the murders.
But Sullivan is not personally responsible for this plea agreement mistake. Let’s take a look at the course of events, according to the Department of Law. Keep in mind that Sullivan was attorney general from June 2009 to December 2010.
In January 2009, state troopers arrested Active for sexually assaulting an 11-year-old girl and then physically assaulting the girl’s mother and brother. In March 2010, Active pled guilty to those charges, accepting a deal with prosecutors that sentenced him to about four years of jail time (including the time he had served up to that point, since his arrest in January 2009).
Active was released in 2012. From then on, he was in and out of prison on probation violation charges until May 25, 2013, when he committed the murder referenced in Begich’s ad.
When drawing up Active’s plea agreement in 2010, the state looked at his criminal history. As is customary, they received this information from the Alaska Public Safety Information Network. However, Active’s report failed to identify a 2007 felony conviction for providing a minor with alcohol. (That’s typically a misdemeanor, but Active’s charge was treated as a felony due to some nuances in the law.)
Because of the inaccurate report, the Department of Law miscalculated Active’s presumptive sentence. They believed it to be between two years and 12 years -- leading to his four-year sentence and release in 2012. If their calculation had included his 2007 felony charge, he would have had a presumptive sentence of eight years to 15 years.
The Department of Law said at the time that they are not sure how the mistake happened, though the information network sometimes has blind spots when it comes to offenses that happen in rural villages, like the one where Active was arrested in 2007, according to the Alaska Dispatch.
Regardless, this chain of events happened before Sullivan became attorney general.
The Alaska Public Safety Information Network pulled Active’s report the day after he was arrested in January 2009 -- Sullivan took office the following June. So although Active’s plea agreement and sentencing happened in 2010, while Sullivan was in office, the mistake that led to Active’s shorter sentence happened more than a year earlier. (At the time, Sullivan was on active duty for the U.S. Marine Corps, according to his campaign.)
Additionally, it’s highly unlikely that Sullivan was personally involved with Active’s case and plea agreement at all, said John Skidmore, director of the Department of Law’s criminal division. The state handles about 40,000 cases each year, at least half of which are felonies -- so it’s "unrealistic" for an attorney general to be involved with individual cases, he said.
"There is no way that (any attorney general) would be involved in that sort of decision at that level at that time," Skidmore said.
Part of a trend?
The Alaska Democrats said that under Sullivan, there was a trend of the state giving sex offenders light sentences -- pointing to a dozen cases in which Alaska prosecutors negotiated sentences with sex offenders that fell at the low end of the sentence-length spectrum.
They also noted that Alaska local television station CBS 11 produced a story in March 2010 about what happens to criminals who fail to register as sex offenders with the state. The story includes examples of convicted rapists receiving the minimum sentence for failing to register, and others having charges against them dropped.
However, Alaska’s sentencing structure encourages prosecutors to negotiate sentencing agreements, leaving judges with little influence over sentencing, said former Alaska Chief Justice Walter Carpeneti in 2012. And these presumptive sentencing policies had been in place since the late 1970s -- so when Sullivan entered the office, these practices were already well-established.
During his time as attorney general and subsequent role as commissioner of natural resources, Sullivan was one of the main faces of the "Choose Respect" campaign, started in 2009 by Republican Gov. Sean Parnell to address domestic violence and sexual assault in Alaska.
The "Choose Respect" campaign passed several pieces of legislation while Sullivan was attorney general, which his campaign said exemplifies his commitment to the issue. The laws passed include harsher sentences for people involved with child pornography or human trafficking, revision of bail laws for people charged with serious crimes, and specified procedures for DNA retention in murder and sexual assault cases. The campaign also said Sullivan hired the Department of Law’s first cyber-crimes prosecutor whose focus is combating child pornography.
Following Active’s arrest for the May 2013 crimes, the state changed its plea bargaining policies, so Alaska prosecutors are no longer permitted to negotiate lower sentences with people charged with violent felonies or sexual crimes.
Begich said Sullivan approved a "light sentence" to a sex offender who is now charged with "murdering a senior couple and sexually assaulting their two-year-old granddaughter."
Active, who is awaiting trial, received a shorter sentence than he was supposed to, but the mistake that led to this sentence happened before Sullivan became attorney general. So to pin the error on Sullivan is wrong, and to suggest that he actively approved the sentence is a fabrication.
The ad is not only inaccurate, it makes an inflammatory accusation. We rate this claim Pants on Fire.