Legislature(1997 - 1998)
02/05/1997 01:38 PM Senate JUD
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SENATE JUDICIARY COMMITTEE
February 5, 1997
1:38 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Drue Pearce, Vice-chair
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SENATE JOINT RESOLUTION NO. 3
Proposing an amendment to the Constitution of the State of Alaska
limiting the rights of prisoners to those required under the
Constitution of the United States.
HEARD AND HELD
CONFIRMATION HEARING - Barbara Brink, Public Defender
SENATE BILL NO. 39
"An Act relating to hazardous chemicals, hazardous materials, and
hazardous waste."
MOVED CSSB 39(JUD) OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SJR 3 - No previous Senate committee action to report.
SB 39 - See Senate Judiciary minutes dated 2/3/97.
WITNESS REGISTER
Senator Dave Donley
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of SJR 3
Margo Knuth
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Commented on SJR 3
Barbara Brink
Public Defender Agency
Department of Administration
900 W 5th Ave., Ste 200
Anchorage, AK 99501-2090
POSITION STATEMENT:
Annette Kreitzer
Legislative Aide
Alaska State Capitol
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified for the sponsor of SB 39
ACTION NARRATIVE
TAPE 97-5, SIDE A
Number 00
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:38 p.m.. Senators Taylor, Miller, Parnell and Ellis
were present. The first order of business was SJR 3.
SJR 3 PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS
SENATOR DAVE DONLEY , sponsor of SJR 3, explained the legislation
adds a provision to the Alaska Constitution adopting the prisoners'
rights standard contained in the U.S. Constitution as the
appropriate standard to use in Alaska. Current Alaska standards
are based on the Cleary consent decree, which is based on state and
federal constitutional law, but does not identify which elements
are from each. Lack of identification makes litigation difficult.
Because the state and federal constitutions differ, the state
courts may adopt different standards than those based on federal
case law. SJR 3 adopts a single federal standard for dealing with
prisoners' rights in Alaska.
Number 036
SENATOR ELLIS asked if the federal corrections system is based on
the principle of incarceration, while the state system is based on
the goal of rehabilitation to further enhance public safety after
prisoners are released. He questioned whether SJR 3 would nullify
the goal of rehabilitation as a prime objective of Alaska's penal
system and whether passage of SJR 3 would overturn the Cleary decree
SENATOR DONLEY explained the Alaska Constitution, as amended in
1994, establishes five goals for prison administration: public
protection, rehabilitation of the offender, victims' rights,
restitution to victims, and community condemnation. Those goals
will remain the constitutional guides for prison administration in
Alaska, but the issue of cruel and unusual punishment will fall
under federal guidelines. Cell size and access to certain
facilities are examples of issues of cruel and unusual punishment
that would be determined by federal guidelines. Senator Donley did
not believe those issues have conflicting goals.
Number 075
SENATOR ELLIS asked how passage of SJR 3 would affect the question
of the constitutionality of a death penalty in Alaska. SENATOR
DONLEY replied, in his opinion, it would have been difficult to
argue the constitutionality of a death penalty in Alaska prior to
1994 because the constitution provided only two goals of the prison
system: reformation and public protection. One would have to argue
the death penalty was necessary for public protection which would
be difficult since Alaska provides the option of absolute, life-
time incarceration. The addition of the standard of community
condemnation in 1994 has opened the door for a death penalty a
little more. Because the death penalty has not been in existence
since the Alaska Constitution was ratified, no litigation regarding
this question has occurred in Alaska, so this area of law remains
unexplored and court rulings remain difficult to predict.
Number 114
SENATOR PARNELL requested a comparison of prisoner restrictions
based on state and federal constitutions. SENATOR DONLEY replied
the Division of Legal Services is unable to provide a breakdown
because the settlement presents a total condition analysis and
specifically states it is pursuant to both constitutions. The
Courts have never identified which conditions are required under
federal or state law. As long as the potential for a dual system
exists, the court will not definitively discriminate between the
two. A whole body of federal cases defining certain standards
exists, which influence, but are not definitive, over state law.
The delineation is very confusing and frustrating. He offered to
provide Senator Parnell with a list of those federal cases that
deal with prisoners' rights.
SENATOR PARNELL requested the list be included in committee packets
and asked whether any other state has adopted similar legislation.
SENATOR DONLEY was not aware of any.
Number 155
SENATOR ELLIS requested SJR 3 be held in committee for further
consideration. CHAIRMAN TAYLOR agreed, and noted his belief that
SJR 3 is innovative and provides the state the opportunity to
revisit the entire Cleary question.
SENATOR DONLEY remarked the Cleary settlement is unusual in that i
contains no less than four separate provisions disallowing
revisitation. A U.S. Supreme Court decision, however, permits
states who have negotiated such settlements to renegotiate if a
substantial change in conditions occurs. SJR 3 represents the type
of condition change required for renegotiation. The Attorney
General has not pursued the Legislature's request to revisit the
Cleary settlement because no substantive change in conditions has
occurred.
Number 189
CHAIRMAN TAYLOR discussed the prison overcrowding problem and the
court order entered by Judge Hunt. The cost may be as high as $3.5
million per year. Statistics for the month of January show every
penal institution in the state full beyond maximum occupancy,
therefore Alaska is still in contempt of the court order. He
questioned whether passage of SJR 3 and use of the federal
standard, to determine cell size and occupancy, would eliminate the
overcrowding problem.
SENATOR DONLEY commented the federal standard for multi-prisoner
unit prohibitions is very different from the standards set in the
Cleary settlement, which discourages more than two prisoners per
unit. Most private institutions use the federal guidelines. Years
of federal case law have been, and can be, used as a frame of
reference for federal constitutional requirements; the State of
Alaska does not have cases to use to determine what the state
consitution requires.
Number 231
MARGO KNUTH , Assistant Attorney General, encouraged the committee
to hear from the Department of Law about the possible impact of SJR
3 on the Cleary settlement, and from the Department of Corrections
about the criteria used to determine overcrowded conditions in
state prisons. She is confident the state could not do better
using the federal standards to determine overcrowding. The number
of prisoners per cell is only one of a number of factors
determining prisoner overcrowding. Alaska prisons were designed to
house a much lower population than they currently house. The most
serious problem is the physical limitations of existing facilities.
Prison expansion will need to be addressed by this Legislature.
CHAIRMAN TAYLOR thanked Ms. Knuth for her comments.
CONFIRMATION HEARING: PUBLIC DEFENDER
BARBARA BRINK , acting director of the Public Defender Agency, spoke
to the committee about her job, the agency, and her desire to
continue in the role of public defender. She has been practicing
law in the Public Defender Agency for 15 years, has handled felony,
misdemeanor, and appeals cases and all stages of cases from
investigation to trials, appeals, sentencing, and post conviction
relief. She has represented a variety of clients in a variety of
locations, and seen issues from a variety of angles. She has
traveled to all public defender offices except the new office in
Dillingham. She feels experienced in all phases of the agency's
operations and is familiar with its needs. Eight years ago she was
appointed as deputy director and began working on the
administrative aspects of the agency including personnel and
legislative matters. She has worked with the Departments of Law,
Corrections, Health and Social Services, and the Court System to
draft legislation to benefit all Alaskans. She believes Alaska, as
a state, can be judged by how its less fortunate citizens are
represented and treated. The Public Defender Agency represents the
poor and indigent, often mentally or physically disabled,
undereducated, and minority clients. She gets to communicate that
side of clients others do not get to see to others in the system so
they can appreciate the whole person when making decisions about
that individual. The Public Defender Agency is constantly asked to
do more with less. Since 1988, its caseload has increased almost
45 percent, while its budget has increased less than 15 percent.
She sees the areas needing improvement as: consolidating some state
services, eliminating duplicated efforts, and joining staff
efforts. She has proposed a capital project in the Public
Defenders Agency budget to obtain legal technology for rural
offices so that staff can complete legal research more quickly and
efficiently.
Number 337
SENATOR MILLER asked Ms. Brink to update the committee on the issue
of determining client eligibility to ensure that those receiving
services cannot afford private counsel.
MS. BRINK answered the Court System determines eligibility and
assigns cases to the Public Defender Agency. A 1994 Legislative
Budget and Audit report identified problems in this area, regarding
lack of standardization of eligibility criteria. The Court System
believes flexible guidelines are necessary to accommodate the
differences in access to legal services around the state, as well
as different lifestyles. A court system committee has been
studying the issue to prepare new standards of indigency.
Additionally, the Legislature passed a bill last session which
eliminates the Public Defender Agency's ability to self appoint.
In the past, a person being investigated or suspected of a crime
would occasionally seek advice from the agency. The ability to
represent those clients has been eliminated by statute.
Number 368
SENATOR PARNELL asked Ms. Brink to address concerns presented to
the committee by Mr. Holmes. MS. BRINK noted Mr. Holmes provided
her with a copy of his letter to the committee. She and Mr. Holmes
were engaged in an ongoing philosophical debate about what was best
for the client. Mr. Holmes' philosophy was basically that of
anarchy: he thought he was serving his clients best by being non-
cooperative, asserting every right whether valid or invalid,
asserting every claim, whether frivolous or non-frivolous, and
backing up the system. She disagrees with that approach and
believes it is important for a lawyer, in any case, to represent an
individual and ascertain his/her priorities, and to represent that
client to the best of one's ability. If, in the big picture, that
helps the system, so be it, if not, the client's needs and concerns
should be the priority. Mr. Holmes' letter demonstrates a
different approach to take to the practice of law in the criminal
justice system, one she does not subscribe to. She believes his
concerns are sincere; his number one concern in all cases is good
representation for the citizens of Alaska.
Number 391
CHAIRMAN TAYLOR appreciated Ms. Brink's candor and attitude. He
often felt the Public Defender Agency, and others, misuse clients
by plugging up the system, or routinely disqualifying particular
judges in all public defender cases.
There being no further testimony or discussion about Ms. Brink's
appointment, SENATOR MILLER made a motion to move the committee
report out of committee with individual recommendations. There
being no objection, the motion carried.
SB 39 HAZARDOUS CHEMICALS, MATERIALS, AND WASTE
SENATOR PARNELL moved to adopt the draft committee substitute for
SB 39 (0-LS0214\B) as CSSB 39(JUD). There being no objection, the
motion carried.
ANNETTE KREITZER, staff to Senator Leman, sponsor of SB 39,
explained four technical changes made in the committee substitute.
In response to two concerns raised during the previous hearing, she
clarified the purpose of SB 39 is to ensure that businesses
required to report hazardous substances, chemicals and waste can do
so as simply as possible. The requirement to report consumer
commodities of a hzardous material in a quantity of more than 1,000
pounds was aimed at large stores such as K-Mart and COSTCO. Local
fire departments know what materials are in those stores, therefore
an additional placard is unnecessary. The definition of "hazardous
chemical" on page 4 lines 16-17, is taken from the OSHA definition
(29 C.F.R. 1910.1200(c). The exceptions, listed on lines 18-30,
are derived from 40 C.F.R. 370.2 (Emergency Planning and Community
Right-to-Know Act). SB 39 makes no changes to existing federal
law, it further codifies it.
SENATOR PARNELL asked Ms. Kreitzer to respond to the concern about
the compressed gas requirement that was raised during the previous
hearing. MS. KREITZER explained this issue was discussed in the
Senate Resources Committee at length last session. SB 39 removes
two provisions from statute that are not required by federal law.
Those provisions read:
Page 4, lines 15-16: (2) [A CONSUMER COMMODITY OF A HAZARDOUS
MATERIAL IN A QUANTITY OF MORE THAN 1,000 POUNDS]
and lines 24-25: (7) [COMPRESSED GASSES EQUAL TO OR MORE THAN
200 CUBIC FEET AT STANDARD TEMPERATURE AND PRESSURE].
She noted the goal of SB 39 is to require one reporting form that
will satisfy the reporting requirements for the Municipality of
Anchorage, the Emergency Response Commission, and the federal
requirements for MSDS sheets.
SENATOR PARNELL asked if the reporting requirement for compressed
gasses is still mandated by the Municipality of Anchorage. MS.
KREITZER stated it is, and added this discussion began with SB 33,
which was enacted several years ago. The discussions have been
ongoing, with the goal of streamlining reporting requirements so
that an electronic format can be used.
There being no further testimony or discussion, SENATOR MILLER
moved CSSB 39(JUD) out of committee with individual
recommendations. There being no objection to the motion, it was so
ordered.
CHAIRMAN TAYLOR adjourned the meeting at 2:10 p.m.
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