Legislature(1999 - 2000)

02/18/1999 08:58 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                                             
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                                                                      
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                                                                           
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                                                                      
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                                                                             
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                                                                              
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                                                                            
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                                                                              
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                                                                     

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