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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= bill was previously heard/scheduled
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.
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