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Third Party Custodian: A Quirk of Alaska Law With Big Consequences

Part I of II

October 26, 2011|by Michelle Theriault Boots

ANCHORAGE, Alaska — It happens every day of the week in courtrooms all over Alaska.

Today, in Judge Michael Spaan’s Anchorage courtroom, the applicant is a woman with curly black hair, a mother.  The judge is hearing bail applications and arraignments.

She’s ushered from the spectator benches to a podium, where she swears to tell the truth.  She looks at her son, accused of assault and weapons charges in a robbery-gone-wrong. He wears an yellow jumpsuit, handcuffed to another detainee in the jury box.

She is his ticket to bail, which would mean getting out of jail until his trial.

Attorneys ask her questions: are there any guns in her home? Drugs? Alcohol? Will she promise to watch her son 24 hours a day, 7 days a week? Would she hesitate to turn him back in to the police if he did something he wasn’t supposed to?


No guns. No drugs. No alcohol. Yes, she will. No, she wouldn’t hesitate.

Judge Spaan takes a long look at her and at the son, who cradles his arm in a sling. 

“I’ll appoint you as your son’s third party custodian,” he says.

With that, the mother with the curly black hair and her son the defendant enter the strange world of third-party custody – a quirk of Alaska law that has become a widespread, little-examined practice with far-reaching implications.


A third party custodian is a person who vouches to take total responsibility for a defendant when they are released on bail, ensuring that they follow their conditions of release and show up to all court dates.

They can be friends, family members or even coworkers.  In many cases they have to volunteer to watch the defendant 24 hours a day, 7 days a week, “sight and sound” – meaning that during every waking moment they can hear or see the defendant.

They promise to do this for the duration of the pre-trial period, which can last for weeks, months or even over a year. If they fail in their duties, they can be charged with a criminal misdemeanor.

Outside of Alaska and the federal court system, where third-party custodians are occasionally used, the practice is virtually unknown.

In Alaska, it dates back to the 1970s.

“The idea really developed in Rural Alaska as an alternative to cash bail, because so many people lived a subsistence lifestyle,” says Judge Philip Volland, the deputy presiding judge in charge of criminal matters for Alaska’s Third Judicial District, which includes Anchorage.

 “It started in a different way than it’s practiced now.”

Today, it’s used by courts all over the state – from hub villages like Dillingham to cities like Anchorage and Fairbanks.

No one can agree on exactly how frequently.

“I would say it’s used in 50 percent of felony cases,” says Tom Stenson, a prison rights attorney with the ACLU of Alaska who has been studying the subject for several years.

The last in-depth research on the subject comes from an Alaska Judicial Council study that was released in 2000. The data it draws on is now more than a decade old, but it’s still the clearest look at the practice's reach and implications in existence.

That study suggests that the popularity of third party custodians varies wildly by region: judges required them as much as 95 percent of the time in Dillingham and as little as 4 percent of the time in Kotzebue.  In the state as a whole, the study showed 54 percent of people charged with felonies were required to have a third party.

One concern is its use in misdemeanor cases, where the amount of time spent in pretrial incarceration might potentially exceed the length of the sentence, says Quinlan Steiner, the head of the Alaska Public Defender Agency.

Steiner says he’s concerned that it could influence defendants’ decisions to enter plea agreements – simply because they know they’ll sit in jail without a third-party.

A representative from the Anchorage District Attorney's office was contacted for comment but did not respond to attempts to schedule an interview. 

But judges say the practice does help to ensure the safety of the public. And, with substance abuse at the root of many crimes committed in the state, it may a defendant’s best shot at staying out of trouble while on bail.

“A perfect example is someone who has had their second felony DUI,” says Volland. “You don’t want them drinking, you don’t want them driving. Fines and money and everything else hasn’t worked before. So you really want someone to keep an eye on them.”

They also point out that, with a judge's permission, a variety of instiutions -- from halfway houses to electronic monitoring firms -- can subsitute for a physical third-party custodian. 

And though the failures often make news, the quiet successes of the program rarely do.

“I think it works, most of the time,” he says.