03/10/1997 01:20 PM House JUD
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 10, 1997
1:20 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Jeannette James
Representative Norman Rokeberg
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 65
"An Act relating to partial-birth abortions."
- MOVED HB 65 OUT OF COMMITTEE
* HOUSE BILL NO. 53
"An Act relating to the authority of the Department of Corrections
to contract for facilities for the confinement and care of
prisoners, and annulling a regulation of the Department of
Corrections that limits the purposes for which an agreement with a
private agency may be entered into; authorizing an agreement by
which the Department of Corrections may, for the benefit of the
state, enter into one lease of, or similar agreement to use, space
within a correctional facility that is operated by a private
contractor, and setting conditions on the operation of the
correctional facility affected by the lease or use agreement; and
giving notice of and approving a lease-purchase agreement or
similar use-purchase agreement for the design, construction, and
operation of a correctional facility, and setting conditions and
limitations on the facility's design, construction, and operation."
- HEARD AND HELD
CS FOR SENATE BILL NO. 1(FIN) am
"An Act relating to living and working conditions of prisoners in
correctional facilities operated by the state, and authorizing the
commissioner of corrections to negotiate with providers of
detention and confinement services under contract to apply those
conditions and limitations on services to persons held under
authority of state law at facilities operated under contract or
agreement; relating to services provided to prisoners; amending the
definition of `severely medically disabled' applicable to prisoners
seeking special medical parole; amending provisions of the
correctional industries program; and extending the termination date
of the Correctional Industries Commission and the program."
- BILL HEARING POSTPONED
* HOUSE BILL NO. 115
"An Act making corrective amendments to the Alaska Statutes as
recommended by the revisor of statutes; and providing for an
effective date."
- BILL HEARING POSTPONED
HOUSE BILL NO. 31
"An Act relating to civil liability for certain false allegations
or material misstatements of fact in a civil pleading or
proceeding, for certain improper acts relating to signing a civil
pleading, for certain improper acts relating to civil pleadings or
proceedings, for making an intentional false statement of a
material fact, for acting on a civil claim or defense without
probable cause, or for acting for a purpose other than proper
adjudication of a civil claim; amending Rules 13(e) and 82(b),
Alaska Rules of Civil Procedure; and providing for an effective
date."
- REMOVED FROM AGENDA
(* First public hearing)
PREVIOUS ACTION
BILL: HB 65
SHORT TITLE: PARTIAL-BIRTH ABORTIONS
SPONSOR(S): REPRESENTATIVE(S) KOTT, Kohring
JRN-DATE JRN-PG ACTION
01/13/97 50 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 50 (H) STATE AFFAIRS, JUDICIARY
02/06/97 (H) STA AT 8:00 AM CAPITOL 102
02/06/97 (H) MINUTE(STA)
02/07/97 277 (H) COSPONSOR(S): KOHRING
02/18/97 (H) STA AT 8:00 AM CAPITOL 102
02/18/97 (H) MINUTE(STA)
02/19/97 408 (H) COSPONSOR(S): OGAN
02/20/97 (H) STA AT 8:00 AM CAPITOL 102
02/20/97 (H) MINUTE(STA)
02/21/97 421 (H) STA RPT 4DP 1DNP 1NR
02/21/97 421 (H) DP: JAMES, HODGINS, DYSON, VEZEY
02/21/97 421 (H) DNP: BERKOWITZ
02/21/97 421 (H) NR: IVAN
02/21/97 421 (H) INDETERMINATE FISCAL NOTE (ADM)
02/21/97 421 (H) ZERO FISCAL NOTE (DHSS)
03/05/97 (H) JUD AT 1:00 PM CAPITOL 120
03/07/97 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 53
SHORT TITLE: LEASE-PURCHASE CORRECTIONAL FACILITY
SPONSOR(S): REPRESENTATIVE(S) MULDER
JRN-DATE JRN-PG ACTION
01/13/97 41 (H) PREFILE RELEASED 1/10/97
01/13/97 41 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 41 (H) STATE AFFAIRS, FINANCE
02/19/97 406 (H) JUD REFERRAL ADDED
02/21/97 428 (H) STA REFERRAL WAIVED
02/21/97 428 (H) REFERRED TO JUDICIARY
03/07/97 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
THEDA PITTMAN
4720 Eagle Number 1
Anchorage, Alaska 99503
Telephone: (907) 561-0515
POSITION STATEMENT: Testified in opposition to HB 65.
REPRESENTATIVE PETE KOTT
Alaska State Legislature
Capitol Building, Room 204
Juneau, Alaska 99811
Telephone: (907) 465-6848
POSITION STATEMENT: Prime Sponsor of HB 65
GEORGE DOZIER, Legislative Assistant
to Representative Pete Kott
Capitol Building, Room 204
Juneau, Alaska 99811
Telephone: (907) 465-6848
POSITION STATEMENT: Provided testimony on HB 65
REPRESENTATIVE ELDON MULDER
Prime Sponsor, HB 53
Capitol Building, Room 501
Juneau, Alaska 99811
Telephone: (907) 465-2647
POSITION STATEMENT: Prime Sponsor HB 53
DOUG PERKINS
Bayshore/Klatt Community Council
2130 Shore Drive
Anchorage, Alaska 99515
Telephone: (907) 276-1592
POSITION STATEMENT: Provided testimony on HB 53
STEVE LARSON
3815 West 44th Avenue
Anchorage, Alaska 99517
Telephone: (907) 243-4727
POSITION STATEMENT: Testified in opposition to HB 53
BARBARA WEINIG, President
Rabbit Creek Community Council
P.O. Box 113849
Anchorage, Alaska 99511
Telephone: (907) 345-1599
POSITION STATEMENT: Testified in opposition to HB 53
CRAIG PERSSON, Vice President
Public Safety Employees Association
P.O. Box 82324
Fairbanks, Alaska 99712
Telephone: (907) 457-3577
POSITION STATEMENT: Testified in opposition to HB 53
JOAN BENNETT-SCHRADER CLUW
Mt. Redoubt Alaska Chapter
Coalition of Labor Union Women
P.O. Box 1587
Kenai, Alaska 99611
Telephone: (907) 283-4359
POSITION STATEMENT: Provided testimony on HB 53
JOHN YARBOR
P.O. Box 671073
Chugiak, Alaska 99567
Telephone: (907) 696-7908
POSITION STATEMENT: Provided testimony on HB 53
JULIE OLSON, President
Oceanview/Old Seward Community Council
1501 Oceanview Drive
Anchorage, Alaska 99515
Telephone: (907) 786-5265
POSITION STATEMENT: Testified in opposition to HB 53
B.K. POWELL, Spokesperson
South Anchorage Coalition
1501 Oceanview Drive
Anchorage, Alaska 99515
Telephone: (907) 345-4834
POSITION STATEMENT: Provided testimony on HB 53
ED EARNHART
1043 West 74th Avenue
Anchorage, Alaska 99518
Telephone: (907) 345-4834
POSITION STATEMENT: Testified in opposition to HB 53
CHARLES O'CONNELL, Business Manager
Alaska State Employees Association
3510 Spenard Road, Number 201
Anchorage, Alaska 99503
Telephone: (907) 277-5200
POSITION STATEMENT: Testified in opposition to HB 53
MARGOT KNUTH, Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Telephone: (907) 465-3600
POSITION STATEMENT: Provided testimony on HB 53
ACTION NARRATIVE
TAPE 97-35, SIDE A
Number 001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee to
order at 1:20 p.m. Members present at the call to order were
Representatives Con Bunde, Brian Porter, Eric Croft, Ethan
Berkowitz and Chairman Joe Green. Representative Norman Rokeberg
arrived at 1:21 p.m., and Representative Jeannette James arrived at
1:22 p.m.
CHAIRMAN GREEN announced that members would not consider SB 1, or
HB 131 until a later date because of the backlog on HB 65 and HB
53.
HB 65 - PARTIAL-BIRTH ABORTIONS
Number 151
CHAIRMAN GREEN advised members that the first item of business
would be House Bill No. 65, "An Act relating to partial-birth
abortions." He pointed out that public testimony had been closed.
However, because of audio problems experienced with Anchorage at
the previous hearing, he would allow those who had signed up the
opportunity to provide testimony on that bill.
THEDA PITTMAN testified to via teleconference from Anchorage,
Alaska. She made reference to the statement made by Mr. Dozier,
legislative aide to Representative Pete Kott, relating to the court
cases he cited. Ms. Pittman advised members that his presentation
was a report on the cases themselves and what he said was actually
quite good; however, one would have to "tear the paper" off at that
point; discard his editorial comments and actually compare the
casework to the bill in order to understand the many, many problems
of HB 65.
MS. PITTMAN stated that essentially, although it was possible to
ban an abortion after viability, it would be necessary to take into
account that the court cases provided that the determination of
viability must rest with the doctor. And also the determination of
the danger to the life or the health of the woman must rest with
the doctor, and that the particular procedure must rest with the
doctor, as well.
MS. PITTMAN stated that as for viability, abortion was not
performed on a healthy woman with a healthy fetus. She noted that
the editorial comments on the bill created the illusion that in the
seventh, eighth or ninth month, a pregnant woman would get up one
morning and suddenly decide not to be pregnant. After viability,
abortions were not preformed on healthy women, with a healthy
fetus; hence, there was no need for HB 65.
Number 267
CHAIRMAN GREEN advised members public testimony would now be closed
on HB 65. He asked that the prime sponsor, Representative Pete
Kott address the committee.
Number 342
REPRESENTATIVE PETE KOTT, Prime Sponsor, HB 65, advised members
that Representative Porter had previously requested information
regarding the various methods of partial-birth abortions. He
advised members one method was the suction curettage/aspiration,
which was a method typically employed during the first trimester;
however, had been used up to the 15th week of pregnancy.
Representative Kott explained that the abortionist mechanically
dilates the opening of the uterus, inserts a vacuum device into the
uterus, and removes the baby through negative suction.
REPRESENTATIVE KOTT explained that a second type was known as D &
E, which stood for dilation and evacuation. The cervix was dilated
slowly, over a one or two day period, by the insertion of
laminaria, and a suction curettage is inserted through the cervix
and the baby is removed. He noted that frequently, the baby's head
and torso were too large to be removed in that manner, and
consequently, the abortionist dismembers the baby by the use of
suction curettage or forceps. Representative Kott expressed that
sometimes the size of the head, because it was too hard to be
removed in the womb, would be decompressed either by crushing it,
or inserting a suction device and removing the contents, which then
allows for its removal. He added that that was a common second
trimester abortion. Representative Kott stated that again, with
both procedures he had mentioned, there was no life.
REPRESENTATIVE KOTT advised members that the third method was what
was termed installation/induction procedures, where the abortionist
injects a substance, usually a saline solution, or combination of
prostogladen and urea. He explained that that was injected into
the amniotic cavity, or prostogladen suppositories placed into the
vagina. The mother then goes into labor, and the dead fetus is
expelled.
Number 571
CHAIRMAN GREEN noted that Representative Kott was making reference
to a "dead fetus", and asked if those method were only used if the
fetus was dead, or did the procedure, itself, kill the fetus.
REPRESENTATIVE KOTT advised members that the fetus, he would
suspect in some circumstance, would already be dead; however, the
intent was to extract, or eliminate a fetus or pregnancy of a
woman.
REPRESENTATIVE KOTT advised members that the fourth method involved
a hysterectomy, which was a caesarian section preformed before
term, or hysterotomy, which was the removal of the entire uterus.
He pointed out that those methods were seldom used.
REPRESENTATIVE KOTT informed members that the last method was
dilation/extraction, known as D & X. He explained that dilators
were inserted in the cervix for two days, and on the third day, the
abortionist removes the dilators and ruptures the membranes, which
he suspected was a rupture of the water bag, and with the use of
forceps, the baby was delivered, except for the head; scissors
would be inserted in the baby's skull, and spread in order to make
the opening larger, at which time a suction catheter was inserted
and the contents of the skull evacuated. Representative Kott
advised members that with the skull depressed, the baby would be
completely delivered. He expressed that as noted by the court, the
primary distinction between the D & X procedure, and the D & E
procedure, was that the D & E procedure resulted in dismemberment
and piece by piece removal of the fetus from the uterus, and the D
& X procedure resulted in a fetus being removed, basically, intact
except for a portion of the skull contents, which would be
suctioned out after the head was placed next to the opening of the
uterus. Representative Kott explained that the D & X procedure was
a more broad term, coined by Dr. McMahon, as killing the baby, or
fetus, and then removing it, often times head first, as opposed to
what Dr. Haskell had coined as a partial birth procedure, where the
baby was actually spun around and delivered feet first. He pointed
out that the fetus, in both cases, would be dead, which was where
they got into the difference of the D & X procedure, as coined by
Dr. Haskell.
REPRESENTATIVE KOTT stated that it could be noted that the term D
& X, as used by the court in Voinovich, was not a recognized
medical term. He pointed out that again, it was coined by Dr.
James McMahon, who used it to describe procedures, not within the
definition of partial-birth abortion, as used in the proposed
legislation.
REPRESENTATIVE KOTT advised members that the definition of partial-
birth abortion, as used in HB 65, did not overlap with other
abortion methods. He noted that with suction curettage-aspiration,
the baby was not partially vaginally delivered and then killed.
Representative Kott explained that with the D & E procedure, the
baby was partially delivered before it was killed. HB 65 required
that before the procedure fell within the scope of the bill. With
installation type methods, the baby would be vaginally delivered,
but only after the death in the womb. He noted that in rare cases,
the baby survived delivery, and therefore could not be legally
killed because that would result in a substantial problem for the
abortionist.
REPRESENTATIVE KOTT explained that HB 65, by way of contrast,
required that the abortionist partially, vaginally, deliver a live
fetus and then kill the baby before complete delivery of the fetus.
He noted that with the hysterectomy and hysterotomy procedure,
there was no vaginal delivery, partially or otherwise.
REPRESENTATIVE KOTT expressed that as stated by Dr. Joseph
Riederer, who was the premier expert in Juneau who had delivered
2000 plus Juneau babies, that "The proposed definition of the bill
is specific, and no other medical procedure would be restricted or
affected by banning partial-birth abortion. The language is clear
and specific." Representative Kott noted that was a quote from the
Doctor's written testimony.
Number 988
CHAIRMAN GREEN asked if the baby was dead before it was removed if
that would be a D & X procedure, and if still alive when the body
of the fetus came out and actually had the shears inserted in the
head, if that was a different procedure.
REPRESENTATIVE KOTT stated that that was what Dr. Haskell coined as
a D & X, which was later referred to, and coined now as partial-
birth abortion, and not to be confused with Dr. McMahon's
procedure.
CHAIRMAN GREEN asked if the procedure only dealt with dead fetuses.
REPRESENTATIVE KOTT agreed that it did.
Number 1033
REPRESENTATIVE BRIAN PORTER explained that that entire body of
information was what he wanted in order to make sure he understood
prior to voting on the proposed legislation. He noted that the
definition of partial-birth abortion, that appeared in the bill,
excluded, and was not meant to include in any way, any of the other
procedures described by Representative Kott. Representative Porter
stated that only when a portion of the physical fetus was exposed,
outside of the mother's body, and a live fetus, that it was then
killed and the extraction completed.
REPRESENTATIVE KOTT advised members that would be correct.
Representative Kott pointed out that there were particular views
of resident experts around the state, who had all suggested that
the procedure used was not a medical necessity for the purpose of
the health of the mother. He added that the particular practice
used, could not be found in any medical books, or medical school
teachings. Representative Kott stated that as far as he knew, the
practice was not being utilized in the state of Alaska, and the
proposed legislation was a preemptive strike to ensure that it
would not occur. He pointed out that HB 65 would not restrict as
woman's right to choice.
Number 1170
CHAIRMAN GREEN advised members that if they would only expect to
see the procedure take place in order to protect the life of the
mother, that he could not understand why one would be able to go in
and forcibly turn the baby around, so that it would come out feet
first, and insert the scissors after the baby was essentially
delivered. He stated it appeared to him that delivery, in that
procedure, was basically completed, and then the baby would be
killed, rather than delivering it normally. Chairman Green
expressed that he had a real problem with that.
Number 1212
REPRESENTATIVE CROFT noted that a member of the public who
testified on HB 65, bet committee members $500, that the procedure
was never necessary to save the life of the mother. He asked
Representative Kott if that was a true and accurate statement.
REPRESENTATIVE KOTT stated that in his opinion, he did not believe
it was based on the various medical reviews he had researched.
REPRESENTATIVE CROFT asked if the procedure was necessary in order
to save the health of the mother.
REPRESENTATIVE KOTT felt that if the procedure was used to save the
health of the mother, it would dilute the entire intent, because he
felt there was a broad definition of health. He noted that
arguably, anyone who performed the procedure under that guise,
could legitimately establish, before the court, that there was a
health issue.
REPRESENTATIVE CROFT advised members that was part of his
confusion. He understood Mr. Dozier's testimony, and the testimony
of Representative Kott, to be that because the procedure was never
necessary to save the health of the mother, that a health exception
was not necessary. And if it was believed that the procedure was
never necessary to save the life of the mother, why was that
exception included.
REPRESENTATIVE KOTT reiterated that it was his humble opinion that
the procedure was not necessary to save the life of the mother,
based on the literature from the experts who had written commentary
on the procedure.
REPRESENTATIVE CROFT pointed out that the draft committee
substitute states members were being asked to adopt language which
stated, "partial-birth abortions are not necessary to preserve the
life, or health of pregnant women." He expressed that if they made
that legislative finding, why was the exception included at all.
GEORGE DOZIER, Legislative Assistant to Representative Kott,
advised members that the reason for including the finding, was
because HB 65 mirrored the definition as set out in the federal
legislation that had been vetoed. He noted that that legislation
had been re-introduced, and suspected that in light of events over
the past couple of weeks, that it would stand a much better chance
of not being vetoed this time. Mr. Dozier explained that by
including the life provision in the proposed legislation, it would
make Alaska statutes consistent with what he felt would be federal
law.
Number 1400
REPRESENTATIVE CON BUNDE advised members that he was troubled with
the same contradiction of the findings. He noted that not many
legislators were doctors, and it was found that it was not
necessary to preserve life, and then it states that the procedure
could not be done unless it was necessary to save life, which to
him, was an absolute contraction. Representative Bunde pointed out
that either the legislature did not know what it was talking about,
and that finding should be removed, or it would be necessary to
delete Section 2; one or the other.
REPRESENTATIVE PORTER advised members that it would be his intent
to support the removal of Section 1 because he did not feel any of
that section supported the proposed legislation, and had
ramifications past the intent of HB 65 that he did not want to
contemplate.
REPRESENTATIVE PORTER stated with respect to Section 2, he felt he
could support it if he understood it correctly. He advised members
he would be interested in hearing from the sponsor, or Mr. Dozier,
what impact the wording of Roe, regarding the phrase, "the life or
health of the mother", would have on leaving some reference for
health in the proposed legislation.
MR. DOZIER advised members that Roe was a case which involved the
prohibition of, basically, all types of abortions. He explained
that subsequent cases, including Casey, also involved an absolute
prohibition of all types of abortion, in certain circumstances.
Mr. Dozier pointed out that both cases indicated that the states
could regulate abortions, except as necessary to preserve the life,
and health of the mother.
MR. DOZIER advised members that the proposed legislation, unlike
Roe and Casey, did not involve a prohibition of abortion, per se,
even for a short period of time, such was the case in Voinovich.
Mr. Dozier explained that HB 65 prohibited the use of one
particular procedure, and consequently, the life and health of the
mother was already protected by what was already in place.
CHAIRMAN GREEN noted that Representative Porter had suggested the
removal of Section 1, with Section 2, then, becoming Section 1. He
asked Mr. Dozier if he saw any adversity if that amendment was
offered and should pass.
REPRESENTATIVE KOTT reminded members that the draft committee
substitute had not yet been adopted by the committee, and if
Representative Porter would like to strike Section 1, the draft
committee substitute could be set aside and adopt the original bill
because that did not have the Section 1 language as was in the
draft proposal. He advised members that he did not feel striking
Section 1 would be substantially detrimental to the bill, adding
that he felt it would add some credence if there was a challenge
before the courts at some later point in time.
REPRESENTATIVE CROFT moved to adopt CSHB 65 (JUD), Version B, as
the committee's working document.
REPRESENTATIVE JEANNETTE objected.
REPRESENTATIVE ROKEBERG agreed with the position expressed by
Representative Porter. He asked if members voted against adoption
of the draft committee substitute, would that bring them back to
the original version, or the State Affairs committee substitute.
CHAIRMAN GREEN suggested that they adopt the draft committee
substitute and then move on to strike Section 1.
REPRESENTATIVE KOTT stated that it was his belief that the original
bill before members did not include Section 1 of the committee
substitute.
CHAIRMAN GREEN clarified that if the draft committee substitute was
not adopted, that they would be, then, considering the original
bill, HB 65, Version E.
REPRESENTATIVE ROKEBERG supported Representative Porter's position,
and also pointed out that there was other language in the findings
that he felt could generate some undue discussion. He advised
members that he would be voting against the adoption of the draft
committee substitute.
REPRESENTATIVE CROFT advised members that he also had trouble with
the legislative findings; however, he would prefer to start, and
would vote to start from the draft committee substitute, and then
decide whether or not they wanted to amend it to remove Section 1,
and amend Section 2 in other respects. He noted that while the
language was inconsistent on the life or health provision, between
Sections 1 and 2, he thought the findings brought out an important
aspect of the bill. Representative Croft pointed out that even
with just the life part, they were in effect, finding that partial-
birth abortions were not necessary to preserve the health of
pregnant women, when it is not allowed as an exception. He felt
the finding clarified what was actually being done. Representative
Croft stated that he would like to keep the findings in, for
discussion purposes, and possibly at the end of deliberations,
members might decide to remove them.
REPRESENTATIVE PORTER felt that if the bill included the exception
relating to the life of the mother, he did not feel it was
appropriate to have a finding that it was an unnecessary
conclusion, noting that there were no doctors on the panel.
Representative Porter advised members that the reason he was
hesitant about all of the findings, was that they all appeared to
have the potential to be interpreted as a position on abortion, as
opposed to a position on partial-birth abortion. Representative
Porter stated that from that standpoint, he did not believe they
added any benefit to the intent of the proposed legislation.
Number 1861
REPRESENTATIVE JAMES agreed that the findings were not relevant to
the issue. She stated that in reading the original bill, it was
very clear to her what it meant, and felt it was totally sufficient
in its form. For that reason, she would be voting against adoption
of the draft committee substitute.
CHAIRMAN GREEN requested a roll call vote: In favor:
Representatives Croft, Berkowitz and Green. Opposed:
Representatives Bunde, Porter, Rokeberg and James. Adoption of
CSHB 65(JUD) as a work draft failed, 4 to 3.
CHAIRMAN GREEN pointed out that members would now have before them
the original version of HB 65.
Number 1929
REPRESENTATIVE CROFT advised members that the findings that were
not adopted, stated that the legislature found the procedure was
necessary to save the life or health of the mother. He expressed
that it was clearly inconsistent the way it was, and the committee
chose not to adopt it. However, he felt they could have
consistently adopted it as an implicit finding that they would make
to say, "The legislature finds that these procedures are not
necessary to save the health of the mother.", either that, or the
health of the mother was not important to them, which he felt the
second would be unlikely.
REPRESENTATIVE CROFT advised members that what they were saying,
being non-doctors, was that the procedure was not necessary to save
the health of the mother. He stated that Mr. Dozier said as much,
although in his written presentation, he stated that Roe had an
exception where the life and health of the mother was threatened,
and that Casey, specifically said that "the state may prescribe
abortion, except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the
mother". Representative Croft expressed that that was the federal
standard that was adopted by Casey. Because health was not
included in the version the committee adopted, he would offer, with
the permission of the Chair, two amendments, of which one would
place "health" back in the bill, and the second would limit the
prohibition to the third trimester.
REPRESENTATIVE CROFT felt that what upset most people, and it did
him, was the idea that those partial-birth abortions would be done
on healthy women, with healthy babies in the third trimester, that
would be ended with no medical justification. He saw no
justification for that. Representative Croft pointed out that the
bill before them, the original version, had no limitation in that
direction; that it applied to any abortion from the first week of
pregnancy and did not provide an exception for health.
REPRESENTATIVE CROFT stated that if Roe and Casey specifically said
you would have to provide protection for the life or health of the
mother, that they would be doing something clearly unconstitutional
by enacting something that solely protected life. He noted that
Mr. Dozier disagreed, and the reason he had requested a copy of his
written statement, was because he wanted to inquire more into what
the rationale was for leaving it off. Representative Croft stated
that Mr. Dozier stated that because the state had never conducted
the procedure, it could not be necessary to save health. He noted
that Mr. Dozier could clarify, if necessary; however, read from the
prepared statement as follows: "Thus, the question must be asked,
does HB 65, which prescribes a procedure, which thus far is not
done in Alaska, place a substantial obstacle in the path of a woman
seeking an abortion. The answer by definition is no." In other
words, Representative Croft stated, that because it had never been
needed in the state, it never could be needed in the state.
REPRESENTATIVE CROFT pointed out that there were many medical
procedures not done in the state of Alaska. For example, he
believed that complicated open heart surgery was not done in
Alaska. Representative Croft did not feel any member of the
committee, member of the legislature, or any rationale person would
say there was no time that procedure was not necessary to preserve
someone's health, or in some cases, life. To him, the argument
simply confused whether the state had ever done it, with whether it
could ever be necessary. Representative Croft pointed out that it
was clearly unconstitutional for the early portions of the
pregnancy, and did fit with what the federal constitution required
in the late portions, in Casey.
REPRESENTATIVE CROFT expressed that the second rationale related
for excluding health, that members could just conclude from what
they know and through testimony they heard, that it was not. He
stated that even setting aside the argument that it had not been
done, in the state, so it could not ever need to be done, he did
not consider a good argument. Representative Croft pointed out
that members could say that, "we, as seven non-doctors" would
conclude that a woman never needed the procedure to preserve her
health. He felt that judgment was best left to the doctor and the
patient. Representative Croft noted; however, that there was also
substantial testimony which went the other way. He stated that the
only way they could delete the "of health" language was if members
were convinced, to a moral certainty, that it never was necessary.
Representative Croft explained that as a non-doctor, he would have
difficulty ever having that level of certainty, adding that there
was certainly enough conflicting information to say that, in some
professional opinions, including some that treat women in Alaska,
that it sometimes was necessary. Because Representative Croft did
not know the answer, he felt the exception should be included in
the bill.
REPRESENTATIVE PORTER advised members that they had been discussing
legislative findings, and pointed out that there were not any,
which was just established by a vote. He stated that the reference
to what the legislature intended by those findings was off the
table, and irrelevant.
Number 2300
REPRESENTATIVE CROFT moved to amend HB 65, page 1, line 6,
following the first occurrence of "life", insert: or health, and
following the word "mother", delete [whose life], and insert who.
REPRESENTATIVE PORTER objected for the purpose of discussion.
REPRESENTATIVE CROFT advised members that it was a constitutional
requirement, that they were simply acting unconstitutionally if the
language was not included. He added that secondly, they would also
be acting dispassionately if the proposed legislation would not
allow a woman, whose pregnancy was going to cause her health
problems, to make the choice of what to do, based on the sound
medical judgment that she could obtain, that the legislature would
be acting cruelly.
REPRESENTATIVE CROFT stated that to his knowledge, the partial-
birth procedure was not in the state of Alaska, but if it were, and
the judgment of the woman and her health professional determined it
was needed, that it could be done in the state. He noted that the
reason members discuss legislative findings, though out of the
present version, was that by not including health, members would be
substituting their judgment for the judgment of health
professionals, which would result in saying, "The constitution
requires that you be given the right to protect your life or
health, but we've done the work for you, because we found out that
this is never needed for health." Representative Croft pointed out
that members did not have the qualifications to do that, and would
not be aware of the individual situation, and did not know enough
about all the medical generalities, or specifics of a diagnosis.
REPRESENTATIVE CROFT stated that more importantly, why were they
not doing that with life. He advised members that if they were as
confident that the procedure was never necessary to protect life,
why was that exception included. Representative Croft suggested
that it was because there were situations where that would be
needed.
Number 2408
REPRESENTATIVE PORTER spoke against the proposed amendment. He
advised members that he came with an open question in his mind
regarding the issue of including "health" in the bill to make it
constitutional. He pointed out that he was satisfied with the
explanation given by Mr. Dozier that that portion of the decision
in Roe, must have to do with the life or health, was on a different
plane, which was precisely why he did not want the findings to be
a part of the proposed legislation. Representative Porter pointed
out that they were only dealing with partial-birth abortions, and
he felt it was a distinct enough separation from the issues of Roe
to make a consideration of the life of the mother; not the general
term "health" that could be one word that would subvert the entire
intent of the proposed legislation, to not be unconstitutional at
all. For those reasons, Representative Porter would vote against
Amendment 1.
Number 2465
REPRESENTATIVE BERKOWITZ hoped that Representative Porter was still
maintaining an open mind. He noted that he had asked Legislative
Legal what they had to say about that issue, and they stated that
in relation to the "health" amendment, .... [Tape auto-reverse to
Side B].
TAPE 97-35, SIDE B
Number 000
REPRESENTATIVE BERKOWITZ referenced the memorandum by Legislative
Legal Counsel which stated: "The amendment that would add 'health'
considerations as an exception to the prohibition of partial-birth
abortions would bring the bill in line with the U.S. Supreme Court
requirement that abortion prohibitions or restrictions on the
procedures that may be used, even after viability, must contain
exceptions based not only on preserving the pregnant woman's life
but also her health. Representative Berkowitz stated that
Legislative Legal had a more objective perspective than Mr. Dozier,
because, with all due respect, Mr. Dozier was an advocate on behalf
of proposed legislation. He pointed out that comments in the past
on the efficacy of good lawyering, would say that there was a
difference between saying that health was a constitutional
requirement, and health was not a constitutional requirement.
REPRESENTATIVE PORTER stated that he would like to see the
Legislative Legal opinion; however, not having had the opportunity
to read the document, with only one sentence being referred to,
that it would be difficult to respond to.
REPRESENTATIVE BERKOWITZ advised members he would have been happy
to have provided the information to members, but he had only just
recently received it.
CHAIRMAN GREEN called a five-minute recess for the purpose of
providing committee members a copy of the document Representative
Berkowitz referred to. The meeting recessed at 2:09 p.m., and was
reconvened at 2:11 p.m.
Number 079
CHAIRMAN GREEN pointed out that members had reviewed the document
referred to by Representative Berkowitz, and he asked if there was
any other discussion of committee members.
REPRESENTATIVE ROKEBERG wondered if Mr. Dozier would want to
comment on the memorandum, because he felt it was an opinion of
defensibility, more than a constitutional issue.
CHAIRMAN GREEN asked that Mr. Dozier approach the witness table.
REPRESENTATIVE ROKEBERG further stated that the opinion was not
only defensible, but constitutional, and that was the issue before
members, as to whether the word and concept of "health" was a fatal
defect in the draft of the legislation. He asked that Mr. Dozier
respond if the absence of the word "health" would be
constitutionally defensible, or if it was a constitutional flaw,
and not defensible.
MR. DOZIER expressed that he had not yet read the opinion provided
by Legislative Legal; however, in his opinion, the absence of the
word "health" was very defensible. He pointed out that members
would have to look at the specific procedure that the bill
addressed, by using two different standards. One was the viability
standard, or the pre-viability standard, and the other standard was
the period after which the baby became viable. Mr. Dozier advised
members that in the pre-viability stage of the pregnancy, that
determining whether or not a given regulation was constitutional,
or not, that one would have to look whether there was an undue
burden. He pointed out that the Supreme Court had defined that
very explicitly to mean placing a substantial obstacle in the path
of a women who was attempting to make a decision about abortion.
MR. DOZIER pointed out that "health" was already protected, in the
state of Alaska, and if abortion was needed to preserve a woman's
health, that the proposed legislation would not take anything from
that; there was no substantial obstacle. He noted that that was
the pre-viability stage. The viability stage of the pregnancy had
a different test, which was even more lenient to governmental
regulations, and one could say, "no abortions at all, period.
Can't use abortion practice A, procedure D, procedure C;" et
cetera, et cetera, as long as there was an exception for health and
the life of the mother. Mr. Dozier advised members that in the
case before them, they were not doing that. What members would be
endorsing, was that the particular procedure referred to in the
bill, could not occur in the state of Alaska. Mr. Dozier continued
to point out that everything in place would remain in place and,
consequently, a provision for the health of a mother currently
existed.
Number 230
REPRESENTATIVE BERKOWITZ stated that it appeared to him that if
there already was provision for health of the mother, that there
should be no objection to reinserting "health of the mother" back
into the bill. He expressed that that was done, at a regular time,
to reaffirm what the legislative intent was. Representative
Berkowitz felt it was important that HB 65 reflect the present
legislature would not do anything to jeopardize the health, or the
life, of a pregnant mother. He thought that by including the word
"health", they would be underscoring what Mr. Dozier conceded was
already a part of present law.
Number 255
CHAIRMAN GREEN expressed that there were two attorney members on
the House Judiciary Committee, and those members, having consulted
with several other attorneys, that it appeared that the issue was
a decision matter, rather than a requirement. He noted that he
could understand the reason for including the language for health
purposes, and could understand the desire to not include it because
of the possibility that it would create a confusion, if not an
absolute problem. Chairman Green stated that what he would like to
enter into the record, was that it was an opinion, and a matter of
conjecture among attorneys, just as the procedure itself, was a
matter of conjecture among the medical people. Chairman Green
pointed out that members had heard from influential people, and
high ranking members of the medical profession, who had stated that
it was absolutely not necessary. Friday, the committee heard from
Dr. Nakamura, who stated that he thought there could be times when
it might be necessary.
CHAIRMAN GREEN felt that what the committee was faced with was a
conjectural situation, as to whether or not "health" should be
included in the proposed legislation, as well as the "life
endangerment; and whether or not the particular procedure
addressed, would be the only ramification to protect the mother's
life. His feeling on the issue was that neither were necessary.
CHAIRMAN GREEN stated that if the House Judiciary Committee, and
the present legislature, wanted to pass a ban on the procedure
addressed in HB 65, through an avenue of escape because of the
necessity for the protection of the life only; not for health, or
psychologic reasons, et cetera; that it would certainly be in the
purview of the legislature to do so, adding that he felt it would
withstand legal muster.
REPRESENTATIVE BUNDE felt that one of the concerns that people had
who were particularly opposed to partial-birth abortion, or any
abortive procedure, was that a woman might choose to undergo the
procedure on a whim, or because it could cause her some mental
distress, or whatever. He thought that by adding the word
"health", after "life" on line 6, in both instances, would read;
"mother whose life, or health is endangered by the physical
disorder, illness or injury, ...". Representative Bunde pointed
out that they were not considering a notion where someone could
claim mental duress; but a serious health problem.
CHAIRMAN GREEN countered Representative Bunde's analogy regarding
non-medical, and stated that ulcers were also a result of stress
which was a physical disorder that could be brought about by the
attitude of a mother.
REPRESENTATIVE BUNDE expressed that it had been found that ulcers
were brought on by a particular bacteria, not by stress; however
understood the point Chairman Green was making.
CHAIRMAN GREEN stated that it was yet conjectural, that there was
an attitude that prevailed among the medical profession, that if
one could keep their spirits up, one would heal faster.
REPRESENTATIVE ROKEBERG expressed his appreciation of the
discussion that was taking place. He stated that while sitting,
indulging in medical expertise, members should know what they were
talking about when, obviously, they did not; however, stated that
that was okay, and that's why they were where they were.
REPRESENTATIVE ROKEBERG advised members that in reviewing the
record and considering the testimony provided by Dr. Koop [Ph],
that said he saw no reason for the procedure if, in fact, the
health of the mother was jeopardized, that there were other
alternatives. He further stated that while reading the testimony
of Dr. Ritche, which reflected that only in the case of a very
complicated pregnancy, if there was lethal fetal abnormality, or
life threatening, maternal medical complication, that the procedure
under discussion would not even be contemplated from a medical view
point. Representative Rokeberg expressed that if there were no
other arguments that might overcome his concern relating to the
constitutionality of omitting the word "health", that he would be
voting against the amendment.
Number 468
REPRESENTATIVE JAMES advised members that she was completely
comfortable with existing language, and pointed out that the intent
of Roe v. Wade, which indicated that law could not prohibit
abortion, because of the life or health of the mother, was not
included in the proposed legislation because it dealt with one
specific procedure. She advised members that she would also vote
against the amendment.
CHAIRMAN GREEN asked if the objection was still maintained on the
adoption of Amendment 1. Representative Porter and Rokeberg
maintained their objection, and a roll call vote was taken. In
favor: Representatives Bunde, Croft and Berkowitz. Opposed:
Representatives Porter, Rokeberg, James and Chairman Green.
Amendment 1 failed adoption, 4 to 3.
Number 507
REPRESENTATIVE CROFT moved to adopt Amendment 2; page 1, line 11,
following the word "means", delete [an], and page 1, line 11,
following the word "means", insert, a third trimester.
Representative Porter objected.
REPRESENTATIVE CROFT explained that the issue that had been the
most troubling for everyone, and the most troubling for him, was
the idea that a partial-abortion procedure could be done on a
healthy baby in the late stages of the pregnancy. Amendment 2
would address that specific concern, making it illegal when done in
the third trimester. Representative Croft felt the amended
language would go a long way towards curing the constitutional
concerns. He pointed out that none of the committee members were
experts, even the attorney members, but stated that in his humble
opinion, without both of the amendments, or certainly without
either one, he would confidently tell the committee that the law
would not be upheld in a court of law, if enacted in its present
form, and would be overturned as a violation of constitutional
rights.
CHAIRMAN GREEN asked if Representative Kott found, through his
research, that there was viability earlier than the start of the
third trimester.
REPRESENTATIVE KOTT advised members that was what he discovered
during his research of the entire issue, that there was viability
prior to the beginning of the seventh month.
CHAIRMAN GREEN stated that if the bill was enacted in its present
form, that there could be viable babies/fetus, that would be
subject to the type of abortion addressed in the bill.
REPRESENTATIVE KOTT advised members that would be correct. He
added that he felt the bill would withstand constitutional muster
without Amendment 2. Representative Kott noted that they now had
two conflicting views, as he suspected there would be many
conflicting views, depending on who a person talked to, and what
side of the issue they stood on.
REPRESENTATIVE BERKOWITZ reiterated that the bill was
unconstitutional in its present form, and he was fully confident
that when it got to the courts, which it would, the courts would
confirm that position.
Number 662
REPRESENTATIVE JAMES pointed out that this was her fifth
legislative session, and she had been a member of the House
Judiciary Committee for two years. She expressed that while
sitting on the House Judiciary Committee, she had seen legal
opinions submitted on both sides of an issue; it is constitutional,
it is not constitutional. Representative James provided an example
whereby the legislature passed legislation that would phase out the
longevity bonus program. Two legal opinions were presented, with
one stating that it would definitely be unconstitutional, and the
other said it was not. That law was challenged, went to court, and
was found to be constitutional. Representative James felt that to
second guess the courts on the issue before members, was not the
issue. The issue before her was whether or not to prohibit a
gruesome procedure, and whether or not it would make good sense to
allow it to occur, where a baby is partially delivered, and then
killed before completely taken from the uterus. That, to her, was
not acceptable, and she felt members had heard plenty of testimony
that indicated there were other methods. Representative James
pointed out that they had just heard testimony which reflected that
the procedure was used as an elective on healthy babies, and that
was what HB 65 was attempting to do; to prohibit the use of that
specific procedure for electives.
REPRESENTATIVE JAMES stated with respect to Amendment 2, separating
it to the third trimester would not necessarily address viability.
She did not believe viability could be separated by saying, "third
trimester". Representative James pointed out that viability in
court cases prior to now, had a different connotation than a third
trimester. She expressed that she would be voting against
Amendment 2.
REPRESENTATIVE PORTER maintained his objection to adoption of
Amendment 2.
CHAIRMAN GREEN requested a roll call vote. In favor:
Representatives Bunde, Croft and Berkowitz. Opposed:
Representatives Porter, Rokeberg, James and Chairman Green.
Amendment 2 failed adoption, 4 to 3.
Number 1000
REPRESENTATIVE JAMES moved to report CSHB 65(JUD) out of committee,
with individual recommendations and attached fiscal notes.
Representative Bunde objected.
REPRESENTATIVE BUNDE advised members that he had a great deal of
empathy for a number of the folks who had testified who were pro-
life, and felt disenfranchised because of Roe v. Wade. He did not
feel, at any time, that the legislation before them would address
that case, or change anything. Representative Bunde expressed that
from that point of view, those people deserved some level of
comfort that their point of view was being addressed.
REPRESENTATIVE BUNDE pointed out that the other side of that
argument did not accomplish much, because it would not get to Roe
v. Wade, and for those who viewed the proposed legislation as the
first step to make abortion illegal, was a delusion.
Representative Bunde recognized that it was unfortunate that some
of the issues members had to face had heavy, philosophical
connotations. He expressed that as in many of those other issues,
it came down, for him, to practical application; what would he do
if he were in those shoes. Representative Bunde stated that for
him, if his wife were to face a life-threatening pregnancy, he
would absolutely want her, and counsel her to have access to an
abortion to save her life. He stressed that he would not trade his
wife for an unborn child; personal, philosophical statement.
CHAIRMAN GREEN asked if Representative Bunde was speaking to
partial-birth abortion, or abortions, in general.
REPRESENTATIVE BUNDE stated that he was speaking to any abortion.
CHAIRMAN GREEN asked that he keep his comments to the issue of
partial-birth abortion, which was what the bill was addressing.
REPRESENTATIVE BUNDE stated that if a partial-birth abortion was
what it would take to save his wife's life, he would accept it, and
encourage it. However, he stated that when he did that, he was
allowing himself that privilege, and he would then have to allow
other people their philosophical approach to the situation, and how
they would make those decisions. Representative Bunde advised
members that he was sympathetic, and understanding of those who
felt that abortion was wrong, partial-birth abortion. Having said
all that, Representative Bunde expressed that he would not keep the
bill from moving forward; however, pointed out that if enacted, and
was challenged, overturned by the courts, or appeared at all in any
way to challenge Roe v. Wade, that he would work against it.
CHAIRMAN GREEN asked if there was anyone else that wished to
discuss the issue of partial-birth abortion.
REPRESENTATIVE JAMES felt it was very important, that when making
a decision of the type of legislation presently before the
committee, that it was a specific procedure that would become
illegal. And a specific procedure that was very gruesome, and
according to all of the testimony, and all of the investigations
that she had had the ability to read and understand, was that it
was not a necessary procedure. She expressed that they had
included the caveat, that in case it was a procedure necessary to
save the life of the mother, that it was a procedure that could be
used. Representative James advised members that she agreed with
Representative Bunde, that the life of the mother was over and
above the life of an unborn child. However, stated that in any
event, she felt they should not stray from the fact, that what the
proposed legislation did was restrict one specific abortion
procedure, and not in any way, shape or form, reduce any ability
for anyone to get an abortion under current conditions.
Representative James felt it was very important to make that clear.
REPRESENTATIVE BERKOWITZ stated that during testimony, members had
heard a lot of what he considered as being fairly sanctimonious,
moralizing about abortion, in general; however, he would restrict
his comments solely to the question of what he termed, late term
abortions because that was the procedure that was at issue. He
felt members, unwillingly, become the vehicles for inflammatory
language which served to divide people of good will by succumbing
to terms with something like partial-birth abortion.
Representative Berkowitz pointed out that it was a procedure, a
medical procedure, and doctors, every doctor he'd known, took a
Hippocratic oath, not to do anything that would jeopardize the
health or well being of a person. It seemed to him that when
members circumscribe the procedures available to a doctor, they
would be limiting the ability of a doctor to treat a patient.
Representative Berkowitz stressed that he knew of no other
procedure the state of Alaska had banned, much less, attached a C
felony to. Representative Berkowitz felt they were taking an undo
step forward; it was not a question in his mind of just limiting a
medical procedure, it was also chipping away at abortion rights.
He believed that was an unfortunate step to take, and was sorry
members were being used as a vehicle for something that was
divisive, pointing out that it was a procedure that had never been
performed in the state of Alaska. Yet, it would cause a great deal
of consternation, in the general public, and a great deal of
outcry, because people felt so passionately about it.
Representative Berkowitz stated that rather than letting a symbolic
bill just die on the vine, the members had chosen to go forward
with it, and he regretted that and would be voting against passage
of the bill.
CHAIRMAN GREEN reminded members that there were drugs used in other
places, and procedures used in foreign countries that were not
acceptable in the state of Alaska, so he thought to limit a
specific abortion procedure, would not create a problem of
attempting to decide whether it would one's spouse, or the baby
that lived. He stated that if it was necessary in order to protect
the mother, that he would never, ever trade his wife for an unborn
child. Chairman Green noted that, by the same token, he would not
sacrifice that child on a "maybe" diagnosis, because he would also
hold the life of the child in high regard. Chairman Green
reiterated that they were not addressing the issue of abortion, but
one specific procedure that would be banned in the state. He
expressed that that was what members should keep focused on, not
the total idea of abortion.
Number 1200
CHAIRMAN GREEN asked whether the objection was maintained; it was.
He then requested a roll call vote. In favor: Representatives
Bunde, Porter, Rokeberg, James and Chairman Green. Opposed:
Representatives Croft and Berkowitz. Therefore, HB 65 was moved
out of the House Judiciary Committee by a vote of 5 to 2.
REPRESENTATIVE BUNDE expressed that he had a bill up in the House
Finance Committee, and he asked that he be excused.
CHAIRMAN GREEN called a brief at-ease at 2:37 p.m. The meeting
reconvened at 2:41 p.m.
HB 53 - LEASE-PURCHASE CORRECTIONAL FACILITY
The next item on the agenda was consideration of House Bill No. 53,
"An Act relating to the authority of the Department of Corrections
to contract for facilities for the confinement and care of
prisoners, and annulling a regulation of the Department of
Corrections that limits the purposes for which an agreement with a
private agency may be entered into; authorizing an agreement by
which the Department of Corrections may, for the benefit of the
state, enter into one lease of, or similar agreement to use, space
within a correctional facility that is operated by a private
contractor, and setting conditions on the operation of the
correctional facility affected by the lease or use agreement; and
giving notice of and approving a lease-purchase agreement or
similar use-purchase agreement for the design, construction, and
operation of a correctional facility, and setting conditions and
limitations on the facility's design, construction, and operation."
Number 1258
REPRESENTATIVE ELDON MULDER, Prime Sponsor, advised members that
the proposed legislation addressed the problem of overcrowding in
Alaska prisons. A chart was provided to committee members that
graphically demonstrated the problem at hand. He pointed out that
in June 1995, the emergency capacity had been reached primarily in
the 6th Avenue Jail, Yukon-Kuskokwim Correctional Center and the
Mat-Su Pretrial facility. He noted that a year later, in September
1996, the chart reflected the Anvil Mountain Correctional Center at
capacity, Wildwood Correctional Center within capacity at times,
and the Meadow Creek Correctional Center within maximum capacity,
occasionally.
REPRESENTATIVE MULDER expressed that when entering 1997, the issue
was red, at emergency capacity. He noted that the Palmer
Correctional Center and the Wildwood Pretrial Correctional Center
fell within capacity, Highland Mountain Correctional Center and
Meadow Creek occasionally fell within maximum capacity thresholds;
however, the state was constantly in excess of emergency capacity
thresholds within all state facilities. Representative Mulder
stressed that the state had a problem.
REPRESENTATIVE MULDER stated that there were other unique problems
faced by the system, of which one involved the insistence of the
courts upon the Department of Corrections to provide adequate
facilities for female inmates. He noted that the court had been
pressuring, and working with the department to try and provide for
a female correctional center.
REPRESENTATIVE MULDER advised members that there was a desire, by
the people in Anchorage, to return the 6th Avenue Jail back to the
community and allow it to be expanded into a museum, which would
result in the need for additional bed space within the municipality
of Anchorage.
REPRESENTATIVE MULDER advised members that HB 53 was an attempt to
provide the least expensive alternative when addressing prison
problems in the state. He stated that it was a fact that the state
would spend more money on corrections in the future, and there was
no way getting around that. Representative Mulder pointed out that
currently, the state spent $107 per day to incarcerate a prisoner
in the state of Alaska. To him, that figure was unacceptable, and
in large part, was driven by the fact that the state had small,
remote, expensive correctional facilities scattered throughout the
state of Alaska.
Number 1586
REPRESENTATIVE MULDER stated that to try and accomplish cost
savings within the system, HB 53 focused on a large, centralized
facility, built and run by a private contractor. He noted that HB
53 was different than the previous year's proposed legislation, and
allowed for the facility to be a straight lease, or a
lease/purchase option. Representative Mulder pointed out that the
bill was not area specific, as it allowed the commissioner the
maximum latitude necessary to make the best decision for the state
of Alaska. It would allow the commissioner to locate the facility
wherever savings could be attained. The bill did specify that the
facility would be constructed and operated by a private contractor.
REPRESENTATIVE MULDER expressed there was true logic of having the
facility built and operated by a private contractor, and the
proposed legislation stipulated that the facility be built and
operated by the same entity for the first five years. He noted
that that would pertain to IRS codes in relation to tax guidelines;
however, beyond that, the reason was that in the past the state had
had problems with the Spring Creek Correctional Center.
Representative Mulder pointed out that the facility was built on
top of a river, which presented flooding problems. He stated that
he felt those problems were driven by the fact that people who
design and build facilities do not have to operate them.
Representative Mulder pointed out that if someone were forced to
operate a facility, they would be far more sensitive to the fine
details of what would make sense, economically, and what would not.
REPRESENTATIVE MULDER advised members that the state spent over $5
million a year employing people in Arizona. He advised members
that the state was relieving its overcrowding problem by sending
more inmates to a private facility in Arizona. Representative
Mulder expressed that he would be proposing to increase the
Department of Correction's budget, this year, to allow for the full
utilization of the 250 Arizona beds which had been allotted for the
state of Alaska.
REPRESENTATIVE MULDER felt that if they were using state dollars,
the state should employ Alaskans, rather than Arizonans. He felt
that was especially true in a time when Alyeska was laying people
off, and major oil companies and other groups were looking at
streamlining their operations and reducing the number of jobs in
the state. Representative Mulder advised members that HB 53 would
present an opportunity to bring jobs to Alaska, and employ
Alaskans.
REPRESENTATIVE MULDER felt that money could be saved by private
construction of the facility. He noted that there had been an
alternative presented by the Governor last year, which would expand
the regional correctional facilities, with an original price tag of
approximately $150 million. Representative Mulder believed that
private contractors had demonstrated that they could build those
facilities for much less than their public counterparts.
Representative Mulder pointed out that he believed it would be
appropriate to say it would cost the state 25 percent more to build
the facility than it would cost the private sector.
REPRESENTATIVE MULDER advised members that another valuable asset
of having a private contractor build the facility was the fact that
the state did not have a large surplus of cash in the state's
general fund. He informed members that it cost the state $59 a
day, per inmate, in the Arizona facility. Representative Mulder
pointed out that that figure not only covered the operation costs
of the facility, but more than covered their costs of amortization
and included a profit margin. He felt similar savings could be
achieved to a per day cost in the state of Alaska if a large,
centralized facility was built and operated by a private
contractor.
REPRESENTATIVE MULDER commended the commissioner of the Department
of Corrections, who, at times, had taken steps to try and rein in
the cost of corrections. He pointed out that she was currently
being pushed to expand her utilization of soft beds for the purpose
of relieving the overcrowding problem. Representative Mulder
pointed out that it would be two years before a new facility could
be brought on line. He felt that by the time the facility was
built, it would be full and the state would be looking towards the
need to build another facility. Representative Mulder explained
that the state was currently experiencing 8 percent growth in
inmate population.
Number 2032
CHAIRMAN GREEN referenced the chart provided by Representative
Mulder and asked what percentage involved misdemeanants. He
expressed that he was with the understanding that approximately 20
percent were misdemeanants.
REPRESENTATIVE MULDER felt that was probably a fair reflection of
misdemeanants occupying hard beds, adding that that was in DOC's
budget analysis; however, he did not have the specifics in front of
him.
CHAIRMAN GREEN asked if there were soft beds, or the electronic
device alternative would be available for the misdemeanants, so
hard beds could be freed up during the process of building a new
facility in the state, from the bid process through completion.
REPRESENTATIVE MULDER expanded his previous testimony prior to
responding to Chairman Green's question regarding misdemeanants.
Representative Mulder stated that there were those who believed,
that when the bill was put forward the previous session, that it
was directed or intended towards a particular site and a particular
vendor. He expressed that that bill allowed the commissioner the
flexibility to negotiate the best deal possible; there was no
directive regarding the location, or the vendor. Representative
Mulder stated that he believed the whole discussion that he raised,
public versus private, had been hurt because of a location issue.
Representative Mulder advised members that the bill before them was
silent regarding the location of the facility. He noted that
whatever the Municipality of Anchorage, the Mat-Su Borough, Seward,
Greely [Ph], Delta Junction, et cetera, decided was fine, but the
commissioner would have to be driven by cost in relation to making
that determination.
REPRESENTATIVE MULDER stated with regard to the removal of
misdemeanants from hard beds, that yes, the state could do that;
however, it would be a very temporary fix. He stated that they
were directing the department, or intend to through the budget
process, to utilize more soft beds and increase, only
incrementally, the amount of risk to the population.
Representative Mulder pointed out that that would only be effective
for a couple of years when considering the 8 percent prison growth
factor.
TAPE 97-36, SIDE A
Number 000
REPRESENTATIVE CROFT advised members that he was curious as to
whether the numbers that related to emergency and maximum capacity,
reflected on the chart, were Cleary numbers, and how the state
would be impacted by going to the federal standard, either in the
numbers or cost. He also asked for an explanation of what the "10
day, 30 - 90" reflected on the chart.
REPRESENTATIVE MULDER advised members that the chart did relate
back to the Cleary Settlement numbers. He stated, for example, the
Anvil Mountain Correctional Center's maximum capacity was 102
inmates, and the emergency capacity was 104 inmates, as determined
by Cleary, and on February 1, 1997, that facility housed 116
inmates. Representative Mulder expressed that the court had
determined a fee ratio of approximately $50 or $75 a day, per
institution, plus an X number of dollars per day system-wide, if
out of compliance, and that would be assessed throughout the course
of a year. He pointed out that the supplemental budget reflected
an amount of over $2 million owed by the state because of prison
overcrowding.
REPRESENTATIVE MULDER could not respond to the question
Representative Croft presented regarding the 10 day, 30 - 90.
REPRESENTATIVE ROKEBERG felt it would be helpful to have a
projection of future occupancy uses and needs in the state for a 10
year plus period, and attempt to put together a legislative
strategic plan that related to facility needs in the state.
Number 288
REPRESENTATIVE MULDER pointed out that the chart reflected a
guesstimate of inmate population from 1984 through 1999, and was
fairly close to tracking where the state might be, and where it
actually was.
REPRESENTATIVE ROKEBERG asked if Representative Mulder was aware if
the state had any type of a strategic plan, or idea in the long
range capital plans, for facilities in the state of Alaska.
REPRESENTATIVE MULDER's response was no.
REPRESENTATIVE ROKEBERG stated with regard to the problem of
prisoner classification, he felt it was important that the people
of the state, and members of the committee, understand the need for
the Department of Corrections to review their classification
process. He pointed out that the Lemon Creek Correctional Center
in Juneau, housed all classification levels, and with that in mind,
he felt it was important, and particularly as it related to any
award of any type of contract for the construction of private
facilities, that the people in the site affected areas understand
that differential.
REPRESENTATIVE ROKEBERG felt the facility needs in the Anchorage
area related to pre-sentenced individuals, and other facilities as
related to the obsolete condition of the 6th Avenue Jail.
Number 466
REPRESENTATIVE MULDER advised members that growth in the Anchorage
area was at the pre-trial and misdemeanant level. He stated that
because they were attempting to accomplish several different
functions with one facility, they visited with private contractors
regarding the ability to do that. Representative Mulder expressed
that when asked if a facility could house medium, pre-trial and
female inmates, the response was that, certainly, that it only
depended on how the facility was configured.
REPRESENTATIVE MULDER stated with respect to the issue of prisoner
classification, that for a number of years the correctional budget
had been high profile and high discussion. He advised members that
was largely due to the fact that there was significant upward
pressure on the department's budget. Representative Mulder stated
that as republicans, they had attempted to keep the lid on it as
much as possible; however, expressed that there was point when the
physical capacity, was the physical capacity, and they were looking
at that threshold in the very near future. Representative Mulder
advised members that the department's classification system was one
of the more aggressive ones in the country that provided a low
threshold of risk to the Alaska population, but that low threshold
of risk had a high cost.
REPRESENTATIVE ROKEBERG referenced the necessity in the Anchorage
area for what he termed "jail beds", versus "prison beds", and the
differential there, and stated that with the majority of judicial
proceedings taking place in the Anchorage area, there was a
physical necessity to have a larger number of beds, in hard beds,
in the Anchorage area, notwithstanding what the public opinion was
relating to the location of the facilities. He expressed that they
were stuck with the need to have more beds in the Anchorage area
whether they liked it or not, and felt that was a necessary point
to make.
REPRESENTATIVE ROKEBERG advised members that HB 53 only provided
for one facility, and he was concerned about the fact that the
state needed a separate, discreet, women's facility in the state of
Alaska. He asked if Representative Mulder would be adverse to
broadening the scope of the bill to provide the commissioner the
flexibility to provide for more than one facility inside the scope
of the bill.
REPRESENTATIVE MULDER believed the commissioner was currently
reviewing plans to convert Highland Mountain from a male facility
to a female facility, and was entertaining discussions with the
community to do that. Representative Mulder stated that before a
new facility was on-line, the state would again be facing prison
overcrowding problems.
REPRESENTATIVE MULDER advised members that when dealing with pre-
trial inmates, a high level of security would be necessary, as well
as the location being feasible.
REPRESENTATIVE ROKEBERG went on record in support of a discreet
women's facility in the state of Alaska. He noted that there was
some severe opposition in the Eagle River area to the conversion of
the Highland Mountain facility. Representative Rokeberg pointed
out that the Highland Mountain facility was designed, in large
part, for specific programs, primarily the sex offender program,
which had proven relatively successful, as he understood it. He
noted that part of the success of the program was the physical
makeup of the facility. Representative Rokeberg was concerned with
the cost effectiveness of converting that prison to a women's
facility, versus building another discreet women's facility, which
could be part of a larger complex within the same complex of any
new facility.
Number 1046
CHAIRMAN GREEN asked where female prisoners were currently being
housed, and at what percent the women prison population was
increasing.
REPRESENTATIVE MULDER advised members that regarding the percentage
of the misdemeanant population, that as of today's count, there
were 3,029 inmates in hard beds, and of those 2,580 were felons, or
85 percent, and 449 were misdemeanants, which was 15 percent.
REPRESENTATIVE MULDER stated with respect to where female inmates
were currently housed, that it was his understanding they were more
or less spread throughout the system. He advised members that
there were women prisoners housed at the Lemon Creek facility in
Juneau, and according to the Superintendent there, Dan Carothers,
they converted a portion of that facility without additional funds,
to become a partial female facility. Representative Mulder pointed
out that the Meadow Creek facility housed female inmates, as well
as the Fairbanks facility. He noted that the 6th Avenue facility
housed some female inmates, as did the Wildwood Pre-Trial and the
Mat-Su pre-trial facilities.
CHAIRMAN GREEN asked if they converted a facility to a women's
facility, and began to bring the state's female prisoners into a
centralized facility, would they be faced with the need for
additional space for females in two years, as was the projection
for male prisoners.
REPRESENTATIVE MULDER expressed that he did not have a breakdown of
the number of female prisoners in the state; however, would get
that information and provide it to the committee.
Number 1240
CHAIRMAN GREEN noted that there were many members of the public
wishing to testify via teleconference, and proceeded with that
portion of the meeting.
Number 1323
DOUG PERKINS, with the Bayshore/Klatt Community Council, testified
via teleconference from Anchorage, Alaska. He advised members that
the community council had not, and in all likelihood, would not
take a position on whether prisons ought to be privatized or not.
MR. PERKINS noted that the proposed legislation suggested that if
prisons were privatized that they should be built by the operator.
He expressed that he could not find that language in the bill, and
pointed out that it could be quite difficult to find a person
experienced in both operating a prison, and constructing one. Mr.
Perkins felt that the Department of Corrections was sufficiently
experienced to have oversight on where a prison ought to be built.
MR. PERKINS stated that the remainder of his comments were mainly
directed towards the amendments Chairman Green would be offering.
He stated that amendment 1 would provide that there had to be some
minimal standards incorporated into a private prison bill. Mr.
Perkins did not feel it was asking too much to insist that the
operator of something as serious and significant as a correctional
facility, have experience operating one. He stated that,
similarly, the employees hired should have some minimal level of
qualifications, and paid a prevailing wage to attract and keep
qualified personnel.
MR. PERKINS reiterated that they would support Chairman Green's
amendment when offered. He reiterated that if the state was going
to entrust a private company to run something as critical as a
correctional institution, they should be required to provide for a
performance bond guaranteeing their performance. Mr. Perkins noted
that because of the escape that took place at the Arizona facility,
they were in the process of having another bill to cover the costs
of escape.
MR. PERKINS agreed with Chairman Green's language that would
require a bond or certificate of insurance sufficient to defend and
indemnify the state and local governments against claims, or
liability, arising from the operation of the correctional facility,
as well as a performance bond.
MR. PERKINS advised members they would also support Amendment 3,
when offered by the Chairman, which called for a meaningful site
selection process. He stated that he felt it was clear from the
language of Representative Mulder's bill, that the bill was limited
to the housing of Alaska prisoners; i.e., charged and convicted
under Alaska law, which he agreed with, although he thought that
language could be fine tuned.
Number 1515
STEVE LARSON, employed by the American Federation of State, County
and Municipal Employees, went on record as opposing HB 53. He
stated that the proposed legislation was extremely speculative.
Mr. Larson advised members there were numerous low cost
alternatives, such as HB 150, that could be used to address the
problem of prison overcrowding.
MR. LARSON advised members that prison privatization had serious
public policy implications, and to his knowledge, that had not been
addressed in any fashion. He pointed out that there was no
documented evidence that private interests could operate a prison
cheaper, or more efficiently than their public counterparts, and
suggested that HB 53 would cause cost shifting, rather than cost
savings. Mr. Larson stated that he felt the primary reason for his
opposition to the proposed legislation, and hoped it would not move
out of committee, was because the majority of Alaskans did not
support the concept. He noted that he had attended public hearings
on numerous occasions, and not once had he heard a member of the
public speak in support of the bill.
MR. LARSON pointed out that they conducted a poll in Representative
Rokeberg's district, and the majority of the people in that
district did not support the proposed legislation. He expressed
that he was aware of upcoming proposed amendments that might soften
the impact of the bill on the public, but there was no guarantee
that those amendments would survive the legislative process. Mr.
Larson pointed out that the next committee of referral, the House
Finance Committee, was the sponsor's own committee. Mr. Larson
asked that the committee form a broad public commission, made up of
neighborhood groups, legislators, corrections employees and city
government to thoroughly study the issue of the need for private
prisons, and to also consider the overall corrections needs for the
state of Alaska. That body could provide judgments to the House
Judiciary Committee to really address the issue, rather than
speculate on spending $150 million, and what he considered an
experiment with public safety in the state of Alaska.
Number 1638
BARBARA WEINIG, President, Rabbit Creek Community Council, advised
members that the community council did not support HB 53. She
pointed out that most members of the council did not feel there
would be any amendments that would make the bill better.
MS. WEINIG noted that she would address one of Representative
Mulder's points, which was that the Spring Creek Correctional
Center was built over a creek and caused flooding in the facility.
She felt members could expect the same type of problem with a bill
such as HB 53, which she stated was crafted for the benefit of one
provider who already had a parcel of land, which happened to be
wetlands. Ms. Weinig expressed the need to conduct a very
intensive site selection process, and take into consideration what
the use of the land was, and how it would look in a few years,
because she felt it would make that section of town wither. Ms.
Weinig expressed that a site selection process was required for all
state facilities, and should also be required for a state
lease/purchase facility.
Number 1734
REPRESENTATIVE MULDER recognized Ms. Weinig's healthy amount of
skepticism; however, advised members that he would challenge her to
find, anywhere in the bill, that makes it site specific. He
acknowledged that that was the fear, but reiterated there was
nothing in the bill that was site specific. Representative Mulder
pointed out that it was totally the commissioner's responsibility
to determine an appropriate location.
CHAIRMAN GREEN took testimony from Fairbanks, Alaska.
Number 1763
CRAIG PERSSON, Vice President, Public Safety Employees Association,
representing state troopers, Corps Service Officers and airport
safety officers around the state, advised members he would like to
commend Representative Mulder for attempting to solve the problem
of overcrowded prisons in the state. However, he did not feel the
situation would get any better with more crime laws being passed by
the legislature, and an increase in state population.
MR. PERSSON advised members the proposed legislation presented a
public safety concern. He noted that there was already a high
turnover of correctional officers in state facilities. Mr. Persson
expressed that those officers were paid a fairly decent wage, but
the Association believed that if a lower wage was paid there would
be a higher turnover rate, which could lead to moral problems, as
well as short cuts being taken and staffing level problems.
MR. PERSSON advised members that another problem involved a cost
concern. He agreed with previous testimony that there was real
concern of a private contractor not meeting minimum standards and
qualifications, and if those folks were paid a higher wage, it
might not be financially feasible. Mr. Persson explained that it
could end up costing the state of Alaska more money in the long
run. He pointed out that there was a study conducted in April
1996, of a private correctional center in the state of Florida,
where per diem costs per inmate were actually higher than a
comparable state facility located in the same region. Mr. Larson
stated that there was also a 6 percent annual increase tacked on to
that rate for the foreseeable future.
MR. PERSSON advised members the Association was also concerned
about the liability. He pointed out that the state would not be
shielded from liability, that a deep pocket for law suits would
arise from the contractor being negligent, or not adhering to
regulations; prisoner rights, et cetera. Mr. Persson expressed
that the state might not have much control, or oversight, to make
sure the correctional facility was being operated in a safe and
legal manner.
MR. PERSSON pointed out that the main concern, regarding costs for
employees, was that they could unionize and have the right to
strike. He believed that would run the costs up even more.
Number 1908
REPRESENTATIVE CROFT asked if prison guards could not strike at the
present time.
MR. PERSSON advised members they could organize, and under the
Public Employee Relations Act, correctional officers were Class 1
employees and were exempt from striking.
REPRESENTATIVE CROFT asked if it consisted then, of mandatory
arbitration.
MR. PERSSON advised members that would be correct, they had binding
arbitration.
Number 1930
REPRESENTATIVE JAMES stated with respect to unionizing, that the
state was currently considering whether or not people had to be
paid overtime rates for hours worked over 8 hours. It was her
understanding that state correctional officers worked 12 hours a
day, seven days a week. She pointed out that a private prison
would not involve public employees, and would be subject to
overtime over 8 hours.
MR. PERSSON agreed that they would be entitled to overtime pay for
hours worked over 8 hours a day.
CHAIRMAN GREEN accepted testimony from Kenai, Alaska.
JOAN BENNETT-SCHRADER CLUW, Mt. Redoubt Alaska Chapter of Coalition
of Labor Union Women, advised members that last year during the
numerous discussions on privatizing prisons in the state of Alaska,
the coalition wanted to be reassured that the state of Alaska would
be held harmless if prisoners would be incarcerated in private
prisons. She stated that she could not find that reassurance any
where in the proposed legislation, HB 53, and asked if the House
Judiciary Committee would address that issue.
MS. CLUW pointed out that there was another matter they would like
to bring to the attention of the committee. She advised members
they had great concern of the department's classification system,
and felt that there could be some inadvertent misuse of the system.
Ms. Cluw explained with regard to the Spring Creek Correctional
Center, the state's maximum security prison, that inmates are kept
in that facility the last six months of their incarceration. Ms.
Cluw advised members that was not good business. She felt the
proposed amendments might assist the intent of the bill; however,
asked when the communities would have access to them in order to
make appropriate comments.
CHAIRMAN GREEN expressed that the committee was not considering the
amendments at this meeting, and he would make the proposed
amendments available to the LIO offices.
JOHN YARBOR advised members he was employed by Alaska State
Employees, American Federation of State, County and Municipal
Employees, Local 52. He stated that they opposed HB 53. Mr.
Yarbor noted that it was the second year the legislation had been
considered by the legislature. Mr. Yarbor pointed out that the
bill had been amended time and time again, and agreed with Mr.
Larson's request that the House Judiciary Committee appoint a
commission to conduct a thorough study on the issue of private
prisons.
MR. YARBOR referred to the testimony of Representative Mulder who
expressed the facility was not site specific, or directed at one
contractor. Mr. Yarbor pointed out that it was his understanding
there was only one company in the state of Alaska that would bid on
the project. Mr. Yarbor stated that due to the fact there was a
problem with the way the site proposal was handled by the Anchorage
Planning Commission, it was going before the voters to be
corrected. Mr. Yarbor was hopeful the committee would hold the
proposed legislation for further study purposes.
MR. YARBOR advised members he had been a DOC employee for 20 years
and had just retired. He felt that with a study, it could be shown
that some of Representative Mulder's facts were off and needed
correcting. Mr. Yarbor expressed that in 1977 the state's
correctional facilities were overcrowded, as well as in 1979 and
1980. He pointed out that overcrowding was something that was
inherent with corrections, and it was the state who had to deal
with it. Mr. Yarbor emphasized that it was the state's
responsibility, and that responsibility could not be legislated
away.
MR. YARBOR pointed out that with a thorough study, and a
legislature that was sincere in looking at ways to handle the
situation; unlike other states, such as Texas who had many private
prisons, and a very large problem, the state of Alaska would have
the opportunity to study and draw from all the states who had
experience in the private prison industry. He felt that the state
would come out far ahead if the time was taken to do that.
JULIE OLSON, President, Oceanview/Old Seward Community Council,
advised members that the council opposed HB 53 for three reasons.
They believed that public involvement of the process should be a
requirement, and provisions that would ensure public safety should
be included in the proposed legislation, such as requiring minimal
staff qualifications, some requirement of inmate and staff ratios,
as well as ACA accreditation.
MS. OLSON pointed out that there was no cost savings to the state
required in the proposed legislation. She noted that generally,
privatization was thought to bring the forces of a free market
economy to the public sector. Ms. Olson advised members that
turning over, what were historically public facilities, was
supposed to result in more efficiency, lower costs and better
solutions or values. She noted that competition, many times, did
provide those benefits. Ms. Olson advised members that HB 53 was
worded so narrowly that it virtually eliminated most of the
possible competition in that market.
MS. OLSON expressed that HB 53 did not allow the professionals in
the corrections field to evaluate all the options available to make
the best possible decision for the state. She pointed out that
other states, who were facing overcrowding in their prisons, were
considering a variety of options to relieve the overcrowding
problem, that included such things as electronic monitoring, or
boot camps, which she felt were options the state and DOC should
consider.
MS. OLSON referenced Section 3, and stated that it was so specific
in its wording that it limited the ability of DOC to seek solutions
for the prison overcrowding problem. She stated that the section
stated that DOC would have no more than one agreement. Ms. Olson
advised members that in order to promote competition, and better
programs, she felt DOC should be allowed to contract with one or
more providers.
MS. OLSON pointed out that Section 3(c), (1) required a inmate
population of 500 to 800 prisoners. She advised members that to
specify the prison population limited the possible choices
available to the DOC. Ms. Olson pointed out that none of the state
facilities housed more than 500 inmates at the present time, and
questioned whether that population would increase efficiencies. Ms.
Olson felt that existing facilities could be increased in size, in
order that they could gain those same economies of scale that
Representative Mulder believed was available to the private sector.
Number 2300
REPRESENTATIVE MULDER pointed out that there had been several
statements about the fact that the so-called, rent-a-cops, or
people who would be employed in the private facility would be less
skilled than their public counterparts. He referred to page 6,
Section 4(e), lines 23 through 25, which stated, "the Department of
Administration shall require that persons employed by the
contractor as correctional officers in the facility meet the
requirements of AS 18.65.130 through AS 18.65.290 that are
applicable to correctional officers.", and pointed out that those
were the standards and levels of training that would be required of
the public counterparts. Representative Mulder explained that
private, correctional officers would be required to have the same
level of training, skills and ability as their public counterparts.
Number 2341
B.K. POWELL, Spokesperson for the South Anchorage Coalition,
advised members that they were in support of the amendments that
would be put forth by Chairman Green. He referred to
Representative Mulder's statement that the intended facility was
not site specific. Mr. Powell advised members that they felt it
was site specific, or municipality specific. He referred to
Section 2(a), noting that the word "municipality" came into play.
Mr. Powell stated that being a citizen of the state of Alaska, he
did not know how many municipalities there were in the state;
however, felt there were very few, and to him that was very site
specific. Mr. Powell suggested that the words "political subgroups
or communities" would provide for more of a broad based
interpretation.
MR. POWELL felt that HB 53 did not clearly address operational
guidelines, and as a resident of South Anchorage, he believed there
would be safety concerns. He pointed out that the bill did not
address a balanced site selection public process, again referring
to "municipality". Mr. Power expressed that Representative Mulder
stated that a pre-trial facility would not be appropriate in Delta.
Mr. Power clarified that he was referring to prisons, not pre-trial
facilities, or jails.
MR. POWELL reiterated that there were no conclusions relating to
cost savings in the proposed legislation. He stated, also, that
there was little information on correctional philosophy; i.e.,
economic factors to add inmate population characteristics. Mr.
Powell expressed that charts and graphs were okay, but added that
there had been a presidential candidate who used charts and graphs,
and members knew what happened to him.
MR. POWELL stated that there were examples across the country where
new prisons were sited next to existing facilities for cost saving
purposes. He pointed out that one reason for that was that the
support services, and the philosophy and any other philosophical
concerns one may have about the operation of the prison, would
already be in place. Mr. Powell noted that that was not an
"Anchorage" definition.
MR. POWELL pointed out there were 58,000 prisoners housed in
private facilities throughout the United States; that equated to
1160 private prisoners per state. He expressed that most of the
private facilities were located in the southern tier of the United
States, and operate fairly well if they follow certain guidelines,
and he did not feel HB 53 considered, that it was, more or less, a
"cart before the horse" syndrome in the state of Alaska.
MR. POWELL concluded his testimony with the question, "Does the
state want to experiment with a private prison process?"
TAPE 97-36, SIDE B
Number 000
ED EARNHART advised members that through two community council
meetings, it was found that most of the people were opposed to even
the idea of having private prison facilities. Mr. Earnhart stated
with respect to the state's needs, that the state was making
changes in the juvenile system, and changes in education, and that
there was a lot in play within the state and nationally, that was
reducing crime rates. Mr. Earnhart could not understand the
apparent urgency to build new prisons because the state felt the
space would be necessary some time down the road. He pointed out
that there was no sound evidence to that effect, and referenced
prior testimony which reflected that the state had always been
faced with the problem of overcrowded prisons. Mr. Earnhart stated
that that was not healthy, but it had not done the state in, and he
could not understand why the proposed legislation stated that there
had to be a 750 to 1000 bed facility, and do it as soon as
possible.
MR. EARNHART advised members that many people had pointed out that
there was room to expand existing facilities, and he did not feel
any bill should pass, at this time, directed at the construction
and private operation of a prison facility in the state of Alaska.
CHARLES O'CONNELL, Business Manager, Alaska State Employees
Association, advised members he was opposed to HB 53. He stated
that Representative Mulder, when he introduced the bill and
explained it's intent, used the terms "economies of scale". Mr.
O'Connell expressed that economies of scale, in corrections, was
very real. He stated that the per bed costs go down with a larger
facility. Mr. O'Connell pointed out that costs of operating the
Anvil Mountain Correctional Center and the Ketchikan Correctional
Center was much higher than it was at Cook Inlet, Spring Creek,
Palmer Correctional Center or the Wildwood Correctional Center. It
was Mr. O'Connell's understanding that the costs at those four
facilities, on a per day basis, was approximately $61 a day.
MR. O'CONNELL stated that it was also his understanding that the
Arizona contract, at the present time, was $60.47 per day. He
advised members that those inmates could be housed in the state of
Alaska just as cheaply as they were being housed in Arizona
currently.
MR. O'CONNELL pointed out that the approach of building a "best
deal" that would hold up to 800 or more inmates, would not meet the
prison needs of the state. He noted testimony relating to jail
beds and prison beds, and advised members that building one huge,
centrally located prison facility, would not improve overcrowding
problems in other areas of the state. Mr. O'Connell stressed that
the need of the Department of Corrections was not solely a south
central need, but a statewide need.
MR. O'CONNELL pointed out that members were talking about public
safety. He stated that the Department of Corrections in Alaska,
using public facilities and public employees, had never had an
inmate murdered, never had a prison guard murdered, and that no
other state in the United States of America could say that. Mr.
O'Connell expressed that the state had a system that was safe, and
although there had been a few attempted escapes, there had never
been an escape where the inmate was not subsequently apprehended.
MR. O'CONNELL expressed that the final point he would make related
to being a professional negotiator. He stated that what was being
done, by creating a sole source contract, would be the creation, in
effect, of creating a monopoly. Mr. O'Connell stated that the
state would be paying a private contractor to construct a 800 bed
facility, and all that contractor would have to do to get the price
that they demand, was to say to the state, "take the inmates back,
or pay my price." Mr. O'Connell pointed out that the state would
not have beds available to take the inmates back. He advised
members that it was a very bad economic move to take the path of
the proposed legislation. Mr. O'Connell encouraged that members
consider HB 53 fairly, and hoped that it would never see the light
of day.
Number 282
REPRESENTATIVE MULDER referred to Mr. O'Connell's statement
regarding a "sole source contract", and pointed out that it was
anything but a "sole source" contract, unless the Department of
Administration determined that that was how they wanted to write
it. He stated that the bill provided authority to the DOC, through
the Department of Administration, to put the project out to
competitive bid for the services stipulated, the prevailing bid
would be awarded, established, and guaranteed for the life of the
contract.
CHAIRMAN GREEN asked that Forrest Browne, with the Department of
Revenue, and Margot Knuth, with the Department of Law step forward
and provide testimony on HB 53.
Number 325
MARGOT KNUTH, Assistant Attorney General, Department of Law,
advised members she was working with the Department of Corrections,
and the Governor's Cabinet on Youth and Justice this legislative
session. She expressed that she had taken a crash course on the
state's correctional system, and had learned quite a bit.
MS. KNUTH advised members that she had prepared a chart, for the
Department of Corrections, that reflected all of the correctional
facilities in the state; how many prisoners the facilities were
originally built for, the maximum capacity, emergency capacities,
and what their expansion capabilities were. The chart would also
reflect the costs of expansion, how many beds would be provided at
that cost, and what it amounted to on a per bed basis.
CHAIRMAN GREEN felt that would be very helpful and educational for
the committee, and asked Ms. Knuth if she could have that available
at the next committee meeting.
MS. KNUTH advised members she would be available to present that at
the next hearing, and agreed that it would be enlightening and make
it easier for members to follow along on some of the questions.
She pointed out that the state had definite needs for additional
correctional facility hard beds. Ms. Knuth expressed that the
fundamental plan required three things; an attempt to reduce the
number of prisoners going to hard beds, in accordance with public
safety, and to try to get people out of hard beds as soon as
possible. Ms. Knuth pointed out that the third component was the
need to expand the number of hard beds in the state.
MS. KNUTH pointed out that the administration's plan called for
between 1000 and 1300 new beds in the next six years.
Number 440
REPRESENTATIVE JAMES asked if the private industry provided all the
soft beds in the state.
MS. KNUTH did not know for sure, but thought that all the halfway
houses in the state were privately owned and operated. An
unidentified speaker stated that that was not so.
REPRESENTATIVE JAMES pointed out that if soft bed inmates were
taking up so much space in the hard bed facilities, and soft beds
were being provided by private industry, why were they not building
more soft bed facilities for inmates taking up hard bed space.
MS. KNUTH advised members that she understood there were 75 soft
beds that had been made available; however, the state had not
bought those beds yet. She expressed that the hard part was
juggling everything together in order that there would be a place
for everyone.
REPRESENTATIVE JAMES pointed out that the bottom line of the "hard
part" was where, because the public did not want the correctional
facilities built close to them, that it was even hard to find a
place to locate a soft bed facility.
MS. KNUTH pointed out that there were communities who were
interested in having facilities built in their area. She advised
members that the administration had sort of a five prong test for
where to expand, of which one of them was working with the
communities. Ms. Knuth expressed that the city of Seward was
interested in expanding the Spring Creek facility, which was not at
the top of the Department of Corrections' list for places to
expand; however, it was necessary to factor that in, and suddenly
it moved up, in terms of the department's priorities, because the
city wanted it and were willing to cooperate in the expansion
process.
MS. KNUTH advised members that safety was a factor, as well as cost
effectiveness. She pointed out that the state owned land near
Palmer, Alaska, and that there was a desperate need for medium beds
in the state. Those beds could be provided in Palmer at the
cheapest rate because a core facility already existed, and ready
for expansion. Ms. Knuth stated that, normally, they consider
close to $100,000 to $150,000 per bed; however, could expand the
Palmer facility for less than $60,000 per bed.
CHAIRMAN GREEN asked that Ms. Knuth and Forrest Browne be available
for the next hearing, and closed public testimony on HB 53, except
for their comments which would be taken at that time.
ADJOURNMENT
Number 673
Chairman Green adjourned the House Judiciary Committee meeting at
4:02 p.m.
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