02/05/1997 01:38 PM Senate JUD

       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
 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.