Legislature(1999 - 2000)

01/25/1999 01:35 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
              SJR  2-CONST. AM: PRISONER'S RIGHTS                                                                               
SENATOR DAVE DONLEY, prime sponsor of SJR 2, presented the bill to                                                              
the committee and said this legislation proposes an amendment to                                                                
the Alaska Constitution to be voted on in the next general                                                                      
election. The bill would amend article 1, section 12 of the Alaska                                                              
Constitution to limit the rights of convicted prisoners in Alaska                                                               
to those to which they are entitled under the United States                                                                     
Constitution. SENATOR DONLEY noted that the legislature passed a                                                                
similar bill last year but that bill applied to the entire                                                                      
constitution and this bill affects only those rights which fall                                                                 
under a specific section of the constitution: article 1, section                                                                
SENATOR DONLEY said this amendment might affect the right of                                                                    
prisoners to have a say in the location of their incarceration and                                                              
the individual right to access programs while incarcerated and may                                                              
also give the State standing to revisit the Cleary decision. The                                                                
Cleary settlement governs prison administration in Alaska and                                                                   
SENATOR DONLEY believes there is no basis for the decision in                                                                   
either state or federal constitutional law.                                                                                     
Number 110                                                                                                                      
SENATOR DONLEY remarked that the Cleary decision removed any                                                                    
flexibility the State had in prison administration and SJR 2 would                                                              
allow the case to be revisited, provided the Department of Law was                                                              
willing to do it.                                                                                                               
More generally, SENATOR DONLEY proposed that this amendment may                                                                 
prevent untold future problems that could result from bad Supreme                                                               
Court decisions. SENATOR DONLEY said as recently as 1997 the court                                                              
has expanded prisoners' rights even in the face of clear evidence                                                               
that was not the intent of Alaska's constitutional convention.                                                                  
SENATOR DONLEY concluded this bill does not deal with as many                                                                   
issues as last year's proposal did, but it is still a useful                                                                    
initiative to put before the voters.                                                                                            
Number 186                                                                                                                      
MS. TAM COOK, Director of Legislative Legal Services, came forward                                                              
to explain why this initiative should pass constitutional muster                                                                
even though last year's did not. MS. COOK stated that the Alaska                                                                
Supreme Court issued a preliminary decision that suggested the                                                                  
legislature has the power to propose amendments to the State                                                                    
Constitution, but not revisions of it. The court decided the scope                                                              
of last year's amendment was so broad it constituted a revision of                                                              
the Constitution rather than an amendment.                                                                                      
MS. COOK explained that since the court has only issued a                                                                       
preliminary decision, her understanding of the reasoning behind                                                                 
their ruling is somewhat limited. MS. COOK observed the court                                                                   
focused on the number of sections of the Constitution that would be                                                             
affected by the initiative and found 12. Two of the sections the                                                                
court focused on, protection from excessive bail, excessive fines                                                               
and unusual punishment, and the rights stemming from the principle                                                              
of reformation, are the sections that will be influenced by this                                                                
new, narrower amendment in SJR 2. MS. COOK said the hope is that                                                                
the initiative has been narrowed enough to be deemed an amendment,                                                              
rather than a revision, by the court.                                                                                           
SENATOR ELLIS asked how it is possible to change the principle of                                                               
reformation without affecting other sections of the Constitution by                                                             
extension. SENATOR ELLIS said this doesn't seem like the best                                                                   
strategy to get this through the court. MS. COOK replied SENATOR                                                                
ELLIS'S objection might be valid but in the preliminary decision                                                                
the court identified the principle of reformation as a separate                                                                 
right. MS. COOK concluded this may be the best shot at trying to                                                                
get something through.                                                                                                          
Number 265                                                                                                                      
SENATOR HALFORD asked when the full written opinion of the court                                                                
could be expected. MS. COOK answered she has no expectations in                                                                 
this regard. CHAIRMAN TAYLOR commented that the failure of the                                                                  
court to issue timely decisions is a problem he would like the                                                                  
committee to address if there is no change. CHAIRMAN TAYLOR said                                                                
the Supreme Court is supposed to consider cases within  four to six                                                             
months and he knows of cases that have dragged out 18 months or so.                                                             
CHAIRMAN TAYLOR remarked this is offensive and he believes the                                                                  
Supreme Court has a duty and an obligation to act with dispatch.                                                                
CHAIRMAN TAYLOR expressed concern that this decision precludes any                                                              
amendment to the Constitution. He suggested an amendment to any                                                                 
provision of the Constitution would have some impact on other                                                                   
peripheral sections and would be subject to the court's ruling. MS.                                                             
COOK replied that the court has indicated it will consider                                                                      
amendments on a case by case basis and it remains to be seen how                                                                
the court will interpret the legislature's ability to propose                                                                   
amendments to the constitution. MS. COOK said case law will                                                                     
accumulate from this and future decisions.                                                                                      
CHAIRMAN TAYLOR commented that the court can read newspapers, too,                                                              
and seems willing to take on some issues and not others. SENATOR                                                                
DONLEY added the real problem is that the court did not allow a                                                                 
full briefing on this issue. SENATOR DONLEY also said that he has                                                               
never in the history of our nation's jurisprudence seen an                                                                      
incidence like this in which a court has amended a proposition put                                                              
forth by the legislature and then placed it (as amended) on the                                                                 
ballot. SENATOR DONLEY remarked the Supreme Court seems to be in a                                                              
"very creative mode."                                                                                                           
Number 376                                                                                                                      
MS. ANNE CARPENETI, representing the Department of Law, said the                                                                
department was caught off guard by the 24-hour rule and she was                                                                 
pinch-hitting for Mr. Dean Guaneli who would be the more                                                                        
appropriate person to speak to this legislation.                                                                                
MS. CARPENETI said she understands CHAIRMAN TAYLOR's frustration                                                                
with the court but is unable to address it. MS. CARPENETI said the                                                              
preliminary decision is based on a California decision (RAVEN v.                                                                
DEUKMEJIAN) which rules that both quantitative and qualitative                                                                  
bases are used to determine whether a constitutional change meets                                                               
the threshold of a revision rather than an amendment.                                                                           
MS. CARPENETI said we do not know exactly the basis on which the                                                                
Alaska Supreme Court came to their decision, but we know that a                                                                 
more limited approach is more likely to get on the ballot. MS.                                                                  
CARPENETI stated that Mr. Guaneli wanted to advise the committee                                                                
that since they seem most concerned with the principle of                                                                       
reformation, they may want to draft the amendment in a way that                                                                 
affects only that provision.                                                                                                    
Number 405                                                                                                                      
SENATOR ELLIS asked SENATOR DONLEY why the bill limits prisoners'                                                               
rights to those allowed by the federal constitution, rather than                                                                
directly repealing the reformation rights granted by the State                                                                  
Constitution. SENATOR DONLEY replied he agrees with the principle                                                               
of reformation in the Constitution and the intent behind it. He                                                                 
explained the Constitutional Convention intended the principle of                                                               
reformation to be a guideline, not an individual right as it has                                                                
been misinterpreted by our court. SENATOR DONLEY said by setting                                                                
the federal benchmark, a minimum standard is guaranteed to                                                                      
prisoners but the court is prevented from creatively expanding                                                                  
prisoners' rights in defiance of the intent of the Constitutional                                                               
Number 435                                                                                                                      
SENATOR ELLIS asked what had happened to the idea that we Alaskans                                                              
don't care how other people do things. He asked if it was SENATOR                                                               
DONLEY'S belief that we spend too much money rehabilitating people.                                                             
SENATOR DONLEY replied he believes our Constitution and the intent                                                              
of the principle of reformation is good, but it is being                                                                        
misinterpreted by our Supreme Court. SENATOR DONLEY suggested the                                                               
1997 case demonstrated the future danger of following the line of                                                               
logic that expands prisoners' rights.                                                                                           
SENATOR ELLIS mentioned that the Department of Corrections spends                                                               
quite a bit of money to make a law library available to prisoners.                                                              
He asked if this bill would affect that. SENATOR DONLEY replied                                                                 
prisoners would still have access to information about the law, as                                                              
specified in the U.S. Constitution, but, unless it is determined by                                                             
the court that the library itself is a requirement of the federal                                                               
constitution, the method of access to the information might be                                                                  
different if it was found to be more cost effective. SENATOR DONLEY                                                             
said it is difficult to understand the Cleary decision fully as the                                                             
court did not see fit to distinguish what was based on federal                                                                  
constitutional law and what derived from our state constitution.                                                                
CHAIRMAN TAYLOR asked if there was anyone else wishing to testify                                                               
on SJR 2.                                                                                                                       
Number 505                                                                                                                      
SENATOR HALFORD moved SJR 2 from committee with individual                                                                      
SENATOR ELLIS objected. SENATOR ELLIS spoke to his objection saying                                                             
he has supported the no-frills prison legislation but in this case                                                              
would like to see the committee wait for more guidance from the                                                                 
Supreme Court. SENATOR ELLIS suggested the committee might send a                                                               
letter to the court asking them to expedite their decision. He                                                                  
commented that his objection was also based on the grounds that a                                                               
constitutional amendment on subsistence is a much more pressing                                                                 
CHAIRMAN TAYLOR responded by saying he believes the Supreme Court                                                               
knew the Legislature would want more than a preliminary opinion on                                                              
this issue and he is not willing to wait. Action may prompt the                                                                 
court's attention to this matter, according to CHAIRMAN TAYLOR.                                                                 
CHAIRMAN TAYLOR noted that if the court ruling under discussion                                                                 
says anything, it says the legislature will never be able to bring                                                              
an amendment on subsistence that is narrow enough to be considered                                                              
an amendment rather than a revision. SENATOR ELLIS asked if                                                                     
CHAIRMAN TAYLOR planned to work on a subsistence amendment. SENATOR                                                             
TORGERSON interjected that this was not part of the discussion and                                                              
they were working on SJR 2.                                                                                                     
Number 550                                                                                                                      
SENATOR ELLIS remarked he was simply addressing CHAIRMAN TAYLOR'S                                                               
comments and he hoped the committee would continue to conduct                                                                   
itself in the open, fair and far-ranging manner it has in the past                                                              
under CHAIRMAN TAYLOR'S leadership.                                                                                             
CHAIRMAN TAYLOR called for the vote on the motion.                                                                              
The roll was called on the motion to move SJR 2 from committee with                                                             
individual recommendations. Voting yea were SENATOR HALFORD,                                                                    
SENATOR TORGERSON, SENATOR DONLEY and CHAIRMAN TAYLOR; SENATOR                                                                  
ELLIS voted nay. SJR 2 moved from committee with individual                                                                     

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