Legislature(1999 - 2000)
01/25/1999 01:35 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
January 25, 1999
1:35 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator Dave Donley
Senator John Torgerson
Senator Johnny Ellis
MEMBERS ABSENT
COMMITTEE CALENDAR
SENATE BILL NO. 2
"An Act providing for civil commitment of sexually violent
predators."
-HEARD AND HELD
SENATE JOINT RESOLUTION NO. 2
Proposing an amendment to the Constitution of the State of Alaska
relating to the rights of prisoners under the criminal
administration section.
-MOVED SJR 2 OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 2 - No previous action to report
SJR 2- No previous action to report
WITNESS REGISTER
Ms. Tam Cook
Director
Legislative Legal and Research Services
130 Seward Street, Suite 409
Juneau, AK 99801
POSITION STATEMENT: Commented on SJR 2
Ms. Anne Carpeneti
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99801-0300
POSITION STATEMENT: Commented on SJR 2, SB 2
Ms. Juli Lucky
Staff to Senator Rick Halford
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 2
Mr. Carl Brimner
Director
Division of Mental Health and Developmental Disabilities
PO Box 110620
Juneau, AK 99801
POSITION STATEMENT: Commented on SB 2
Mr. Jerry Luckhaupt, Attorney
Legislative Legal and Research Services
130 Seward Street, Suite 409
Juneau, AK 99801
POSITION STATEMENT: Commented on SB 2
Ms. Jean Steele
National Association for the Mentally Ill
PO Box 837
Homer, AK 99603
POSITION STATEMENT: Commented on SB 2
Ms. Patricia Kouris
PO Box 241332
Anchorage, AK 99524
POSITION STATEMENT: Commented on SB 2
Mr. Byron Charles
PO Box 23316
Ketchikan, AK 99901
POSITION STATEMENT: Supported SB 2
ACTION NARRATIVE
TAPE 99-3, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:35 and announced SJR 2 would be the first order of
business.
SJR 2-CONST. AM: PRISONER'S RIGHTS
SENATOR DAVE DONLEY, prime sponsor of SJR 2, presented the bill to
the committee and said this legislation proposes an amendment to
the Alaska Constitution to be voted on in the next general
election. The bill would amend article 1, section 12 of the Alaska
Constitution to limit the rights of convicted prisoners in Alaska
to those to which they are entitled under the United States
Constitution. SENATOR DONLEY noted that the legislature passed a
similar bill last year but that bill applied to the entire
constitution and this bill affects only those rights which fall
under a specific section of the constitution: article 1, section
12.
SENATOR DONLEY said this amendment might affect the right of
prisoners to have a say in the location of their incarceration and
the individual right to access programs while incarcerated and may
also give the State standing to revisit the Cleary decision. The
Cleary settlement governs prison administration in Alaska and
SENATOR DONLEY believes there is no basis for the decision in
either state or federal constitutional law.
Number 110
SENATOR DONLEY remarked that the Cleary decision removed any
flexibility the State had in prison administration and SJR 2 would
allow the case to be revisited, provided the Department of Law was
willing to do it.
More generally, SENATOR DONLEY proposed that this amendment may
prevent untold future problems that could result from bad Supreme
Court decisions. SENATOR DONLEY said as recently as 1997 the court
has expanded prisoners' rights even in the face of clear evidence
that was not the intent of Alaska's constitutional convention.
SENATOR DONLEY concluded this bill does not deal with as many
issues as last year's proposal did, but it is still a useful
initiative to put before the voters.
Number 186
MS. TAM COOK, Director of Legislative Legal Services, came forward
to explain why this initiative should pass constitutional muster
even though last year's did not. MS. COOK stated that the Alaska
Supreme Court issued a preliminary decision that suggested the
legislature has the power to propose amendments to the State
Constitution, but not revisions of it. The court decided the scope
of last year's amendment was so broad it constituted a revision of
the Constitution rather than an amendment.
MS. COOK explained that since the court has only issued a
preliminary decision, her understanding of the reasoning behind
their ruling is somewhat limited. MS. COOK observed the court
focused on the number of sections of the Constitution that would be
affected by the initiative and found 12. Two of the sections the
court focused on, protection from excessive bail, excessive fines
and unusual punishment, and the rights stemming from the principle
of reformation, are the sections that will be influenced by this
new, narrower amendment in SJR 2. MS. COOK said the hope is that
the initiative has been narrowed enough to be deemed an amendment,
rather than a revision, by the court.
SENATOR ELLIS asked how it is possible to change the principle of
reformation without affecting other sections of the Constitution by
extension. SENATOR ELLIS said this doesn't seem like the best
strategy to get this through the court. MS. COOK replied SENATOR
ELLIS'S objection might be valid but in the preliminary decision
the court identified the principle of reformation as a separate
right. MS. COOK concluded this may be the best shot at trying to
get something through.
Number 265
SENATOR HALFORD asked when the full written opinion of the court
could be expected. MS. COOK answered she has no expectations in
this regard. CHAIRMAN TAYLOR commented that the failure of the
court to issue timely decisions is a problem he would like the
committee to address if there is no change. CHAIRMAN TAYLOR said
the Supreme Court is supposed to consider cases within four to six
months and he knows of cases that have dragged out 18 months or so.
CHAIRMAN TAYLOR remarked this is offensive and he believes the
Supreme Court has a duty and an obligation to act with dispatch.
CHAIRMAN TAYLOR expressed concern that this decision precludes any
amendment to the Constitution. He suggested an amendment to any
provision of the Constitution would have some impact on other
peripheral sections and would be subject to the court's ruling. MS.
COOK replied that the court has indicated it will consider
amendments on a case by case basis and it remains to be seen how
the court will interpret the legislature's ability to propose
amendments to the constitution. MS. COOK said case law will
accumulate from this and future decisions.
CHAIRMAN TAYLOR commented that the court can read newspapers, too,
and seems willing to take on some issues and not others. SENATOR
DONLEY added the real problem is that the court did not allow a
full briefing on this issue. SENATOR DONLEY also said that he has
never in the history of our nation's jurisprudence seen an
incidence like this in which a court has amended a proposition put
forth by the legislature and then placed it (as amended) on the
ballot. SENATOR DONLEY remarked the Supreme Court seems to be in a
"very creative mode."
Number 376
MS. ANNE CARPENETI, representing the Department of Law, said the
department was caught off guard by the 24-hour rule and she was
pinch-hitting for Mr. Dean Guaneli who would be the more
appropriate person to speak to this legislation.
MS. CARPENETI said she understands CHAIRMAN TAYLOR's frustration
with the court but is unable to address it. MS. CARPENETI said the
preliminary decision is based on a California decision (RAVEN v.
DEUKMEJIAN) which rules that both quantitative and qualitative
bases are used to determine whether a constitutional change meets
the threshold of a revision rather than an amendment.
MS. CARPENETI said we do not know exactly the basis on which the
Alaska Supreme Court came to their decision, but we know that a
more limited approach is more likely to get on the ballot. MS.
CARPENETI stated that Mr. Guaneli wanted to advise the committee
that since they seem most concerned with the principle of
reformation, they may want to draft the amendment in a way that
affects only that provision.
Number 405
SENATOR ELLIS asked SENATOR DONLEY why the bill limits prisoners'
rights to those allowed by the federal constitution, rather than
directly repealing the reformation rights granted by the State
Constitution. SENATOR DONLEY replied he agrees with the principle
of reformation in the Constitution and the intent behind it. He
explained the Constitutional Convention intended the principle of
reformation to be a guideline, not an individual right as it has
been misinterpreted by our court. SENATOR DONLEY said by setting
the federal benchmark, a minimum standard is guaranteed to
prisoners but the court is prevented from creatively expanding
prisoners' rights in defiance of the intent of the Constitutional
Convention.
Number 435
SENATOR ELLIS asked what had happened to the idea that we Alaskans
don't care how other people do things. He asked if it was SENATOR
DONLEY'S belief that we spend too much money rehabilitating people.
SENATOR DONLEY replied he believes our Constitution and the intent
of the principle of reformation is good, but it is being
misinterpreted by our Supreme Court. SENATOR DONLEY suggested the
1997 case demonstrated the future danger of following the line of
logic that expands prisoners' rights.
SENATOR ELLIS mentioned that the Department of Corrections spends
quite a bit of money to make a law library available to prisoners.
He asked if this bill would affect that. SENATOR DONLEY replied
prisoners would still have access to information about the law, as
specified in the U.S. Constitution, but, unless it is determined by
the court that the library itself is a requirement of the federal
constitution, the method of access to the information might be
different if it was found to be more cost effective. SENATOR DONLEY
said it is difficult to understand the Cleary decision fully as the
court did not see fit to distinguish what was based on federal
constitutional law and what derived from our state constitution.
CHAIRMAN TAYLOR asked if there was anyone else wishing to testify
on SJR 2.
Number 505
SENATOR HALFORD moved SJR 2 from committee with individual
recommendations.
SENATOR ELLIS objected. SENATOR ELLIS spoke to his objection saying
he has supported the no-frills prison legislation but in this case
would like to see the committee wait for more guidance from the
Supreme Court. SENATOR ELLIS suggested the committee might send a
letter to the court asking them to expedite their decision. He
commented that his objection was also based on the grounds that a
constitutional amendment on subsistence is a much more pressing
concern.
CHAIRMAN TAYLOR responded by saying he believes the Supreme Court
knew the Legislature would want more than a preliminary opinion on
this issue and he is not willing to wait. Action may prompt the
court's attention to this matter, according to CHAIRMAN TAYLOR.
CHAIRMAN TAYLOR noted that if the court ruling under discussion
says anything, it says the legislature will never be able to bring
an amendment on subsistence that is narrow enough to be considered
an amendment rather than a revision. SENATOR ELLIS asked if
CHAIRMAN TAYLOR planned to work on a subsistence amendment. SENATOR
TORGERSON interjected that this was not part of the discussion and
they were working on SJR 2.
Number 550
SENATOR ELLIS remarked he was simply addressing CHAIRMAN TAYLOR'S
comments and he hoped the committee would continue to conduct
itself in the open, fair and far-ranging manner it has in the past
under CHAIRMAN TAYLOR'S leadership.
CHAIRMAN TAYLOR called for the vote on the motion.
The roll was called on the motion to move SJR 2 from committee with
individual recommendations. Voting yea were SENATOR HALFORD,
SENATOR TORGERSON, SENATOR DONLEY and CHAIRMAN TAYLOR; SENATOR
ELLIS voted nay. SJR 2 moved from committee with individual
recommendations.
SB 2-CIVIL COMMITMENT OF SEXUAL PREDATORS
MS. JULI LUCKY, staff to SENATOR HALFORD, presented SB 2 as a
mechanism to protect society from serial rapists, pedophiles and
other sexual predators who are highly likely to re-offend.
MS. LUCKY said similar legislation has been enacted in 14 states
and has been upheld by the U.S. Supreme Court.
Number 576
SENATOR ELLIS reported that he was contacted with an amendment
which clarifies that civilly committed sexual predators would not
be housed in expensive psychiatric facilities.
TAPE 99-03, SIDE B
Number 001
MR. CARL BRIMNER, Director of the Division of Mental Health and
Developmental Disabilities, remarked the department prefers the
bill with the amendment recommended by SENATOR ELLIS. MR. BRIMNER
expressed concerns about the bill. First, the department is worried
that the bill may go forward with no fiscal note. MR. BRIMNER
stated this is an expensive proposition.
SENATOR HALFORD asked where people who have been deemed guilty but
mentally ill are currently housed. MR. BRIMNER replied they are
housed at the Anchorage Psychiatric Institute (API). SENATOR
HALFORD asked how long an individual might be held at API. MR.
BRIMNER said they may be housed there for as long as they are
incompetent to stand trial.
Number 565
SENATOR HALFORD remarked that sexual predators may be better off
housed at a facility other than API since in some cases resources
are wasted on people who are unlikely to be helped.
MR. BRIMNER mentioned that there is a difference between the
population they are discussing in this bill and the population at
API. The difference is those who are at API now are biochemically
mentally ill and may be responsive to some type of treatment;
"sexual predators" are not mentally ill, but have a personality
disorder and do not respond to treatment or medication.
SENATOR DONLEY asked if people who have committed crimes are mixed
into the general population at API and MR. BRIMNER replied they are
in a separate forensic unit.
SENATOR TORGERSON inquired if four weeks is long enough for
evaluation at API. MR. BRIMNER indicated four weeks would likely be
adequate time unless some treatment was involved.
SENATOR TORGERSON asked if this might be contracted out. MR.
BRIMNER said it would go out to bid, but to his knowledge, there is
no appropriate facility in Alaska at this time. A facility would
require both secure housing and a treatment program. SENATOR
TORGERSON asked if yearly reevaluations of those committed would
really be necessary. MR. BRIMNER responded that reevaluation could
be done at longer intervals or could be contingent on progress.
Number 505
SENATOR ELLIS asked the difference between this amendment and the
language in the bill last year. MR. JERRY LUCKHAUPT, staff attorney
from Legislative Legal Services, came forward to answer that
question.
MR. LUCKHAUPT explained that the old language did not allow these
people to be housed in a state run facility and the new language
does allow it in case the state may want to operate this type of
facility in the future.
Number 474
MR. LUCKHAUPT stated under the bill, civilly committed people have
to be under the care of the Department of Health and Social
Services, not necessarily in a mental health facility, but separate
from other people who are committed for other reasons.
SENATOR DONLEY asked if it was possible to broaden this category so
other classes of perpetrators could be housed with them. MR.
LUCKHAUPT said the intent of the amendment requires housing them
apart from any other person under the jurisdiction of the
Department of Health and Social Services. MR. LUCKHAUPT also
explained that to keep the bill constitutional, these people may
not be housed in a correctional facility. SENATOR DONLEY remarked
this is a very narrow restriction that may be difficult to
administer. He did not want to preclude the combination of these
people with other "mutually dangerous criminals."
Number 415
CHAIRMAN TAYLOR considered the possibility of building a facility
adjacent to a correctional facility. CHAIRMAN TAYLOR thought this
might allow some way to deal with these people without jeopardizing
mental health programs or prison administration.
SENATOR DONLEY commented that he would like the bill to allow for
more flexibility. SENATOR HALFORD stressed that the key is this
commitment is for treatment, not punishment.
Number 383
SENATOR ELLIS moved Amendment #1. SENATOR ELLIS described there may
not be any other class of people who could be lumped together with
these people and still have the bill remain constitutional. SENATOR
DONLEY suggested they should leave it up to the mental health
experts to determine if such a population exists.
MS. CARPENETI stated the amendment came from the mental health
experts.
CHAIRMAN TAYLOR observed that we may end up building a facility for
two or three people.
MR. BRIMNER repeated that this population of sexual predators with
deviant personalities are dissimilar from other mentally ill
populations.
MS. CARPENETI emphasized that the bill specifically allows for a
separate facility on the grounds of a correctional facility so long
as it is separate and under the administration of the Department of
Social Services.
MS. JEAN STEELE, testifying from Homer, agreed with the amendment
but insisted the bill should be clarified in regard to the
definitions of mental illness versus insanity. MS. STEELE stated
personality disorders and antisocial behavior are not mental
illnesses. MS. STEELE said and her primary concern is that
offenders should be sentenced to and serve longer terms.
SENATOR HALFORD stressed that the legal definition of mental
illness is very different and much more expansive than the clinical
definition. The bill uses the legal definition.
Number 274
MR. LUCKHAUPT remarked the bill uses the definition of mental
illness used in A.S.12.47.090: "any medical condition that
increases the propensity of the defendant to be dangerous to the
public peace or safety." This definition is used in cases in which
a defendant who is found guilty is required to show he or she is
not a danger to society. This is similar to the process in which a
person might be civilly committed under this bill. MR. LUCKHAUPT
said this definition is different from "mental disease or defect"
which is the standard used for other involuntary civil commitments.
Number 230
MS. PATRICIA KOURIS, representing the National Alliance for the
Mentally Ill (NAMI) Alaska chapter, repeated the importance of
housing these sexual predators separately from potentially
vulnerable mentally ill patients like those at API.
MR. BYRON CHARLES, from Ketchikan, testified to his support of the
bill. As a victim of sexual abuse and an ex-offender, MR. CHARLES
expressed concern with the evaluation process of prisoners now
incarcerated. MR. CHARLES suggested better evaluation and treatment
of prisoners might lower the recidivism rates of sex offenders. MR.
CHARLES voiced the opinion that stricter sentences should also be
considered for offenders and repeat offenders, as any time they
receive is no match for the suffering of their victims.
Number 140
SENATOR ELLIS moved a technical amendment to Amendment #1: on page
5, line 18 delete the words "mental health" and insert the word
"treatment" and insert the word "treatment" on page 5, line 11.
Without objection, the amendment to the amendment was adopted.
CHAIRMAN TAYLOR stated the main amendment was now before the
committee. Without objection, Amendment #1 (as amended) was
adopted.
CHAIRMAN TAYLOR noted there was additional public testimony and
stated this would be taken up Wednesday @ 1:30.
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