Legislature(1997 - 1998)
10/16/1997 09:10 AM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
October 16, 1997
9:10 a.m.
Anchorage, Alaska
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James (via teleconference)
Representative Ethan Berkowitz
MEMBERS ABSENT
Representative Eric Croft
OTHER HOUSE MEMBERS PRESENT
Representative John Cowdery
COMMITTEE CALENDAR
CS FOR SENATE JOINT RESOLUTION NO. 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.
- HEARD AND HELD
PREVIOUS ACTION
BILL: SJR 3
SHORT TITLE: PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS
SPONSOR(S): SENATOR(S) DONLEY, Halford, Pearce, Phillips, Sharp,
Leman, Green, Ward, Miller, Kelly
JRN-DATE JRN-PG ACTION
01/03/97 10 (S) PREFILE RELEASED 1/3/97
01/13/97 10 (S) READ THE FIRST TIME - REFERRAL(S)
01/13/97 10 (S) JUD, FIN
02/05/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/05/97 (S) MINUTE(JUD)
02/12/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/19/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/19/97 (S) MINUTE(JUD)
02/26/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/26/97 (S) MINUTE(JUD)
02/27/97 535 (S) JUD RPT CS 3DP 1NR NEW TITLE
02/27/97 535 (S) DP: TAYLOR, MILLER, PARNELL;
NR: ELLIS
02/27/97 535 (S) ZERO FISCAL NOTE TO SJR (ADM)
03/10/97 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/10/97 651 (S) FIN RPT 6DP 1NR (JUD)CS
03/10/97 651 (S) DP: PEARCE, SHARP, PHILLIPS, PARNELL,
03/10/97 651 (S) TORGERSON, DONLEY; NR: ADAMS
03/10/97 651 (S) PREVIOUS ZERO FN (ADM)
03/10/97 651 (S) REFERRED TO RULES
03/10/97 658 (S) COSPONSOR(S): PHILLIPS
03/12/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203
03/12/97 (S) MINUTE(RLS)
03/19/97 787 (S) COSPONSOR(S): SHARP, LEMAN, GREEN,
03/19/97 787 (S) WARD, MILLER
04/11/97 1102 (S) RULES TO CALENDAR 4/11/97
04/11/97 1104 (S) READ THE SECOND TIME
04/11/97 1104 (S) JUD CS ADOPTED UNAN CONSENT
04/11/97 1104 (S) ADVANCED TO THIRD READING
UNAN CONSENT
04/11/97 1104 (S) READ THE THIRD TIME CSSJR 3(JUD)
04/11/97 1105 (S) PASSED Y15 N4 E1
04/11/97 1105 (S) DUNCAN NOTICE OF RECONSIDERATION
04/14/97 1132 (S) RECON TAKEN UP - IN THIRD READING
04/14/97 1132 (S) HELD ON RECONSIDERATION TO 4/16
CALENDAR
04/16/97 1226 (S) HELD ON RECONSIDERATION TO 4/18
CALENDAR
04/18/97 1293 (S) IN THIRD READING ON RECONSIDERATION
04/18/97 1293 (S) COSPONSOR: KELLY
04/18/97 1294 (S) PASSED ON RECONSIDERATION Y14 N3 E3
04/18/97 1305 (S) TRANSMITTED TO (H)
04/21/97 1206 (H) READ THE FIRST TIME - REFERRAL(S)
04/21/97 1206 (H) JUDICIARY, FINANCE
05/08/97 (H) JUD AT 1:00 PM CAPITOL 120
05/08/97 (H) MINUTE(JUD)
10/16/97 (H) JUD AT 9:00 AM ANCHORAGE LIO
WITNESS REGISTER
SENATOR DAVE DONLEY
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801
Telephone: (907) 465-3892
POSITION STATEMENT: Prime sponsor of SJR 3.
BILL PARKER, Deputy Commissioner
Department of Corrections
4500 Diplomacy Drive, Suite 207
Anchorage, Alaska 99508-5918
Telephone: (907) 269-7397
POSITION STATEMENT: Provided department's position and answered
questions regarding SJR 3.
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Asked questions regarding SJR 3.
THERESA N. OBERMEYER
3000 Dartmouth
Anchorage, Alaska 99508-4413
Telephone: (907) 278-9455
POSITION STATEMENT: Testified regarding various issues unrelated
to specific legislation.
ACTION NARRATIVE
TAPE 97-82, SIDE A
Number 001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 9:10 a.m. at the Anchorage Legislative
Information Office (LIO). Members present at the call to order
were Representatives Green, Bunde, Berkowitz and Rokeberg;
Representative James was present via teleconference.
Representative Porter arrived shortly thereafter.
CSSJR 3(JUD) - PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS
CHAIRMAN GREEN announced the committee would hear CS for Senate
Joint Resolution No. 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.
Number 011
SENATOR DAVE DONLEY, prime sponsor, expressed appreciation for the
interim hearing. He explained that SJR 3 would limit the rights of
convicted prisoners in Alaska to those rights to which they are
entitled under the United States Constitution. Alaska's
constitution is a hybrid developed late in the history of our
country, and it contains many more specific sections regarding
individual rights and liberties. Senator Donley stated, "I think
that's wonderful as applied to law-abiding citizens. But it may
distort what the actual intent was if it's extended to convicted
prisoners in our institutions."
SENATOR DONLEY pointed out that the sponsor statement outlines
several instances where Alaska courts have ruled that unique
provisions of our constitution have required that additional rights
be granted to convicted prisoners. When SJR 3 went through the
hearing process in the Senate, they'd made clear that convicted
prisoners are the people to whom they want this to apply. It
wouldn't apply prior to somebody's actual conviction. Senator
Donley stated, "So, we didn't want to presume to take the rights
away, the extra rights that Alaskans have, before they've actually
been found guilty of some crime by a court."
Number 030
SENATOR DONLEY explained that SJR 3 would just set the benchmark as
the U.S. Constitution and those things required by the U.S.
Constitution. He referred to the sponsor statement and said those
items include discipline and classification. Senator Donley
stated, "In fact, this one was brought to my attention when I
visited the facilities in Arizona that we lease or pay for, for
Alaska prisoners in Arizona. It was pointed out to me by the
superintendent of that facility; he couldn't understand why for
Alaska prisoners they had to go through all these additional due
process steps for disciplinary and classification hearings, when
he'd been in the federal system. And they never had to do that in
the federal system or any other state system he'd ever seen. So,
that's an additional thing that the courts have required of us
under the due process provision."
SENATOR DONLEY said in Ferguson v. State, the courts found that
Alaska prisoners have a specific right to rehabilitation programs
not found in other states. That comes from the existing provision
in our constitution that says "the criminal administration shall be
based on the principle of reformation." That language has been
there for a long time. Senator Donley said it is interesting that
the courts took the principle of reformation and turned it into
rights for prisoners. He cited that as an example of how one can't
predict how the courts would continue to extend those rights over
time. He suggested the only way to stop that continued extension
is by clarifying in the constitution that it wasn't meant to grant
specific rights to prisoners but was meant more as a principle for
the administration of our prisons. "And I believe it's appropriate
to be in there as a principle, but not necessarily as a right," he
added.
Number 050
SENATOR DONLEY referred to Bounds v. Smith and said there had been
a specific extension to ensure that a law library is available. He
said that is not the standard across the nation; the standard is
that prisoners have to have access to legal assistance. In fact,
in some other prisons, they've found it cheaper to provide
prisoners with an attorney instead of a full law library, which
must be stocked and updated. However, Alaska doesn't have that
option but must provide law libraries.
SENATOR DONLEY said the location of incarceration was dealt with
this past summer in the Brandon case. It said that under Article
I, Section 12, the principle of reformation, it required that the
Department of Corrections give substantial deference to an inmate's
desire to be incarcerated near friends and family. Senator Donley
stated, "This right has been rejected by the federal courts, and
all other 49 states have universally rejected [that] the prisoner
gets to have some particular say or right in which particular
institution they're placed into (indisc.) location in the state."
SENATOR DONLEY said those are just some examples. He mentioned the
continuing possibility of the courts' finding specific rights for
Alaska prisoners based on our unique constitution. He restated
that while a principle of reformation is appropriate in our
prisons, he doesn't think it should be a right of every prisoner to
have specific items under that. "It should be a general principle
that's within the administration and executive branch discretion of
what to provide," he explained.
Number 070
SENATOR DONLEY provided background on the development of SJR 3. At
first, it was a specific amendment to Article I, Section 12, of the
state constitution. He stated, "The Department of Law pointed out,
in hearings, that they felt that if it was just in that article,
which is the article that deals with cruel and unusual punishment
and has the victim's rights clause and the principle of reformation
in it, if it was just in that article, that the courts might not
find it applicable to the rest of the constitution. Accordingly,
in Senate hearings, it was decided to break it out into a separate
section of the constitution so it would be clear it was to stand by
itself and would modify the entire rest of the constitution,
because at some future time, as with the due process question,
courts may find additional rights for prisoners that they don't
grant to other states in other elements of our state constitution,
such as the right to privacy, other equal protection and due
process questions. So, by placing it in a separate section,
hopefully -- well, the intent is to modify those kind of
provisions, too, and limit the rights to those under the U.S.
Constitution."
Number 085
SENATOR DONLEY continued, "Subsequent to doing that this summer, we
talked some more with Department of Law. Department of Law pointed
out that now that we've moved it out of that section, it might be
possible that a court would say we didn't intend to modify all the
language in that section. ... So, I'm glad they pointed out that
concern to me; so, we have prepared a potential solution to that.
There's probably three ways to go here with that. One, I think it
could be addressed just by a letter of intent, and I've drafted a
letter of intent that would do that, making it clear that we wanted
it also to apply to those specific things under the Alaska
constitution that don't exist under the U.S. Constitution. The two
that would jump right out would be the principle of reformation and
the victim's rights, because I could ... envision, sometime in the
future, where a prisoner argued against a victim's interest, and
based on some other aspect of the Alaska State Constitution, the
prisoner can prevail over the victim's interest identified in our
constitution."
SENATOR DONLEY continued, "Now, that would be appropriate if that
argument from the prisoner was based on the U.S. Constitution, but
I'd hate to see our court soften our victim's rights amendment
based on some other provision of our state constitution for the
prisoner's rights. So, we've tried to specifically address that in
the letter of intent, saying ... that we are including in this
limitation any language that appears in the state constitution that
doesn't appear in the federal constitution." Senator Donley
indicated his draft contains citations of specific cases "that we
want to reverse the opinions in, that granted those rights that
I've identified in my sponsor statement ... and in the actual draft
language, which I believe the committee has in front of it, in the
form of a draft blank CS; we specifically referenced the principle
of reformation, because that's the biggest question mark."
SENATOR DONLEY continued, "So, it would read, `Notwithstanding
Section 12 of this article, the rights and protections, including
the principle of reformation and the extent of those rights and
protections afforded by this constitution, prisoners convicted of
crimes shall be limited to those rights and protections to the
extent of those rights and protections supported under the
Constitution of the United States to prisoners convicted of
crimes.' So, we tried to be very, very specific to address the
Department of Law's comments based on the changes we made based on
their recommendations." Senator Donley said that brings the
committee up to date regarding the evolution. He stated his belief
that this is an important question for the future.
Number 119
SENATOR DONLEY said the other issue he'd address is the question of
whether this would have any impact on the Cleary consent decree. He
said it is important to understand that Cleary wasn't a court
decision but a consent decree. It was a settlement entered into
between the state and the prisoners in the state represented in
that case. Because it is a consent decree, in and of itself, a
constitutional amendment wouldn't change that settlement; it stands
on its own. However, there has been a substantial development in
federal case law indicating that the federal courts are willing to
entertain states' seeking to modify agreements such as the Cleary
agreement.
SENATOR DONLEY stated, "Now, the Cleary agreement repeatedly -- and
it says you can't change it, can't change it, can't change it,
unless something major happens, right? I mean, it's all through
that, there's language in there saying that. And I would say that
the state, in the present status quo, would have a very difficult
time changing Cleary. As you all may be aware, we passed a
resolution about three to four years ago asking the state to go in
and ... re-examine that and try to seek an amendment to Cleary on
some aspects. The Department of Law never did that. And they said
that's one of the reasons they didn't do it; they had no major
change in the status quo ... from which to base an argument to the
court ... that they want to change it."
SENATOR DONLEY said while SJR 3 wouldn't change Cleary directly, he
believes it certainly would give the Department of Law an argument
that there has been some major change in the status of prisoner
rights in Alaska, to seek to go in and modify Cleary. Whether that
would be successful or not, nobody knows, because since Cleary
wasn't a decision, there is no specific articulated basis in law
for the things it sets out.
SENATOR DONLEY said, "In fact, throughout the process it was kind
of a jumbled argument based on state and federal constitutional
rights. It wasn't really delineated, ... are we doing this because
the state constitution requires it or are we doing this because the
federal constitution requires it? And courts will do that unless
they're forced to be specific, ... so they can just throw
everything together, and they'll just say, `Based on state and U.S.
constitutional law, we rule X, Y and Z.' And until they have to
make a choice or have to explain which one they're doing it on,
frequently they won't. It makes it harder to overturn their
decisions."
Number 154
SENATOR DONLEY stated, "But by adopting a single standard like
this, clearly anything they ordered or required ... in a decision
on issues that are presented in Cleary would have to be based on
the federal scheme, which would make everything a lot simpler to
understand. It would remove a lot of the variables because there's
a long line of federal prisoners' rights cases. And it would make
the administration a lot simpler, not just for the three or four
specific items we have now but for all the future potential of
unique findings by the court based on our unique state
constitution."
SENATOR DONLEY continued, "So, in the letter of intent, I would
suggest that we add a specific paragraph also saying something to
the effect that `this amendment is intended to authorize the state
of Alaska to request court modification of the settlement, to
remove any settlement terms not required by the United States
Constitution.' I think that would give the Department of Law the
basis to go back in and revisit those issues in Cleary. I'm
uncertain, just because everybody's been uncertain, what the court
would specifically rule would be required by the U.S. Constitution,
because although we have a line of cases, a lot of the things that
deal with prisons are ... a total look at the situation. So, there
is nothing specific that says you have to have `x' number of square
feet. They look at the total circumstances involved in that."
SENATOR DONLEY continued, "I can tell you that nowhere in the U.S.
Constitution or anywhere else I've ever heard is the things that
you find in Cleary prohibiting ... dormitory situations. And it
may be something that our prisons actually want to steer away from.
But in private prison administration, which tends to be a lot more
economical, you find a lot of dormitory situations there. Cleary
says we shouldn't built any more dorm situations in any prisons we
build; we should have all single or individual rooms. So, that's
an example. ... I can envision a court saying that ... you can't
have dorms if you don't have some other space or something, right?
Because they're going to look at this thing as a whole picture.
So, it's hard to sit here and say, `Okay, there's going to be this,
this and this,' because ... they're going to look at what the total
picture at a particular institution is for what's appropriate under
the cruel and unusual punishment clause of the U.S. Constitution.
But this is the only thing I know that's on the table today that
would have a good chance of at least giving us a way in to re-
examine Cleary. Thank you, Mr. Chairman."
Representative Porter joined the meeting.
Number 189
CHAIRMAN GREEN asked, "Senator, would it be your opinion that - or
maybe there's a precedent - that if the state did seek to modify
Cleary, would the supreme court have the same jurisdiction or
ability to not hear a case that the federal Supreme Court does, or
... would that have to be heard?"
SENATOR DONLEY indicated that unless prisoners appealed directly to
the federal system and made some case that it was a federal right
being directly impacted, which he had heard of, he would think it
would go to the state supreme court, which would rule on standards
developed in federal law or as the state supreme court saw those
standards applied to this specific situation.
Number 201
CHAIRMAN GREEN said that wasn't quite his question; he was
wondering whether the state supreme court would have the same right
to not grant the request for a hearing.
SENATOR DONLEY replied that they can always do that.
Number 210
CHAIRMAN GREEN noted the presence of Representatives Dyson and
Porter. He also invited Bill Parker, Deputy Commissioner of the
Department of Corrections, to join the committee at the table.
Number 213
REPRESENTATIVE CON BUNDE acknowledged that some of his questions
may have to be answered by the Department of Corrections. Noting
that there may be two classifications of prisoners at the Sixth
Avenue Correctional Center, some with more rights than others, he
asked whether the mechanics of that would cause a problem.
SENATOR DONLEY said that may need to be worked out. He said they
would still be entitled to the specific types of examples given
here regarding discipline and classifications. He stated, "But
since they're in pending trial, too, to say that they've got a big
interest in rehabilitation programs is hard to argue from the
prisoner's point of view, saying that, ... `They should let me take
some sort of vocational training class in maybe the one-year period
I'm awaiting trial or something, for two years.'"
SENATOR DONLEY said it doesn't seem that it will be a huge,
difficult issue, although there might be a few things that would
come up over time on that. At the Sixth Avenue Correctional
Center, the average stay is two days. And the longest they've had
somebody stay was two years, which was extraordinary there.
Senator Donley said, "You know, if there were a lot of people
staying two years, I would say, `Yeah, you might have some
questions, you know, about dichotomy of rights involved.' But with
the average stay being two days, I don't think it's going to come
up a whole lot."
Number 232
REPRESENTATIVE BUNDE asked: If this resolution came to pass, would
they then have to revise, strike or otherwise address that part of
the constitution that speaks to rehabilitation?
SENATOR DONLEY replied no. The portion of the constitution that
speaks to the principle of reformation is Article I, Section 12,
which wouldn't have to be changed. He stated, "What this does is
simply modify it to make it clear that there is no special right to
reformation; it's a principle. It would remain in the constitution
as a principle of criminal administration, which is, I think, what
it was intended to be in the first place, and not a unique right
for prisoners to demand the state have a certain educational course
for them or demand a certain program from the state. ... It was
originally penal administration in here. It's an important
principle of criminal administration, and it's appropriate to be in
there. And we should do our best efforts to do it. But I don't
think that we should be sued by prisoners if we don't do exactly
what they think we should do."
Number 263
REPRESENTATIVE BUNDE said he was a little concerned about intent
language, which had a mixed record regarding success, particularly
as it relates to the budget and particularly if an administration
is `hostile.' He asked whether there is some way to address
concerns about the intent language and to ensure it is what the
legislature intends without having to have intent language.
SENATOR DONLEY said common sense would tell him that all that is
needed is a letter of intent; in an ideal world, he'd prefer that
because then they could continue to just use the simple and direct
language in the proposal before the committee right now. However,
they want to give as much direction to the courts as possible. He
suggested it would probably be wise to "amend the body of the
proposed amendment to be very, very specific that we're including
the principle of reformation, as we're limiting that, and also do
a letter of intent."
SENATOR DONLEY said the good news with the letter of intent is that
since this is a joint resolution, it is not subject to a
gubernatorial veto. "So, the court will get whatever letter of
intent we attach to this without question; it's going to be there,
whatever we would decide," Senator Donley said. "But I think it's
also very important to go ahead and specifically address that
particular question from the Department of Law in the body of the
amendment also (indisc.)."
Number 292
REPRESENTATIVE NORMAN ROKEBERG said he was reading parts of the
Brandon case. He asked for confirmation that the "principle of
reformation" being discussed is basically the same as "our
constitutionally guaranteed right of rehabilitation."
SENATOR DONLEY replied, "That's where it's been interpreted by the
court as to grant a right of (indisc.--coughing) rehabilitation."
Number 299
REPRESENTATIVE ROKEBERG again referred to Brandon and said the
court points out that there is a constitutional right of
rehabilitation, which is certainly understandable. He stated, "The
court goes on to point out that we have regulations that require
that rehabilitation or treatment of prisoners shall not be
substantially impaired, which seems (indisc.). But then it goes on
to say that this administrative code echoes this requirement, that
Brandon asserts that the DOC erred in determining that ... his
rehabilitation would not be substantially impaired by transferring
him to the Arizona facility. This is a question grounded ... in a
fundamental constitutional right. Then it has a footnote here that
says that visitation is important to rehabilitation; that's been
widely recognized. And it footnotes this whole concept out of a
book called `The Rights of Prisoners,' then goes on to cite a
Kentucky case at the supreme court level decided in 1904 as its
foundation for saying, `We need to be able to have visitation to be
rehabilitated.' Ergo, our whole ability to control population has
just been usurped by the courts here. This is just scary stuff.
Am I on the right track, Senator, on what this case is saying
....?"
CHAIRMAN GREEN asked Bill Parker to offer his opinion if they got
off-track.
SENATOR DONLEY replied to Representative Rokeberg, "I'd say that
even though there was a Kentucky case that said that visitation was
important, 49 other states have rejected the principle that a
prisoner should be able to somehow dictate where they're
incarcerated, and the federal courts have rejected that also. So,
even though there may be a case that said - by some other state -
that said visitation was important, no other state said that, ergo,
prisoners got to have some significant say in where they were
incarcerated."
REPRESENTATIVE ROKEBERG suggested this could impact the "entire
construction scenario of any further additions to facilities in the
state." Rather than having the "big house" concept, which he
personally favors, they would have to have dispersed smaller
facilities; that would be inefficient and costly. He stated
support for the resolution.
REPRESENTATIVE ROKEBERG referred to dormitories and said he'd
visited the facility in Florence, Arizona. There, the
superintendent pointed out that use of dormitories there was "a
great positive." Within their modules, which have as many as 23
beds, there are larger common areas, making it a more pleasant
setting, although still stark. It also allows a single guard to
overlook two modules simultaneously. The staff reductions and
savings are considerable, yet these facilities are "clean,
functional and so forth." He suggested they are only really
effective if they can have a dormitory-type configuration.
Number 363
BILL PARKER, Deputy Commissioner, Department of Corrections (DOC),
advised members that the practical effect of Brandon in the DOC so
far has just been on moving people to Arizona, not moving them
between the state facilities. Noting that Mr. Brandon is in
Florence, Arizona, Mr. Parker explained, "And that was his beef, is
that he was separated from his family, visitation was basic to his
rehab, and that we'd somehow not considered that. So, the
Department of Law has coached us to say what that means is we have
to now consider visitation, family visitation, before we move
someone to Florence. Up until now, they've had to be -- it's their
custody level; they have to be close or medium custody. They have
to have three-and-a-half years left on their sentence."
MR. PARKER continued, "There's a rural exemption if they are true
village people; if they've never lived on the road system,
basically, then we figure it's a double culture shock to send them
to Florence. Bringing them into the system is culture shock
enough. Now, we've added another criteria we consider when we
classify them. They get to make their statement before ... the
board. They can say what their visitation situation is. So, if
their, I suppose, mother had moved to the town where the prison is
and made a big effort, that when he decides (indisc.) got to go to
Arizona or not, that would be one more thing to think about. So,
the practical effect has been considering visitation, not letting
... the inmate dictate to us which state institution he wants to
live in."
Number 383
REPRESENTATIVE ROKEBERG asked whether they are now having any
difficulty, because of the Brandon ruling, filling the beds for
which they've contracted.
MR. PARKER replied, "It takes a little longer to classify them.
And the appeals ... come to me. ... So, it makes my life a little
more miserable when the mothers call, and they do call, to say what
a sad situation their son is in and what it means to them. Before,
I could say, `Ma'am, ... I appreciate what you're saying, but I
can't consider that; we're just going on the custody level, time to
serve and rural exemption.' Now, I have to say, `Thank you for
calling; I'll consider that.' I make a note and put it in the
file. When that appeal comes through, then it's one more thing to
throw in the stew and make the best judgment I can."
Number 402
REPRESENTATIVE BRIAN PORTER apologized for being late. He advised
members that he is a cross-sponsor of this legislation. He said
the folks at Sixth Avenue Correctional Center or any other pre-
trial facility will automatically have a different situation
because of the presumption of innocence. He said nothing in this
legislation would change that.
REPRESENTATIVE PORTER stated, "One of the things that we were able
to do ... a few years back was amend our constitution for the
victim's rights and in the area of criminal administration. In
fact, prior to that constitutional amendment (indisc.--poor sound
quality) to the principle of reformation was the first task listed
(indisc.) administration. Now, it's the last of the section,
Article I, Section 12. It says that criminal administration shall
be shall be based upon the following: the need for protection of
the community, or of the public, community condemnation of the
offender, the rights of victims of crimes, restitution from the
offender, and the principle of reformation. I don't think we're
stepping on that too badly with this."
Number 430
MR. PARKER referred to Representative Bunde's question about
whether the mechanics of it would be a problem. He stated, "I
think the honest answer is yes. At the Sixth Avenue jail, we mix
(indisc.). At all the regional facilities - at Lemon Creek in
Juneau, at Anvil Mountain in Nome, at Y-K in Bethel, at the
Fairbanks jail - the state effectively runs the jail. And we mix
pre-trial inmates with sentenced inmates; they're a combination
prison and jail."
MR. PARKER said he believes it would be troublesome if they had
separate rights. There are two classes of inmates, pre-trial and
sentenced, in all those places they'd just discussed: Sixth Avenue
Correctional Center, Cook Inlet Pre-Trial Facility and Lemon Creek
Correctional Center. Mr. Parker stated, "If you had to separate
them or keep them mingled but offer them separate rights,
especially in these days of overcrowding, I think it'd be less than
honest to say that wouldn't be problematic."
Number 450
REPRESENTATIVE PORTER asked whether the department believed it
would be appropriate to provide the right of reformation to someone
who is presumed innocent.
MR. PARKER responded, "There's an interesting constitutional rabbit
trail to go up here. All I'm trying to say is: The nuts and bolts
of running the Sixth Avenue jail would be more trouble for
Superintendent Webster if he had to say, `Now, you're here, inmate
X; ... have you been convicted or not yet?' Or he could look it up
and then decide, `Okay, then you can use the law library' or `You
can't.' Of course, you don't put people in the programs or
anything if they're doing two days. But generally, they're
mingled. They're in the same institution, often in the same room
together. So, if they had separate rights, I think it would follow
logically there would be more trouble for the administration of
that facility to manage than as it is now."
Number 475
CHAIRMAN GREEN asked how many holding tank facilities would have
convicted prisoners for an extended period. He noted that they'd
heard an example of a two-year stay, but that was extremely rare.
He asked whether it wouldn't be possible, even in a crowded jail,
to separate prisoners who have not yet been convicted from those
who had. He suggested those already convicted would be transferred
to a prison sometime in the near future.
MR. PARKER replied that maybe a better example is the Cook Inlet
Pre-Trial Facility, which has "pre-trial" right in its name. He
stated, "It was built for a hundred and some; we've got about 450
there this morning. There are as many sentenced there, I think, as
there are pre-trial now. It's a function of overcrowding. So, any
graduate school seminar on corrections would tell you that Alaska's
probably doing a bad thing (indisc.) those people. But the fact
is, there really isn't any choice. We can barely do it the way
we're doing it. So, I think philosophically I see exactly where
we're going here, and it's very attractive. I've just got to tell
you, down on the ground - not my job, the guys in the institutions
- it could make their life harder."
Number 502
SENATOR DONLEY suggested there are a limited number of those. He
mentioned Sixth Avenue, Cook Inlet and Lemon Creek.
MR. PARKER replied, "All the regional facilities are basically
jails and prisons." He listed Lemon Creek in Juneau, Fairbanks
Correctional Center, the Fairbanks city jail, Anvil Mountain in
Nome and Yukon-Kuskokwim in Bethel. He said all those are a
combination of the local jail and a long-term prison.
Number 513
SENATOR DONLEY said, "Of course, the simple answer to this is if
you ever had a problem where you had a significant number of
convicted folks mixed in with nonconvicted folks, just keep doing
things the way you're doing them now. And in those facilities,
such as (indisc.) Spring Creek, or ...."
MR. PARKER interjected, indicating for those, by definition there
is no pre-trial.
SENATOR DONLEY suggested for those, they could go ahead and
wouldn't have to follow the same rules they follow currently.
"You'd just follow whatever the federal standard was," he said.
"That would be the simple way to break into this. And as you
developed your prisons appropriately and started to segregate these
communities out, you could just extend your administration
appropriately. But this doesn't require that you don't continue
things you're doing now. It just says you don't have to for those
people who are convicted."
Number 530
REPRESENTATIVE FRED DYSON referred to earlier testimony about the
other 49 states and federal rulings on that. He asked Senator
Donley to explain that.
SENATOR DONLEY replied, "In the last monthly Department of Law
report, they did an analysis of the Brandon case. And in it, they
specifically said that when they briefed the case, they pointed out
to the court that this particular right to have say over ... where
or what facility you're incarcerated in has been specifically
rejected in 49 other states and by the U.S. courts, by the federal
courts."
Number 543
REPRESENTATIVE DYSON stated his understanding that the federal
courts have supported the decisions reached in 49 other states.
SENATOR DONLEY replied, "Yeah, and they also have a federal prison
system. So, it told me that it's been litigated out also as
prisoners in the federal system said, `You know, I don't want to go
to Leavenworth; I want to go someplace else.' Right? `And because
my family's closer to that other federal (indisc.--coughing),' then
the courts rejected that."
Number 552
REPRESENTATIVE ETHAN BERKOWITZ said he hadn't read Brandon yet, but
from what he'd heard, all it says is "not that prisoner has the
right to demand placement at a facility but that the prisoner's
wishes or the wish of the prisoner's family is something to be
factored in." He asked whether that is correct.
SENATOR DONLEY replied, "I think that's correct. And as part of
the language, as an interpretation of the language, the principle
of reformation language in the constitution that somehow visitation
-- first of all, the courts made the ruling that this `principle'
language means it's a right. That is the first step the court had
to make, (indisc.) go from the language that says `a principle' to
`it's a right.' The second, they said that, `Well, if visitation
is helpful in the reformation of somebody, well, then, that becomes
a right that has to be considered as you're deciding where to
incarcerate (indisc.), where to put somebody. So, ... I don't
think the Brandon case was an absolute. Here I think you're
correct. But I do think it makes it more difficult to run the
prisons, and if you read it, ... it's a very easy step for a lawyer
to make that somebody from Barrow should not be in Juneau. I mean,
that's a thousand dollar plane ticket to go visit ... your
incarcerated loved one also. And it's probably more expensive to
fly from Barrow to Juneau than it is from Anchorage to Phoenix.
So, I think I could win that case in court."
Number 587
REPRESENTATIVE BERKOWITZ stated his understanding that effectively,
Alaska is no different from the other 49 states at this time.
SENATOR DONLEY replied, "Yes, we are. Forty-nine other states have
rejected ... that you have to take into consideration where the
prisoner wants to be incarcerated, at least according to the
Department of Law. I didn't do that research, because the
Department of Law said that in its monthly report."
Number 597
REPRESENTATIVE BUNDE asked to hear Mr. Parker's opinions about the
resolution. He specified that he wanted to talk about philosophy.
Number 602
MR. PARKER advised members that he'd just seen the new proposed
committee substitute that morning. He indicated they would confer
with the Department of Law and see what it means. He stated, "But
when we last spoke to you, last session, about this, we couldn't
support the resolution because frankly, it wasn't real clear what
changing the standard from the state to the U.S. Constitution would
do. But generally it was clear that it would be a lessening of the
rights for the inmates. And they (indisc.) that it was to put us
in a new posture with Cleary where we could somehow renegotiate
(indisc.) and not do some things we're doing. Now, the law
library, for example, and due process in the hearings for another,
(indisc.) the Cleary issues. There's a long laundry list; I've
forgotten how many when the final settlement agreement was ...."
[Ends mid-speech because of tape change.]
TAPE 97-82, SIDE B
Number 001
MR. PARKER continued, "... in Arizona, and we think we've got that
solved. The parity for women, as you know, ... we're going to
change the mission of the Eagle River facility. It's now a double
facility. Meadow Creek has 56 inmates. Hiland Mountain's 162, I
think. We're going to flop -- we're going to put the women in the
bigger one, so that all the women in the state except those who are
pre-trial can come and stay in one facility, and they will be then
offered the same programs and benefits that the male inmates are.
So, we will, ... we think, in the next few months - by sometime
this winter, spring for sure - we'll have solved grievances and the
women inmate parity issue."
MR. PARKER continued, "That leaves overcrowding. As you know,
we're not going to solve that anytime soon. The department has a
three-part plan underway. When Mr. Endell was commissioner, he
used to say that corrections is like a bathtub overflowing. You
can turn the tap down, you can let the drain stopper out or you can
build a bigger tub. Obviously, in the case of your own bathroom,
you try to do one of those other two things first. And that's what
the department is trying. We have an NIC (National Institute of
Corrections) grant. It's been underway for three or four months -
some of you, I think, are active in the steering committee - to ...
meet with the judges and the other criminal justice folks and see
if we can come to some efficiencies in the number of inmates that
are coming in; that's turning down the tap."
MR. PARKER continued, "We've also got another committee conference
going in the department to consider what we can do to get some out
earlier, to either parole some people earlier or change them to
some other than incarcerated status; that's ... pulling the stop
out of the drain. The third part of that, building a bigger tub,
is of course expanding the system, increasing the number of beds in
the state. And there will be a bill again this year from the
Administration to do that. I think it will not be as big as the
$150 million bond issue we tried two years ago and got nowhere
with. But we've got to do all three of those things: We've got to
turn the tap down, we've got to let some water out of the drain,
and we've got to get a bigger tub. We've got to [get] fewer
inmates in, we've got to get more inmates out sooner, we've got to
get more bed space."
MR. PARKER continued, "I take you on that little side trip to tell
you that last year we limited their access to television and
computers and weight (indisc.) the inmates access. Now we're
talking about renegotiating Cleary so you can eliminate some of
their rights that they've already gained in court. It's my opinion
- I think I speak for the department - to say that what I want to
add to the conversation this morning is: We should be putting our
energies into expanding this system, rather than tuning up the most
troublesome and mettlesome parts of what we had. The Cleary
settlement is, I said, about eight years old now. We've got most
of the issues solved, except overcrowding. I think the best favor
I could do the department and you is to try to change the focus to
`What can we do to expand the system we have instead of tuning up
... what we already work with?' I will, however, take this
amendment back to the commissioner, and we'll confer with the
Department of Law and see if that changes our position."
Number 069
CHAIRMAN GREEN commented that there is a bill in the works right
now to look at possibly altering the sentencing; that might turn
that spigot down a little. He asked, "In your opinion, is
expanding the system the only way to avoid Cleary if we can't avoid
Cleary through something like this?"
MR. PARKER repeated the phrase, "avoid Cleary."
CHAIRMAN GREEN said, "Well, the problem that we're having with the
overcrowding, not only ... from a surveillance or an operational
standpoint but from a legal standpoint."
MR. PARKER replied, "I think we're going to have to expand. ... The
Cleary caps are at ... 2,691, not quite 2,700, beds. We've got
about just over 500 more than that in those beds today. So, we're
500 over the emergency cap set by the court. I think realistically
any combination of tactics we take will have to feature the
centerpiece, building more beds."
Number 084
SENATOR DONLEY responded, "I agree with Mr. Parker and the
department that we need to build more beds. I think this helps in
that direction, though, in that if we can revisit Cleary and the
courts were amenable to the argument to remove some of ... the
specific provisions in Cleary about how you would construct new
facilities, it might make it easier and more efficient for us to
build some of the new facilities. So, I do think there would be a
related impact if this eventually led to an opening of Cleary and
a re-examination ... by the courts. So, it could have a benefit
towards the primary goal that the department has, which I share.
If I could do one thing, the first thing I'd do ... would be expand
beds. But I think ... this actually has an aspect that could help
that, getting to that primary goal."
SENATOR DONLEY continued, "And, once again, I'd like to say that
while this would remove these things as rights, you could still
continue to do these things. It doesn't mean that you can't
continue to do these things. If you think they're the right thing
to do, do them because they're the right thing to do, but don't do
them because they're somebody's specific right."
Number 098
REPRESENTATIVE ROKEBERG referred to Mr. Parker's testimony
regarding the needs of the department and the mention that "the
Governor would be coming again with his facility program." He
asked whether there was an actual bill relating to that, and he
noted that it came up in the 19th Legislature.
MR. PARKER said there was a bill, but he didn't know the actual
bill number.
Number 110
REPRESENTATIVE BERKOWITZ observed that he found it somewhat ironic
that some of the sponsors of this legislation were willing to trim
their sails to the federal mandate in this regard but not
elsewhere. He asked Senator Donley to comment on that.
SENATOR DONLEY acknowledged that with just a cursory look at the
direction of this, that would be an observation a person could
make. However, he didn't think it was accurate to show that there
was some sort of inconsistency. He said in this case, they are
dealing with prisoners who have been convicted of serious crimes.
"It's a whole different issue than when you're dealing with the
rights of law-abiding Alaskans being limited by action of the
federal government, or you're discriminating against law-abiding
citizens by federal action," he stated, adding that he didn't think
it was a fair comparison as far as going to a federal standard.
SENATOR DONLEY explained, "I don't think our constitution was ever
intended to grant prisoners some unique rights under our
constitution. I think it was intended to say to the state, `When
you run your prisons, you should run them with a principle, a goal,
of reformation, but not to give individual inmates ... the right to
demand specific rights or specific programs to reform them as an
individual. ... It was a principle that became a right for society,
that we as a society want our government to run our prisons that
way, not an individual right for prisoners. And I think ... the
direction of this amendment would be to take it back to that. So,
if, let's say, the state failed to do anything, or failed to have
a reasonable route of programs for reformation, that you could
bring a general action to compel the state to ... be moving to
administer its prisons in that form, but not ... a specific action
by an individual saying, `This is my right to have this specific
program.'"
REPRESENTATIVE BERKOWITZ commented that he was still suspicious of
the (indisc.).
Number 135
CHAIRMAN GREEN said he concurred with Senator Donley. He stated,
"I think you can actually make prisons so attractive that it
certainly is easier to operate, but it becomes so attractive that
... maybe you can't go out on the street, but you get everything
the street has to offer, plus. I think that's the wrong avenue as
well. I think you can err too far in that direction. And maybe
... we're heading in that direction without something like this."
SENATOR DONLEY responded, "I don't think ... we're there. But I do
think that there's a difference between the interests of folks that
run the prisons and the public. The folks that run the prisons are
faced with a very difficult overcrowding situation. Their primary
interest is harmony in the prison, whereas the public has other
interests involved. The public wants reformation. They want
punishment. They want accountability. And I think we have to seek
a happy balance between the two."
Number 147
REPRESENTATIVE ROKEBERG asked Mr. Parker, "In light of the Brandon
case, just refresh my memory, Alaska does not allow conjugal
visits. Is that correct?"
MR. PARKER replied, "That's right. We don't allow that."
REPRESENTATIVE ROKEBERG referred to problems created by Cleary in
terms of due process. He stated his understanding that in order
for any warden or superintendent of a facility to start a
disciplinary action against a prisoner who has created an
infraction within that facility, they must actually go through a
due process procedure before the prisoner ends up "in hard time" or
other forms of "lock-up or lock-downs" that are intended to control
the population within the facility.
REPRESENTATIVE ROKEBERG stated, "And I find it really quite ironic,
and that's the one thing that struck me when I ... first went to
Florence, is that ... the superintendent there was a retired
federal prison administrator. He was scratching his head, says
that, `You know, the Cleary settlement and the due [process]
requirements of the prisoners just completely emasculates the
ability of ... the correction officers and the administration to be
able to mete out any quick and meaningful punishment to a prisoner
when they create an infraction, ... because of this kind of strange
decree that we're (indisc.)." ... I don't think even the average
citizen on the street would believe what the dictates of the due
process requirements in Cleary are. And am I right? Or could you
kind of just explain ....?"
Number 172
SENATOR DONLEY asked, "Is it necessarily Cleary?" He said it was
a case that interpreted the state constitution's due process
clause. He commented, "It was beyond Cleary."
MR. PARKER responded, "Mr. Rokeberg, I want to leave the right
impression with you. An officer can put an inmate in the hole
immediately, if there were a fight or something or found
contraband. They can isolate immediately."
Number 184
REPRESENTATIVE ROKEBERG asked whether "the hole" was solitary
confinement.
MR. PARKER replied, "Yeah, what we call `segregation.' That's when
you're locked down 23 hours a day by yourself. But then he has a
right to what amounts to a speedy trial. He gets a hearing and he
gets to represent himself. And sometimes they have an explanation
that, `Gee, that's right.' Then he's let back in population. Most
times, the disciplinary board (indisc.) or officers back up the
officer that decided that night he should have been in the hole and
that he gets ten days or whatever punishment he gets for it."
REPRESENTATIVE ROKEBERG asked how quickly that hearing must take
place after the prisoner is put in the hole.
MR. PARKER replied, "I should know that; I don't. I think it's
five days, but ... I'm not sure. I'll find out."
SENATOR DONLEY asked whether some other limitations had resulted
from McGinnis v. Stevens regarding who can conduct the hearings.
He indicated his understanding that the officers involved are not
allowed to do that.
MR. PARKER affirmed that. He said there is a disciplinary
committee of three, he believes, not including the officer who
"wrote the guy up." He stated, "Three of the other staff hear the
guy's case. As I said, he gets to, in writing or verbally if he
wants, explain his side of the story. And they decide. As you
might guess, there's sort of a presumption that the officer that
night was doing his best, but the guy gets his ... moment to
explain ... what happened."
Number 196
SENATOR DONLEY stated his understanding that that is unique, also,
that in other prison systems, it is not a requirement.
MR. PARKER commented, "Warden Crandall (ph) from Florence, the
gentleman you were talking about, got his experience as captain of
the guard at Marion (ph), which was the toughest max/max federal
facility of them all. So, I'm sure if you come from Marion to
Florence and find out that Alaskans have the right to explain
themselves before they get hole time, it does seem overbearing."
REPRESENTATIVE ROKEBERG indicated his understanding that after
there was an escape from the Arizona facility, the state modified
the contract and they are now "doing Cleary."
MR. PARKER replied, "That's right. We're `Clearyizing' Arizona as
we speak."
Number 214
THERESA N. OBERMEYER came forward to testify. However, her
comments were unrelated to this legislation.
Number 281
SENATOR DONLEY concluded, "I really take amending the constitution
very seriously. And I appreciate your being willing to have a
hearing in the interim, because it gives us a lot of time to digest
and think about it, where we don't have that kind of time always
during the session. So, I very much appreciate the chair
scheduling this meeting during the interim. And I pledge to work
with you. And I think that this could be a very significant
positive step. It's not a panacea. It's not a big end-all, be-all
thing. But I think it's a very good, positive step in the right
direction."
Number 290
CHAIRMAN GREEN said, "You made a suggestion to Representative
Bunde's question to you that perhaps in your letter of clarity,
your transmittal letter, that there would be language that you
thought should go in here. Would you prefer to do that?"
SENATOR DONLEY advised members he had a draft that he'd been
working on. He said he was continuing to do research. He stated,
"In this draft, I specifically referenced the case that the courts
ruled on, and there's one other case that's actually a federal case
that dealt with Alaska prisoners. And I need to really study that
case and see if the ruling was -- it was a Ninth Circuit case. And
other federal courts hadn't ruled that way. So, I'm not really
sure yet. I need to reread that case and see if it was based on
interpretation of the Alaska constitution or a Ninth Circuit
interpretation of the federal constitution that was different than
the rest of this, the federal courts. ... We may want to include
that on here, if it was a federal court interpreting the Alaska
constitution."
Number 304
CHAIRMAN GREEN requested that Senator Donley have that researched
before they reconvene in January. He asked whether there were
further comments or questions.
REPRESENTATIVE BUNDE asked whether this would be scheduled for a
regular hearing at which they'd hear from any opposition.
CHAIRMAN GREEN said yes, very early on. (SJR 3 was held over.)
ADJOURNMENT
Number 311
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at
10:20 a.m.
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