Legislature(1999 - 2000)
02/18/1999 08:58 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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. Senator Dave Donley, the sponsor, testified. He said that this proposed constitutional amendment was a "return engagement" of the issue of prisoner's rights in the State Of Alaska. Specifically, it was a narrower focus of the proposal the Legislature attempted to put on the ballot to amend the state constitution last year. Both versions attempted to limit the rights of convicted prisoners in Alaska to more than the rights they are afforded under the U.S. Constitution. This version narrowed the focus to only apply to those rights contained in Section 12 and not rights contained anywhere else in the state constitution. The narrower focus of this year was an attempt to address the court's criteria set out in its decision that the proposal last year was too broad to be considered an amendment but was instead a revision. Revisions could only be done at a constitutional convention. He spoke of specific questions this proposal would face even with the narrower focus. They had to do with the prior rulings of the Alaska Supreme Court relating to the "principle of reformation" defined as an individual enforceable right of convicted prisoners. Senator Dave Donley argued it was clear that was not the intent of the constitutional convention as shown in the records of their debate. The debate at the convention specifically addressed the "principle of reformation" language and he believed that it was a guideline principal for running prisons. It was never intended to be individual rights for individual prisoners. However, in the 1970s and 1980s, the Alaska Supreme Court decided it meant something different and that it gave special individual rights to Alaskan prisoners that are not seen anywhere in the country. Those rights included the individual right to force access to rehabilitation programs, he continued. In 1997 the court ruled in the Brandon case that there must be substantial deference to the inmate's desire of where they were incarcerated. Although this hadn't caused an immediate problem, the Rabinowitz dissent in that case pointed out that this was going to be a tremendous problem in the future. It also said the court had essentially given the prisoners the right to say where they go for their incarceration. Senator Dave Donley pointed out that 49 other states as well as the federal courts had universally rejected that right and Alaska is the only state where our court has ruled that prisoners have some say as to what prison they go to. Adoption of this constitutional amendment gave Senator Dave Donley hope that it would allow the state to revisit the Cleary consent decree. He reminded the committee that this was a settlement between the State Of Alaska and prisoners in a class action suit saying that prisoners needed better facilities and more opportunities while they were in prison. This case claimed to be based on the state and federal constitutional law. You could assume that those things that weren't required by the federal constitution were conceded by the state as required in the state constitution. However, the Attorney General's Office said it was not clear which items were required by the state constitution and they responded that it was not clear, but required. Senator Dave Donley told the committee that the provisions agreed upon by the state in the Cleary settlement dictated that the state could never reopen the case. Just two years ago, the US Supreme Court on an appeal from another state that had its hands tied in dealing with its prisons because of a similar settlement, announced that states had the power to renegotiate these settlements. Especially if there was an underlying change in the circumstances, he said. "What could be a more underlying change in the circumstances in the Cleary settlement, which past attorney generals said it was based on constitutional law, then this change of the portion of the constitution that was the premise of the original settlement. Many restrictions in the Cleary settlement are unique to Alaska. The most troublesome for future prison construction, is the provision that cells can no longer contain more than two inmates. In the private Arizona prison we contract with, they have the ability to house up to 16 inmates in each cell. The administration at that facility says that it is actually a benefit because some prisoners do better and have a faster rehabilitation in a more social environment. Under Cleary, the state negotiated away the ability to do the most efficient and effective type of inmate housing, according to Senator Dave Donley. He explained that this was an example of a restriction based on an unknown, unidentified state constitutional right that stemmed from the "principle of reformation" that the court had misinterpreted from the original meaning of the state constitution. He continued saying that as the state continues to go down this "slippery slope" year after year, we could see the court continue to misinterpret the state constitution further. He emphasized his belief that reformation was a good thing. He felt prisoners did better with an education. However, he felt it should be because society wants the rehabilitation, not a tool for prisoners to use to abuse the process. Senator Dave Donley quoted a statewide Dittman Research poll that showed 76-percent of Alaskans supported last year's Ballot Measure #1 in its original proposal. This current proposal was not as encompassing as Ballot Measure affected. He said the reason for the changes was because of the state Supreme Court's preliminary decision, it pointed out one of the reasons for refusal to place the proposal on the ballot was because it impacted multiple articles or sections of the constitution. He complained that the court never produced a final decision on the ruling. He suggested they would have a difficult problem justifying their decision. "They are way out on a limb and they know it" he declared. Senator Dave Donley recounted testimony given by the public defender in the Senate Judiciary on this proposed constitutional amendment. The public defender testified that violent sexual predators could not be committed because Alaska did not have a facility where they could be incarcerated and is close to their families. Senator Dave Donley used this as another example of the fallout from the Cleary settlement. He warned that the next year it would be something else, and that was the reason the matter should go before the voters. He then spoke to a committee substitute he had drafted after the discussion in the Senate Judiciary Committee. This would focus the constitutional amendment proposal even further to only apply to the portion of Article 1 Section 12 that deals with the "principle of reformation." Senator Dave Donley then moved for adoption of the CS for SJR 2. Co-Chair John Torgerson objected for discussion purposes. Senator Al Adams asked for an explanation of the differences between the bill and the proposed CS. Senator Dave Donley explained that the original proposed constitutional amendment modified all of Article 1 Section 12 by saying that the rights contained in such for convicted prisoners could not exceed those in the United States Constitution. The CS would not modify the excessive bail and excessive fines provision contained in the article. Co-Chair John Torgerson asked if the CS would still affect the Cleary Act. Senator Dave Donley thought so because the problems in the Cleary settlement logically stemmed from the court's misinterpretation of the "principle of reformation." Senator Al Adams announced that he would not object to the CS. Co-Chair John Torgerson removed his objection. The committee adopted CS SJR 2 (FIN) without objection. Senator Al Adams noted that some of the questions remaining with this modified constitutional amendment hinged on the final Supreme Court ruling. He asked when that ruling would be issued and if the bill could wait for the ruling to ensure that it went along with any stipulations from the final decision. He said that there were some worries about rehabilitation and reformation policies. He wanted to know what this amendment would have on those practices. Lastly, he referred to a constitutional amendment before voters in 1994 regarding the administration of prisoners. It contained provisions relating to the victim's rights of the prisoners. How would that tie into the present resolution, he asked. Senator Dave Donley did not know when the Supreme Court would issue its final decision, but felt that was a good question. He complained that because the court was having such a difficult time making decision over the last several years, it was preventing other matters to be heard such those relating to subsistence issues. He referred to the court's suspension of constitutional rights in the campaign finance area, which he felt was determined illegal under Japanese Internment cases by the US Supreme Court. It ruled it illegal to simply suspend constitutional rights for a period while the court makes up its mind Senator Dave Donley made further comments and offered opinions about the delay in the issuance of the final ruling. He believed the court had a bigger problem with its modification of Ballot Measure #2 without review of the Legislature. He knew of no other instances where this was allowed in the US. He then addressed the question of how this inter-played with the 1994 constitutional amendment regarding victim's rights. In 1994, the Criminal Administration was restructured from the former Penal Administration. The penal administration only referred to the principle of protection and reformation. Section 12 was changed to add several provisions to deal with the rights of victims. He said that the language was inserted with that intent, he didn't feel the court interpreted it that way. He didn't think this amendment would directly impact that issue. I would have an impact upon the prison's aspect of the principle. Senator Al Adams repeated his question about how this proposed constitutional amendment would hamper or negate rehabilitation or reform as set by court order. Senator Dave Donley responded that this would in no way harm the state's ability to enact reformation. He warned that the state needed to be tough and that he didn't think enough was being done to enforce reformation orders. The constitutional amendment would say that it is no longer an individual enforceable right of prisoners. It would now be up to the state to decide what's appropriate. Senator Al Adams had a question for Margot Knuth. "Do you know when the Supreme Court will issue its finding?" MARGO KNUTH, Assistant Attorney General, Department of Law, on loan to the Department of Corrections, testified. She said she didn't know when the decision would be issued but felt it was a matter of weeks rather than months. Senator Al Adams asked Margo Knuth the same questions regarding the reformation of prisoners and the vote in 1993 about victim's rights. Margo Knuth replied that the department hoped that if adopted would not be used as an excuse to not do rehabilitation. She listed the number of people processed through the criminal system each year. Senator Al Adams last question related to the Supreme Court's ruling that last year's proposed constitutional amendment was too broad. Will this version survive a challenge by the public, he asked Margo Knuth responded that it would be difficult to know the legality of the amendment until after the Supreme Court issued its opinion. Co-Chair John Torgerson wanted to know if the Administration had an opinion on this. Margo Knuth said that because of the uncertainty of the court's final ruling, the Administration could not be sure what the impact would be and therefore had not determined a position. Senator Dave Donley offered a motion to move CS SJR 2 (FIN) from committee with accompanying $1500 fiscal note. The motion passed by a vote of 7-1-1. Senator Al Adams case the nay vote and Senator Sean Parnell was absent during the vote.