Legislature(1997 - 1998)
01/21/1998 01:06 PM House JUD
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* first hearing in first committee of referral
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CSSJR 3(JUD) - PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS Number 0045 CHAIRMAN GREEN announced the first item of business would be CSSJR 3(JUD), proposing an amendment to the Constitution of the State of Alaska limiting the rights and protections of prisoners to those required under the Constitution of the United States. SENATOR DAVE DONLEY, sponsor of SJR 3, thanked the committee for hearing the resolution during the interim. He referred to the proposed committee substitute, version 0-LS0268\H, Cook/Luckhaupt, 10/14/97. Based on work done with the Department of Law over the interim, it adds on line 7 the words, "Notwithstanding Section 12". Section 12 of the existing state constitution is where the principles of criminal administration are set out, including the principle of reformation. Senator Donley said by this, they are "specifically highlighting that we want to limit those rights in Section 12 to those contained in the U.S. Constitution and also make it apply to other parts of the state constitution." He indicated that had been suggested by Mr. Guaneli of the Department of Law, to "make it clear that this limits other areas of the constitution that had been interpreted by the courts - as they interpret those specific sections such as due process with other sections of our constitution - to create some of the problems, specific cases that we've seen come from the Alaska Supreme Court, granting rights to prisoners in Alaska that prisoners in other states or in the federal system don't have." Number 0240 REPRESENTATIVE JEANNETTE JAMES made a motion to adopt version 0- LS0268\H, Cook/Luckhaupt, 10/14/97, as a work draft. There being no objection, it was so ordered. Number 0310 DEAN GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, came forward to testify. He acknowledged that he had worked with Senator Donley and his staff over the interim to craft language that would reflect the sponsor's intent, to deal not only with prisoners' rights under the U.S. Constitution but also those provisions under Alaska's constitution that really differ from the U.S. Constitution; that language is reflected in the proposed committee substitute. MR. GUANELI said he believes he had made the point, when dealing with Senator Donley and his staff, that this issue is not completely free from doubt in terms of the way the Alaska courts would interpret this provision. He said he believes what they have here is a provision that is intended to say that the principle of reformation under the Alaska constitution - which is unique in Alaska and doesn't exist in the federal constitution - is to be interpreted consistent with the federal constitution. Mr. Guaneli noted that a lot of federal cases say there is no right to reformation under the federal constitution. He said this provision may essentially wipe out the right to rehabilitation under the principle of reformation under the Alaska constitution. Number 0381 MR. GUANELI said it is uncertain to him exactly how the Alaska Supreme Court is going to reconcile this provision with Article I, Section 12, which contains the principle of reformation. In fact, that was reconfirmed by the voters three years ago as part of Alaska's constitution. REPRESENTATIVE BRIAN PORTER commented that it was reconfigured but reconfirmed. Number 0457 MR. GUANELI explained that it is a little uncertain whether the court is going to say that this, in effect, repeals what is in another provision of the constitution. The issue is whether this repeal by implication is something they will interpret precisely that way. While Mr. Guaneli believes the letter of intent helps, oftentimes the courts have said that when they are dealing with voter-approved issues, letters of intent - particularly by sponsors - aren't really what govern; rather, what governs is what the voters intended. Mr. Guaneli indicated they look at the ballot propositions and all the information before the voters. MR. GUANELI emphasized that he isn't completely confident that this will be interpreted in precisely the way Senator Donley or perhaps the committee intends. He said he doesn't know that there is any way to achieve that certainty, "unless you go into Article I, Section 12" and specifically repeal the principle of reformation language in the constitution. Number 0540 CHAIRMAN GREEN asked whether Mr. Guaneli had a feel for what the court's interpretation might be. MR. GUANELI said that is a good question. The Alaska Supreme Court has used the principle of reformation primarily in two different ways. The first is as guidance to the lower courts in terms of sentencing. The Chaney case, almost 30 years old, says the lower courts are supposed to consider reformation and rehabilitation in imposing sentences; if they don't, the sentence gets reversed, and it might get lowered. The second way the court has used the principle of reformation is to say that the Department of Corrections needs to make some efforts towards rehabilitation and prisoner reformation; if they don't as to a particular prisoner, that prisoner can file a lawsuit and force the department to provide that rehabilitation. MR. GUANELI asked how that might change under this. He answered that one way is with respect to the ability of prisoners to sue the state. The courts might say that maybe this means - as the federal courts have held - that the principle of reformation is not something that a prisoner can go to court and sue over, but rather it is simply a goal expressed in the constitution, something the Department of Corrections ought to strive for and the legislature ought to take some guidance for. "That is one possible way of limiting the principle of reformation," Mr. Guaneli stated. MR. GUANELI said how it would be interpreted in the sentencing context is really unclear. Statutes that the legislature has enacted take into account rehabilitation, and the supreme court might say they don't really have to decide the issue because there are statutes that govern this. They may be able to take that kind of avenue as a middle ground. Number 0715 REPRESENTATIVE JAMES said she doesn't necessarily see reformation as a right. She asked whether the words "rights and protections" are leading the meaning of this. Number 0764 MR. GUANELI replied that he thinks that is a possible interpretation, and that is sort of what he was getting at. He said the supreme court has taken that language, "principle of reformation," and turned it into not only a right but an enforceable right, something one can go to court over. Mr. Guaneli stated, "So, one possible interpretation would be [that] they look at that language and say, 'Well, maybe, you know, we aren't going to say that that is a prisoner's right.'" REPRESENTATIVE JAMES said it is not a right anymore. MR. GUANELI restated that that is possible. Number 0798 REPRESENTATIVE ETHAN BERKOWITZ asked what the practical consequences would be if this were enacted. MR. GUANELI responded that particularly in terms of what the letter of intent says, a number of decisions by the Alaska Supreme Court would be reversed. He confirmed with committee members that they had a copy of the document titled, "Letter of Intent by Senator Donley for SJR 3." Number 0840 MR. GUANELI restated that there would be a reversal of some Alaska Supreme Court opinions. He referred to McGinnis v. Stevens, a 1975 opinion listed in the letter of intent. Mr. Guaneli explained, "What it said was that under the Alaska constitution, there are some greater procedural rights that prisoners have in disciplinary hearings. For example, under the Alaska constitution, the disciplinary hearing - this is where someone misbehaves in prison and they are disciplined, ... and some of their good time can be taken away; in other words, they have to serve a longer sentence - that that hearing has to be tape-recorded. That's a right that exists under the Alaska constitution, under the McGinnis case - it doesn't exist under the federal constitution - that prisoners have a right in these hearings to confront and cross-examine witnesses. That's something that exists, the supreme court says, under the Alaska constitution and not under the federal constitution. So, some of those procedural rights would change, that exist right now." Number 0901 MR. GUANELI said as far as other opinions that have interpreted the right to rehabilitation, and enforce the right to rehabilitation, those would likely change as well. "And it would be my opinion that prisoners would not be able to sue to force the department ... to provide programs for them," he added. MR. GUANELI cautioned that having said that, as a practical matter those cases are few and far between, "and we don't lose them." While they had lost some supreme court cases that say these rights exist in an academic, theoretical sense, when it comes to actually suing the department in a particular case and proving they have not provided some adequate programming to prisoners, that is very rare. MR. GUANELI stated that in fact, he doesn't recall a case where the department has been forced to give someone treatment that the department didn't really want to give and wasn't able to give. Therefore, in terms of the practical effect it is going to have on the day-to-day operations of the department, he thinks it may have little practical effect. Number 0968 MR. GUANELI continued, "Now, having said that, I know Commissioner Pugh is worried that if the principle of reformation goes out of our constitution ... - particularly if, for example, the price of oil stays low - that there will be some pressure to cut the department's budget and cut some of the money for programs out of the department's budget, saying, 'You don't need it, it's not required by our constitution, the budget's going to be cut.' And she has a real fear that that could be a result." Mr. Guaneli said from Commissioner Pugh's standpoint, even if these programs don't make a great difference in terms of recidivism, they certainly make a difference in terms of prisoner behavior, keeping prisoners occupied so they aren't misbehaving in prison, and keeping the prisons manageable. Number 1030 REPRESENTATIVE BERKOWITZ expressed his understanding that as long as the state remains solvent, this constitutional amendment would have limited, at best, practical consequences. MR. GUANELI replied that as long as the department is adequately funded for prison programs, the existing case law that says prisoners can sue over their programming does not worry him in terms of being the state's lawyer. "It doesn't bother me; we win those cases," he commented. MR. GUANELI stated that as to the practical effect in prison disciplinary hearings, for the last 25 years the department has been tape-recording prisoner disciplinary hearings. He said it is not a big deal for them to do that, and the system has accommodated that. He said, "They might save a little time going back the other direction, but the system is working fine with that. So, I think the answer to ... your question is yes. ... As long as the system is adequately funded, it would tend to have limited practical effect, particularly ... in light of the 'no frills' prison bill that passed. I mean, that went a long way towards, you know, limiting what the department does with prisoners and stopping, if you will, the department from going too far in providing prisoner amenities. And I think that ... that probably had more of a practical effect than this would. ... This addresses a lot of legal concerns. I'm not certain what the practical effect is going to be." Number 1124 REPRESENTATIVE ERIC CROFT asked whether it is correct that to the extent the Alaska Supreme Court can interpret this, "we are asking them to read out a section of Alaska constitutional rights and simply apply the federal." MR. GUANELI replied that it doesn't necessarily say, "Read out the Alaska constitution," but it says, "Only go so far as the U.S. Constitution would go." Number 1170 REPRESENTATIVE CROFT said it seems to him that it is the same thing to say, "Apply our constitution only as far as the feds go," or simply, "Ignore our constitution, you've still got the federal constitution, you're going to have to apply those standards." He asked, "So, isn't the effect of this saying prisoners have no Alaska constitutional rights anymore, except as specifically (indisc.)?" Number 1190 MR. GUANELI replied that he believes that is certainly one possible interpretation. He noted that he had begun his testimony by expressing uncertainty as to exactly how the supreme court is going to address that issue. Number 1204 REPRESENTATIVE CROFT said he wasn't sure how they would interpret it, either, or whether they would interpret it at all. He stated, "But to the extent they give it any teeth, it has to mean - it seems to me, logically - ignore for the purposes of prisoners the Alaska constitution, apply federal rules. If you can't extend anything farther than the federal - and you brought up the point where they have no right to reformation - we're saying, 'A whole class of our citizens' - for the first time that I have ever heard of - 'you people don't have any rights under the Alaska constitution, whether it's speech ...'" REPRESENTATIVE PORTER and CHAIRMAN GREEN interjected, with the former calling this a mischaracterization and the latter suggesting it is a point of order. REPRESENTATIVE CROFT questioned whether it is a point of order. REPRESENTATIVE PORTER and CHAIRMAN GREEN both said it is. REPRESENTATIVE PORTER stated that he wishes the person saying this bill would eliminate the rights of prisoners would read the rest of Section 12 of Article I. He said it is not amending any of those things. Number 1257 REPRESENTATIVE CROFT responded that he had not heard how his comment was out of order, and he suggested it was simply a response that Representative Porter could have done in good time. REPRESENTATIVE PORTER said it was a misstatement of fact, which was out of order. REPRESENTATIVE CROFT responded, "It was not, and you can bring that opinion out ... in the ordinary course of this. I think that that's exactly what this does and was trying to get that from our legal advisor here. I think that it logically follows that when you say, 'Don't go any farther than "X," you've eliminated the other standard.'" Number 1284 CHAIRMAN GREEN suggested that saying "we are abandoning our state constitution in favor of the feds" casts an unnecessary aspersion on this and is much different from "you're only going so far as the federal requirements." Number 1299 REPRESENTATIVE CROFT responded, "With all due respect, Mr. Chairman, I think it's exactly the state, that logically it works out to be that if you say, 'Go no further than the federal,' you have eliminated any further protection of the Alaska State Constitution. I'd like the response of our testifier on that." CHAIRMAN GREEN said he would allow that. Number 1319 MR. GUANELI said he thinks Representative Croft's interpretation is one possible interpretation that could be applied. He stated, "I think ... my initial testimony was that that would be a repeal by implication; the supreme court doesn't like to do that and would try to find some middle ground under which ... they would still be able to give some meaning to what is in the Alaska constitution, but taking into consideration the limitations imposed by the federal. So -- and that's what I was struggling with. I wasn't exactly sure how that would be done, but I think that they would certainly try to do that. The supreme court has cases all the time where it tries to reconcile ... conflicting statutes, conflicting regulations, conflicting state interests. And ... it tries to steer a middle ground at times. And how precisely that's going to be done in a specific case, ... I'm really not able to say." Number 1380 REPRESENTATIVE JAMES said it seems that the result would be that the list of so-called rights that the prisoners have under the state constitution could be applied to them if that decision were made. However, prisoners wouldn't have a right to go to court and say they were not getting enough, if it was in excess of what the federal government does. She said it appears to her that it doesn't take away the right of the state to utilize any of those benefits listed in here. She asked whether that is correct. Number 1408 MR. GUANELI said he believes that is certainly a reasonable interpretation. REPRESENTATIVE JAMES suggested there is some guidance in our constitution as to what the public wants. "It's just that they don't have the opportunity to go to court if they don't think it's getting enough," she added. MR. GUANELI said he thinks that is a reasonable interpretation. He advised members that right before this hearing, he had checked through the Alaska Constitutional Convention minutes, which contains statements by some of its framers that what was intended was that the principle of reformation should really be a goal that we strive for. He suggested that some could argue that the supreme court got a little off-track when they said this goal that the framers were talking about really is an enforceable right. Number 1471 REPRESENTATIVE JAMES expressed concern about keeping prisoners busy. She asked Mr. Guaneli whether that requires a statutory change or could be done administratively, but not necessarily with "these maybe-expensive programs or other things ... that would be falling under reformation." Number 1521 MR. GUANELI answered that he believes there is sufficient discretion within the statutes right now to allow the commissioner of the Department of Corrections to adopt any number of prison programs, including work programs or study programs. He said he doesn't see the problem with discretion in the statutes, and to a large extent, the courts have also said that the commissioner of the Department of Corrections has pretty broad discretion to administer the prison system in an orderly and efficient way. MR. GUANELI referred to "Representative Berkowitz's concern about 'as long as there is adequate funding.'" Mr. Guaneli said no matter what they do, whether it is a work program, a study program or a college credit program, it costs money, and he doesn't think they can administer any of those programs without spending some state resources; he said that is Commissioner Pugh's concern right now. Number 1576 REPRESENTATIVE JAMES said she understands and agrees with that statement. However, it appears that some choices could be less expensive than others and still keep the prisoners busy, "so that if the budget is cut, they're not going to be doing nothing." She suggested it may cost the state more if there is some fracas amongst the prisoners. She stated, "When we say they don't have a right to this, that allows us more choices to fill up their time, would be my interpretation of that, ... if you would agree with that." Number 1605 MR. GUANELI said he thinks that is certainly reasonable. He suggested it might be helpful at some point to hear from somebody from the Department of Corrections who is an expert on their types of programs. He stated, "My own view is that in terms of the availability of work, for example, within the institution - cooks, janitorial, maintenance, that sort of thing - that they use the prison population to the extent they can, to the extent that they have jobs available. We hear complaints from prisoners a lot that there are not jobs available for them in the institutions. ... They can only have so many cooks, I guess, is the thing. And so, to expand that, I mean, to take people, for example, ... out of a study program and put them to work, requires that you ... create jobs for them, have correctional officers to supervise them, et cetera. ... There is going to be some trade-off. Whether it can be done more cheaply, that's possible. But I'd defer to somebody in Corrections." CHAIRMAN GREEN commented that that is a policy to run the prison and really not a restriction imposed by the federal government. MR. GUANELI concurred. Number 1657 REPRESENTATIVE NORMAN ROKEBERG asked whether one thrust of this amendment is intended to modify the Cleary settlement. He said he'd had trouble dealing with this issue for a couple of years. He asked whether the legislature, as a separate branch of government, could repeal the Cleary settlement, which was formed by two other branches of government, the executive and judiciary. He further asked, "Could not this legislature, if it had the desire to do so, introduce a bill leading to law which would completely repeal the Cleary settlement and set it aside, on the grounds of either an appropriation by the part of -- the judiciary, or, I mean, would you care to try to answer that?" Number 1701 MR. GUANELI explained that whenever there is a court judgment arising out of litigation, the court has a set of rules; one rule allows one party to get out of that court judgment for a variety of reasons. One reason would be a change in the underlying law that gave rise to that judgment. Within the Cleary settlement itself, there is a provision that says that if there has been any significant change in the law that justifies changing this order, that would be grounds for the state to go to the court and say, "We want relief from this judgment; we want out of this judgment." MR. GUANELI stated, "So, I think that the legislature could enact statutes that would give the state grounds to go to the court and say, 'Okay, the law has changed; the underlying basis on which we entered into this agreement has changed; therefore, we should be allowed out of it.' But the decision to let the state out of an agreement that it entered into a long time ago is left to the discretion of the court. And I am not in a position ... to guarantee any particular result from that. ... If the court did abrogate the judgment and let the state out of it, the other side, the plaintiff class, would be able to appeal that to the supreme court, and we'd have to have a judgment from the supreme court. So, ... I think the answer to your question is, 'Yeah, there are things that could be done that would give the state grounds to ask the court to do that.' But to guarantee the result, I'm not in a position to guarantee anything." Number 1785 CHAIRMAN GREEN asked whether there would be any analogy to the state's entering into a contractual agreement with an oil producer, on a royalty basis established by the Department of Natural Resources and approved by the Governor, with the legislature coming back and saying that things have changed and the cash flow is down. Chairman Green said it seems that to "unilaterally change something to a nonparty would be a real difficult case." Number 1810 MR. GUANELI replied, "Mr. Chairman, I think there is an analogy, and I would submit that it's probably even more difficult in the situation where you have another branch of government, the judicial branch, having a dispute being submitted to it, having gone to judgment on this dispute, and having a set of rules under which ... it can be changed, to actually change that between two branches of [government]. I think that the situation you suggested was where the executive branch ... was negotiating directly with ... a producer. And changing that might even be easier than changing a judicial judgment." Number 1834 REPRESENTATIVE ROKEBERG said the analogy doesn't hold up, because they are talking about the relationships between two separate branches of government here, which was what he was driving at. CHAIRMAN GREEN commented, "So would this be, but ..." REPRESENTATIVE ROKEBERG responded, "You're talking about outside, third party. But nevertheless, the point here is that I would hope that the legislature has at least an ability to deal with the judicial branch of government, more so than just removing their appropriation for janitorial services in the court buildings. ... We have the power of the purse strings, but I'm concerned about how we can properly deal with that, and that's been one of the issues with the Cleary settlement (indisc.--coughing), in my opinion, is that relationship, which I feel is, in essence, an appropriation by the judiciary, which I think is unconstitutional, you know. And that's my own personal opinion." Number 1885 REPRESENTATIVE JAMES said it seems that court decisions have been overturned because of change in the law. Particularly if it was a change in the constitution, the real basis for all of our statutory law, it seems that if there was a case, it would, then, fall under some of those things in the Cleary settlement which indicate it could be changed. She said, "I understand - and see if I'm correct on this, then - we know that we're subject to the law of the court - that it seems to me like that would be a better reason than any other reason we have currently." Number 1926 MR. GUANELI said he thinks in general that is a true statement. In Cleary, however, although the prisoners had alleged violation of the constitution, because it ended up in a settlement, the state never conceded that there were constitutional violations, and those were never fully adjudicated. The Cleary settlement itself is based on negotiation, give-and-take over various points under contention. "But there never was a decision that we were in violation of the constitution," Mr. Guaneli explained. "So, the argument on the other side is, 'Well, you never conceded that you were in violation of the constitution; so, changing the constitution really doesn't change the ground rules, because, you know, you never were in violation.' If we had been in violation of the constitution and then the constitution were changed ..." [Note: The tape flipped early. Therefore, there is some blank tape at the end of Side A and the beginning of Side B, but very little testimony is missing. The numbers listed for Side B begin at the point the tape flipped.] TAPE 98-1, SIDE B Number 0001 MR. GUANELI continued, "... no longer was in violation, then I think you make a very good point. Then that gives us, I think, much stronger grounds to go to the court. In this case, just because of the way it worked out, we never had to concede that. I mean, we certainly didn't want to concede that we were in violation of the constitution. (Indisc.--coughing) the court greater powers ... over the state in what it can do." Number 0019 REPRESENTATIVE CROFT questioned how the courts would try to give meaning to the state constitution in some sort of "medium" way with this limitation. He said it seems that it is either allowed by the federal constitution or not. He asked, "What would be the appropriate middle ground under this amendment?" Number 0041 MR. GUANELI replied that the only one he could think of quickly was to say this would be a statement of goals and principles for the state to operate its prison system, rather than an enforceable right. There are, for example, federal decisions that apply the Eighth Amendment, the cruel and unusual punishment clause, to people who have serious physical illnesses and physical disabilities, basically saying the state has to make efforts to make those people better. Mr. Guaneli suggested that is the same analogy the Alaska Supreme Court used in an early case, almost 20 years ago, to say the state has an obligation to try to rehabilitate people. MR. GUANELI explained, "In other words, ... before the Alaska Supreme Court relied on the principle of reformation to say, 'You've got a right and you can sue over it,' they first said, 'Well, we're going to look to the federal law; the federal law talks about, "You've got to treat prisoners with a certain level of care, and that means that you've got to provide them some means of rehabilitating them, and particularly when they've got a serious condition that would affect their rehabilitation."'" Mr. Guaneli said that therefore, the first inroads that the Alaska Supreme Court started making on the right to rehabilitation really were based on federal law dealing with the cruel and unusual punishment clause. So there is a bit of an intertie between cruel and unusual punishment and reformation and rehabilitation. "It's not a real strong one, but there is something there," he added. MR. GUANELI said he could see the court, then, being able to use the Eighth Amendment under the federal constitution as a way of still giving some meaning to reformation and rehabilitation. He commented, "You'd almost have to read the case that I'm referring to, to see ... how they use that federal law." He then said, "I guess what I'm saying is they would try to make some sense out of what seems to be a repeal by implication. They aren't going to want to repeal the principle of reformation. They're going to want to give it some meaning, and they're going to search for ways to do that." Number 0152 REPRESENTATIVE CROFT referred to the word "notwithstanding." He asked, "Does this mean ... we can go our own Alaska path on Section 12, but other rights have to be limited to federal, or that this has to be limited to the federal, Section 12 as well? Are we specifying Section 12, to exclude it from the general 'look to the feds,' or to include it ... as a limitation?" MR. GUANELI replied that he believes the language is there "to include it." He said, "In other words, look to the feds to all rights involving prisoners, including Article I, Section 12." REPRESENTATIVE CROFT said, "Everything." MR. GUANELI concurred. "And if the sponsor disagrees with that, I'll defer to him," he added. SENATOR DONLEY responded, "It was your suggested language, to make it clear that included everything." CHAIRMAN GREEN asked whether there were further questions of Mr. Guaneli, then noted that there were no other testifiers signed up. Number 0196 SENATOR DONLEY said that philosophically while this amendment says some of these special privileges are no longer rights for individual prisoners, this amendment would not prevent the legislature, or even the department, through its regulatory process, from making a decision about something they wish to continue to do. For example, if the department wanted to continue to tape-record hearings, this doesn't prevent that; it just keeps prisoners from suing to say they have a right to a tape-recorded hearing. No longer could prisoners compel the state to do those kinds of extra things not required by the federal constitution. Number 0244 SENATOR DONLEY said one thing that happened this summer was articulated in the letter of intent but not given as an example in Mr. Guaneli's testimony. The Department of Law had lost the Brandon case. Senator Donley indicated the court has now ventured into the area of which specific facility a prisoner may be put in, and whether the prisoner has a right to somehow argue under the principle of reformation that he is entitled to have a say as to what facility he is in. Senator Donley stated, "And while the Brandon case didn't go all the way there and say that they can actually specify where they want to be, ... under the theory that somehow if they're closer to some particular site, they may have a better opportunity for reformation, it's clear to me that we've begun down that slippery slope." SENATOR DONLEY continued, "And a lot of what this constitutional amendment is intended to do is not necessarily where we're at, at this moment in time, but what could happen in the future. And that's one of the reasons in the letter of intent we specifically refer to the rights of victims, because as it is now, since the court has gone beyond - as Mr. Guaneli pointed out - what the constitutional convention's intention was, and changed it from a principle to a right, they may be balancing that right against the rights of victims that were contained in the constitutional amendment for victims' rights. ... I think we should stop that from happening and make it clear that this is a principle of reformation, and that beyond what's required by the U.S. Constitution they shouldn't be able to assert specific rights as prisoners that would offset the new rights that we've given to victims in the constitution." SENATOR DONLEY said it is looking to the future, as well as dealing with these relatively minor cases, so far, that have happened, which he characterized as the tip of the iceberg. Number 0352 SENATOR DONLEY referred to the middle ground. He said one thing the court has adopted - interpreting constitutional amendments, as opposed to existing sections of the constitution - was in the Ostrosky case in 1983, where they said that areas of the constitution cannot be challenged as unconstitutional under the pre-existing clauses in the same document. SENATOR DONLEY explained, "That was when we specifically authorized limited entry. We had the general clause in the constitution that was a equal right to resources. They had a limited entry system, specifically adopted by a constitutional amendment. What the court said is, 'Well, these things are conflicting, but the limited entry authorization is specific,' just as the language in this proposal is specific. ... There's no rights beyond what the federal government would give, beyond what the U.S. Constitution would give. That's very specific. So, as they interpret it, one thing we can be sure, given this constitutional rule of interpretation, is they're gonna not give rights beyond what the federal government gives, based on our state constitution." SENATOR DONLEY concluded by saying he believes it is appropriate that there is still the principle of reformation "as we go about the business generally," but it is no longer a right. Number 0417 REPRESENTATIVE BERKOWITZ responded that it seemed Senator Donley was using the Brandon decision as a lynchpin for what he was attempting to do; Representative Berkowitz disagreed with Senator Donley's interpretation of that decision. He explained, "As far as I understand, Brandon is currently being incarcerated in Arizona. And his appeal, as far as I understand it, solely went to the issue of whether he had a due process right to challenge his classification, ... to the extent that the classification affects reformation. And that was not expressly to do with visitation." Number 0442 SENATOR DONLEY responded, "Mr. Chairman, I think I qualified my remarks when I said that, that I didn't think they went all the way in the Brandon case? But if you read the Brandon case closely, I think it sets us up for that as the next decision based on the right of reformation." Number 0460 REPRESENTATIVE BERKOWITZ pointed out that the dissent written by "that noted conservative, Justice Rabinowitz," stated that there is no right to visitation. "And that's going to be the direction they'll go," Representative Berkowitz added. SENATOR DONLEY replied, "The fact that Justice Rabinowitz was so worried about this decision that he wrote a dissent indicated to me that he was very concerned that that's where the court was going and wanted to try to direct them away from that. And this was one of the reasons he wrote that dissent." REPRESENTATIVE BERKOWITZ commented, "I appreciate your liberal interpretation." Number 0488 REPRESENTATIVE ROKEBERG expressed concern about the repealing of Cleary and Senator Donley's statement in the letter of intent that this is intended to modify it. He asked whether the legislature has ever endeavored to repeal the settlement in Cleary legislatively. He added, "And what do we run into there?" Number 0530 SENATOR DONLEY specified that the letter of intent says this intends not to modify Cleary but to authorize the state to request the court to modify Cleary. That is an important distinction, "because in Cleary, about three times, it says in it the state can't do, can't modify, can't modify, can't modify, until you get to the section Mr. Guaneli mentioned that said, 'Well, if there is some significant change in the law.'" Senator Donley stated, "I haven't found a way to inspire a significant change in the law that would directly impact the Cleary stuff yet, the things in Cleary, other than through this proposal, which is one of the reasons I came forward with this proposal. It's not a direct modification of Cleary, but it gets us to the point where if the state was of the will to, I think we could make a case to the court that it's appropriate for us to ask for modification. It's still going to be up to the court to do it or not, right?" SENATOR DONLEY continued, "The second part of your question - have we ever tried this before? - in a way we did. About six years ago, Representative Barnes ... sponsored a resolution, which passed both bodies, calling on the administration to seek modification of Cleary. And the administration chose not to act on that, ... for whatever reason." Number 0598 REPRESENTATIVE ROKEBERG responded, "Well, but therefore, to your recollection, we have not specifically passed a bill ... into law which has been consented to by the Governor which specifically directs a repeal of all or a portion of the settlement. Is that correct?" SENATOR DONLEY replied, "That's true. Basically, every time we've talked about those things, we've been told that we can't do it. And one of the reasons we can't do it is also addressed by this amendment. And that's because Cleary is not just based on state law, or just based on U.S. constitutional law. It's based on a 'morphing' of the two; ... you squish them together in a way that it's unclear what part of Cleary is required by what. And that's real common by courts. When they don't have to make a specific ruling saying, 'We're doing this because of the state constitution,' and they're not forced to say, 'We're doing this because of the federal constitution.' They'll just generally (indisc.) this catch-all phrase, 'We're doing this under the federal and state constitution,' but they don't specify which. And Cleary has that kind of effect. It's just there and combined. And if you try to go in and try to break out the elements, it's very difficult to do individually." SENATOR DONLEY said one advantage of SJR 3 is that for the first time, there is a single standard, the U.S. constitutional standard. He stated, "And you'd be able to revisit Cleary under that single standard ... - with 200 years of interpretation, judicial interpretation, on the books, by the way - rather than this 'meshed-up' dual constitutional standard, which is under, you know, virtually a brand-new constitution, the Alaska constitution, and its unique provisions, that there's not a whole lot of guidance back through time of what those mean. So, that's ... another advantage of SJR 3: You can look at Cleary in a much clearer way, of what's actually required under [the] constitution, rather than the current handicap we have of not knowing what parts of Cleary may be required by state -- interpretation of the state constitution, what (indisc.) parts may be required under federal." Number 0712 REPRESENTATIVE ROKEBERG said it was unclear to him. He mentioned an issue discussed by Representative James and himself before the House Finance Standing Committee the previous day. He said he believes this legislature as a branch of government needs to assert its rights, and he doesn't know whether they have done that. He expressed concern about having to rely on a constitutional amendment to try to do that, and he restated concern about "not having asserted our rights specifically to repeal all or a portion of that settlement, if we felt, as a legislature, that that was incorrect." REPRESENTATIVE ROKEBERG said that when this goes before the public, there may be a problem. The real trap is that this language won't necessarily appear on the ballot. Statutorily, the Lieutenant Governor is charged with drafting the language that appears on the ballot. If it isn't crystal clear to the public, there may be a problem getting the requisite number of people approving this amendment in the election. Number 0859 REPRESENTATIVE ROKEBERG explained that the Lieutenant Governor can redraft the ballot proposition, without taking the language right out of whatever is passed by the legislature. He said, "The legislature or an individual has a right of a cause of action against that. This is from a statute that this body was wise enough to pass in 1980. But, I mean, you've got a problem here, and this is what brings it to light. You know, what does this say?" Number 0885 SENATOR DONLEY said he believes the Senate version is the cleanest version, and they had worked with the Department of Law because the department had expressed this concern. The Senate version "says the rights and protections, the extent of those rights and protections afforded by this constitution to prisoners convicted of crimes shall be limited to those rights and protections and extension of those rights and protections afforded under the United States Constitution." On the other hand, he said, the proposed committee substitute "is because other people said, 'Well, maybe the court would read that to not include Section 12.'" Senator Donley concluded, "Well, I don't know how. I mean, it's real straightforward to me. I like the Senate version, but I was trying to make other people happy." SENATOR DONLEY indicated the bottom line is that the legislature can say "black" but the supreme court may say "white," no matter how clear the legislature seems to make it. How the ballot description is written will be important. And while the Lieutenant Governor gets to write something, typically the people who have worked on it get to write something, too. If that is as clear as the letter of intent, which Senator Donley would work hard to ensure, he said it will be really hard for the court to say it is something different. Number 0984 REPRESENTATIVE CON BUNDE acknowledged his question may be best directed towards the Department of Corrections. He then said to Senator Donley, "There's been some focus on this that if Alaska prisoners are limited to the Alaska constitution that this might eliminate an opportunity for reformation. I mean, I share the concern that it might have been a goal and it was changed to a right. But certainly in federal prisons they use the principle, the opportunity, the concept of reformation, do they not, under the U.S. Constitution? So, if Alaska prisoners were limited to the rights of the U.S. Constitution, the state could still be involved in the concept or principle of reformation, and would not be limited by anything from the U.S. Constitution?" Number 1056 SENATOR DONLEY replied that first, the state is not limited at all and can do even more reformation than before, if it wanted to as a policy decision, "even with this existing amendment." It is just not compelled to do it, as a right of prisoners. Senator Donley stated, "I do think Mr. Guaneli took you down the path where there is some United States Constitution intent with prisoners, in a kind of a back-door way, to get at some reformation concerns, and those would still exist, obviously, under the federal constitutional standard." SENATOR DONLEY commented that he knows of nothing in our constitution that says school children have the right to a library in their schools. For example, his own elementary school in Spenard had had no library. It is a policy decision, not a right. While in budget priorities he would favor giving school children a library over doing reformation for prisoners, that doesn't mean he is against reformation programs. However, he said, he doesn't see why prisoners should have these rights to rehabilitation when law- abiding citizens don't necessarily have those kinds of specific, articulated rights. He said sometimes in talking of rights and policy decisions, they get jumbled up. Just because something is not a right doesn't mean it won't be continued, but it must be balanced against the big picture. Number 1178 REPRESENTATIVE BERKOWITZ asked, "If you think these rights should be extended to the public at large, why didn't you propose a constitutional amendment (indisc.--simult. speech)?" CHAIRMAN GREEN indicated he didn't think that was necessarily germane to this. Number 1208 SENATOR DONLEY emphasized that this was approved by the Senate, to address a specific, potentially growing problem. There is a single-subject rule, and other problems can be dealt with in other legislation. Number 1254 REPRESENTATIVE PORTER said he thinks the questions and discussion have brought out a lot of positive information about why this is a good bill. He said he agrees with the sponsor that the legislation is meant to be "a fence, not a punishment," and he agrees with the analysis that the supreme court, given its head, will run. He said notwithstanding a constitutional amendment for victims' rights, this could still go forward without some parameters being put on. He said he believes it is a "should we or should we not cap benefits" discussion, that the supreme court has seen fit to provide unlimited benefits to prisoners "and we're capping them." He said he thinks that is reasonable. Number 1339 REPRESENTATIVE PORTER continued, "It has been characterized that this bill is tantamount to abolishing prisoner rights within the Constitution of the State of Alaska. Nothing could be further from the truth. Our constitution, like the federal constitution, even expanding in individual rights of the federal constitution, has a plethora of rights that accrue to everyone, including prisoners, some specifically to prisoners. If that analogy were correct, then we wouldn't have the state criminal courts. We would have to file everything in U.S. District Court, because there wouldn't be any rights for prisoners under the state. Obviously, that's not the case. Any challenge for the rights of prisoners would proceed through the state court under the guarantees provided by the state constitution, with this amendment in place. And yes, we could look to a cap on some of these things by saying, 'If they want to go to far with their allegations of rights, what is the cap?' Well, the cap is what exists at the federal level, and that's the only function (indisc.). With that in mind, I can't hesitate but to say that Justice Rabinowitz' minority opinion shows that with age comes wisdom, and perhaps that will apply universally." Number 1438 REPRESENTATIVE JAMES said she remembered what happened several years ago, when "we changed Section 12, when reformation was the ... first on the list." Some of the conversation then was about an intent to put all these other issues protecting the public - community condemnation of the offender, the rights of victims of crimes and restitution from the offender - ahead of reformation. She said she doesn't see why they are just arguing about reformation here. She stated that she really supports this issue and agrees with everything Representative Porter said. Number 1492 REPRESENTATIVE CROFT disagreed with Representative Porter's assertion that the court had provided unlimited benefits; he said that is clearly wrong. It had limits that Representative Porter disagreed with, but the very case that was discussed shows there were limits. Representative Croft also disagreed with Representative Porter's second statement, that this doesn't abolish state constitutional rights. He said that is what it is intended to do, and that is the very thing it does, that to the extent Alaska's rights go further than the federal constitution, they should be ignored. Number 1578 REPRESENTATIVE CROFT stated that this is the first time he has seen that "we're taking a class of citizens - admittedly, a despised class of citizens - and saying, 'The rights that we all enjoy, you don't.'" He said, "And I wonder where we go next, on a class of citizens we don't like, to say, 'Our Alaska panoply - freedom of speech, privacy, religious freedoms that extend beyond the federal limits - not for you.'" REPRESENTATIVE CROFT continued, "I don't know that we can do this under the federal constitution. I don't know that federally they can say, 'Hey, do what you want to; abolish your constitutional rights for everybody, limit 'em for everybody or don't.' But to say, 'Here's a group of people to whom Alaska's constitution cannot apply, you must only go as far as the federal,' I think we have serious problems doing. Even if we can do it legally, I think it sets a horrible precedent. As badly as we feel about this group of people, as much as we may dislike this group of people, they've got either the same constitutional protections as we do, or I'm worried we're going to start not to have them. It does say, 'Look no further than the federal government. If it ain't in the federal constitution, you can't use it.'" REPRESENTATIVE CROFT agreed with Senator Donley that the wording in the Senate version is probably cleaner; it clearly says that "the rights and protections afforded by this constitution shall be limited." Representative Croft stated, "I don't know where you find in that a middle ground. I don't know where you find in that a principle, a purpose, anything enforceable. It says, 'Stop right there.' And when you stop right there, you might as well say the statement, 'For prisoners, the Alaska constitution does not apply.' It cannot apply, according to this amendment. It shall be limited. Look not ... to the state constitution, look to the federal. And where we go from here, I don't know. But I will not take a class of citizens, no matter how badly they've messed up their lives, and say, 'The Alaska constitution that I enjoy doesn't apply to you.'" Number 1729 REPRESENTATIVE CROFT said, "Clearly, the Alaska constitutional provisions don't apply equally to prisoners. That is, you can say, 'You still have a right of free speech. You even still have a right of free speech under the Alaska constitution. But that doesn't mean we can't read your mail. ... You're in a prison. You have a right of privacy. I do, and the prisoners do right now. But it ain't the same. Bubba's still gonna sleep in your cell. But it's still there. ... It is conditioned on the circumstances. It is reasonable under the circumstances, but it's still an Alaska one, and it's still a right of privacy, speech, religion.'" REPRESENTATIVE CROFT restated that for the first time he'd heard of, these constitutional provisions would not apply to a class of our citizens. "And I can't support that," he concluded. Number 1817 REPRESENTATIVE BERKOWITZ noted that this is a constitutional amendment. He read from Article I, Section 1, which begins, "This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law ...." He said this resolution does exactly what Representative Croft stated: It classifies a group of people differently under the state constitution. REPRESENTATIVE BERKOWITZ explained that it troubles him because they have taken this debate and made it a test of how much they detest prisoners, rather than how much they respect the constitution. He stated, "And as soon as we concede the protections afforded under the Alaska constitution to the federal government - which is exactly what we're doing here - then we have entered on a slippery slope. And that makes me very fearful. So, I'm going to stand with Representative Croft; I'm going to stand against this. I think it sets an incredibly dangerous precedent, and I'm worried about the course of future debate." TAPE 98-2, SIDE A Number 0001 REPRESENTATIVE ROKEBERG asked, "Have you also considered, in your deliberations about that, drafting an amendment to repeal Cleary?" SENATOR DONLEY replied, "Yes, I've considered how to deal with Cleary for about ten years now; I think Cleary's been around at least that long. ... And every time I went, I came back to this problem of the merged constitutional guidelines. And without separating them, it was -- I didn't find a way we could get at the Cleary issues one by one, some of the specific requirements in Cleary, until we could clearly identify what's required where. And as long as they're required under the federal constitution, there's nothing you can do about it; you're stuck with it. The only options you have [are] those things the court might have interpreted were required under the state nuances of this language. And to identify those, first of all, you've got to set a single standard or force the court to do that, and the court's not going to do that without something like this to base it on." SENATOR DONLEY pointed out that in 1988, voters adopted the "Alaska hire" constitutional amendment, which established the state constitutional standard in residency preference questions as being what is required by the federal constitution, not the state constitution. He commented, "So, we have done a similar thing in our state constitution previously. And I think it got like 88 percent of the vote, or something like that, from the public, to adopt the federal standard, because our state standard was preventing us from giving preferences to our own citizens. The supreme court was striking down attempts we were making to give reasonable, legitimate preferences in any other state for our own citizens because of the uniqueness of our state constitution. And so, the voters went ahead and said, 'For this specific issue, we're going to adopt the federal standard.' So, this is not completely unheard-of." REPRESENTATIVE BERKOWITZ commented, "For all Alaskans." Number 0230 REPRESENTATIVE ROKEBERG thanked Senator Donley for working on this issue, which he said has concerned him for a number of years. He suggested this is a prime example of the judiciary's going beyond what the legislative branch believes the judicial branch has the ability to do. He stated his belief that it is appropriate for the legislature to take these issues up as they come about and to pass laws - even if they must go so far as to amend the constitution - to set things right, because that is their responsibility as policymakers in the state. He asked, "But isn't it true, ... Senator Donley, that the court has enumerated these rights, and not the constitution, and not the legislature and the people of the state of Alaska? And that's what we're trying to correct?" Number 0319 SENATOR DONLEY replied, "As the attorney general pointed out, the court has gone this direction, that these are now rights and not a principle of reformation. So, it's something the court has developed over time." Senator Donley referred to the question of whether they can constitutionally discriminate against certain classes of people. He said he thinks the answer to that is clearly yes; it is very clear under federal constitutional law that convicted prisoners simply aren't entitled. For example, prisoners, unlike ordinary people, are locked up. There are special rules for them, including restraining them and controlling their activities. SENATOR DONLEY pointed out another example in statutory law, limitations on gambling, for which he said there are no federal protections, whereas states have great leeway in regulating gambling activities. He concluded that there are "certain things and classes and subject matters" under federal law where there is more deference in how they are dealt with, for logical, good reasons that are justified in society. Number 0424 REPRESENTATIVE BUNDE offered his opinion that the public has a certain expectation that the punishment portion of incarceration will take precedence over rehabilitation. He recalled his grandfather's notion that punishment is, in many cases, rather rehabilitative. "So, I don't think we're piling on," he said. He commented on the fervor he has heard in arguments for ensuring that Alaskans have equal protection under the constitution. Number 0535 REPRESENTATIVE JAMES emphasized that she feels comfortable with the rights given to her under the federal constitution, although there are things in the Alaska constitution that she is probably happy to have, too. She said we do discriminate in the way we treat different people for different reasons, and the courts will uphold it as long as it is in the state's best interest; she cited gun laws as one example. Noting that this limits prisoners' rights to those under the U.S. Constitution, she said she sees no problem with that, she feels comfortable with it, and in her opinion, any argument with that is only meant to be emotional and not reasonable. Number 0666 REPRESENTATIVE CROFT offered Amendment 1, 0-LS0268\H.2, Luckhaupt, 1/21/98. (A second written amendment, H.1, was not offered.) Amendment 1 read: Page 1, lines 1 - 3: Delete all material. Insert "Proposing an amendment to the Constitution of the State of Alaska providing that a certain class of persons have no enforceable rights under the Constitution of the State of Alaska." Page 1, lines 7 - 12: Delete all material and insert: "Section 25. Prisoners. Prisoners convicted of crimes shall have no enforceable rights under this constitution." Number 0694 REPRESENTATIVE PORTER objected. REPRESENTATIVE JAMES questioned whether they could change the title in a Senate bill. REPRESENTATIVE CROFT indicated a concurrent resolution could be put along with it. He explained Amendment 1, saying it seems that logically this does what the amendment does, but in plainer language, responding to Representative Rokeberg's concern. He said, "You don't have any ... Alaska constitutional enforceable rights; you retain - we couldn't do anything about it - all your federal constitutional rights. To the extent they have 'em and we don't, you've got 'em. To the extent we have 'em and they don't, you don't. And that's what the 'shall be limited to' language means in the original. I just think it gives people a clearer idea ... of what we're doing here, and possibly give people some pause." Number 0772 REPRESENTATIVE PORTER said this is precisely the discussion they had previously. He opposed the amendment, incorporating his previous comments and offering them "as an indication that this, in my opinion, is totally incorrect, that all of the rights that would exist under the state constitution, save those few that exceed the federal-constitution-provided rights, are still in effect in full force, and would be judged by our courts." Number 0810 REPRESENTATIVE BERKOWITZ said this is a clear statement of what they are doing, putting a roof on the rights of a group of Alaskans. He stated, "We have said that Alaskans who are incarcerated, who already have rights taken away -- no one has disputed that, no one has challenged that. In fact, we've gone to great pains to point out that it's appropriate. But when their rights are somehow considered a smaller bundle of rights than other Alaskans', we've taken a step backwards from the idea of what a state constitution should do, and that should ... represent all people in the state. This amendment just clear state that there is no Alaska constitution applicable to prisoners. I think that's the intent." Number 0930 REPRESENTATIVE ROKEBERG said this is a "vexious" amendment. CHAIRMAN GREEN asked whether there was further discussion, then requested a roll call vote. Voting for Amendment 1 were Representatives Berkowitz and Croft. Voting against it were Representatives Bunde, James, Porter, Rokeberg and Green. Therefore, Amendment 1 failed by a vote of 5-2. Number 0989 REPRESENTATIVE PORTER recounted how an instructor for a constitutional law course had said discrimination is not illegal, but illegal discrimination is illegal. Representative Porter then stated, "It's been mentioned that this bill is so obnoxious that it says that Alaskans would detest a certain class of people. Now, does the U.S. Constitution and the U.S. court system have a reputation for detesting prisoners? I don't think so. We're certainly not diminishing anything that exists there, nor could we if we wanted to. So, I don't think it would be an appropriate characterization to say we detest prisoners. But I think it's appropriate to say, 'Should our constitution, within the protections of the U.S. Constitution, discriminate against persons convicted of criminal offenses while they're under the jurisdiction of the court?' I have no problem saying yes to that, and I have no problem supporting this bill." Number 1051 REPRESENTATIVE BERKOWITZ responded, "There is no question that prisoners are rightfully discriminated against. We take away their liberty. We withhold them from all the freedoms that law-abiding citizens enjoy. That's not the question presented by this bill. The question is: Even within those restrictions, should they be afforded an Alaskan view of the world, an Alaskan (indisc.) of rights? And what this bill says is no, they are different. But we've already acknowledged they're different by virtue of being prisoners, but we say they're not even going to count as Alaskans. I don't think that's a step forward." REPRESENTATIVE BERKOWITZ pointed out that this proposes a change to the constitution. He said there are less drastic means possible to effect the same ends that the Senator intends, such as the "no frills" prison bill that committee members had passed out, which restricted some of the freedoms that many here found so troubling. He referred to concerns about Cleary and said he believed Representative Rokeberg pointed out there are other ways of addressing the Cleary settlement, rather than proposing a constitutional amendment. He suggested they don't want to "Christmas tree" the constitution with every possible concern that everyone has, if there is a less-drastic means possible. Number 1149 REPRESENTATIVE JAMES made a motion to move the proposed committee substitute, version 0-LS0268\H, Cook/Luckhaupt, 10/14/97, out of committee with the attached fiscal note and individual recommendations. REPRESENTATIVE BERKOWITZ objected. CHAIRMAN GREEN requested a roll call vote. Voting to move the resolution from committee were Representatives Bunde, James, Porter Rokeberg and Green. Voting against it were Representatives Berkowitz and Croft. Therefore, HCS CSSJR 3(JUD) moved from the House Judiciary Standing Committee by a vote of 5-2.
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