Legislature(1997 - 1998)
01/22/1997 01:38 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
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SENATE JUDICIARY COMMITTEE January 22, 1997 1:38 p.m. MEMBERS PRESENT Senator Robin Taylor, Chair Senator Drue Pearce, Vice-chair Senator Mike Miller Senator Sean Parnell MEMBERS ABSENT Senator Johnny Ellis COMMITTEE CALENDAR SENATE BILL NO. 1 "An Act relating to living and working conditions of prisoners in correctional facilities operated by the state, and authorizing the commissioner of corrections to negotiate with providers of detention and confinement services under contract to apply those conditions and limitations on services to persons held under authority of state law at facilities operated under contract or agreement; relating to services provided to prisoners; amending the definition of 'severely medically disabled' applicable to prisoners seeking special medical parole; amending provisions of the correctional industries program; and extending the termination date of the Correctional Industries Commission and the program." HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION No previous Senate Committee action. WITNESS REGISTER Senator Dave Donley Alaska State Legislature State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Sponsor of SB 1. James Armstrong Legislative Aide Alaska State Legislature State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Answered questions on SB 1. Frank Sauser Director Division of Institutions Department of Corrections 4500 Diplomacy Dr., Suite 207 Anchorage, AK 99508-5918 POSITION STATEMENT: Supports SB 1. Dean J. Guaneli Chief Assistant Attorney General Department of Law P.O. Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Answered questions on SB 1. Bruce Richards Program Coordinator Commissioner's Office Department of Corrections 240 Main St., Suite 700 Juneau, Alaska 99801 POSITION STATEMENT: Answered questions on SB 1. ACTION NARRATIVE TAPE 97-1, SIDE A Number 00 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:38 p.m. and announced the presence of Senators Pearce, Miller and Parnell. The first order of business before the committee was SB 1. SB 1 "NO FRILLS" PRISON ACT SENATOR DAVE DONLEY , sponsor of the measure, gave the following overview. SB 1 is almost identical to the "No Frills Prison Act" that passed the Senate last session. It contains two additional sections: one section adds a fee (approximately $2) to cover the electricity costs of using personal appliances in cells; and the other section fixes into statute a fee for sick calls. Senator Donley recommended deleting that section because the Department of Corrections (DOC) recently adopted a regulation requiring a sick call fee. SENATOR DONLEY explained SB 1 limits frills that prisoners currently enjoy in our prisons. The limitations contained in SB 1 fall under the community condemnation provision added to the Alaska Constitution in 1994 by voters. SB 1 prohibits premium cable TV in individual prisoners' rooms. To get a private TV in one's room, prisoners would have to: obtain a high school or GED diploma; be actively engaged in an educational, vocational training or employment program; have satisfied all restitution orders entered by the court; participate in treatment or rehabilitation programs ordered by the court; and pay for television and cable service. SENATOR DONLEY described an amendment proposed by DOC which would waive the GED requirement for prisoners who have developmental or other mental disabilities. That waiver was contained in the House version of the "No Frills Prison Act" that passed last session. Those prisoners would have to meet all other requirements and would have to be making an effort to get some type of education or training. Senator Donley believes the privilege of having a private television in a prison cell can be used as an effective incentive to get prisoners to comply with court orders to attend training, treatment or rehabilitation programs. SENATOR DONLEY reviewed other proposed amendments. The first amendment allows compact disc players in prisons but prohibits audio cassette players. Prison guards originally believed compact disc players in prison cells could pose a danger, however that has not been the case. Instead, prisoners have become adept at using audio cassettes and players to smuggle contraband or make other types of tools. Another amendment incorporates a Department of Law (DOL) request to use a more standard definition of pornographic materials. A third amendment shifts some of the costs for terminally ill prisoners from the state to the federal government. Currently, the state is obligated to pay all health care costs of prisoners in the state system. The federal government picks up at least 50 percent of medical costs for other prisoners. Several years ago the legislature made an attempt to give DOC the discretion to furlough terminally ill prisoners who pose no physical danger to anyone so that the federal government would share the medical costs, however because of the way that provision was written, prisoners have to be completely incapacitated to be eligible for furlough. The amendment liberalizes the definition with the intent of including a few more cases per year. Although the incidences of these cases are few, the medical costs are significant. SENATOR DONLEY continued. SB 1 contains a provision to enhance the authority of the DOC to provide vocational training to reduce the recidivism rate by providing prisoners with skills to earn a living without committing crimes. Number 217 SENATOR PEARCE asked how the restrictions in SB 1 would apply to CRC beds in contracted facilities in other states or in a federal facility, if one existed in Alaska. SENATOR DONLEY replied the bill gives the Commissioner the discretion to apply the restrictions to prisons outside the state system. He supports this method because most of these restrictions already exist in the Arizona prison and it allows private institutions to use creative solutions. For example, Alaska prisons must contain an extensive law library under the Cleary decision; the Arizona prison contracts with an attorney to advise prisoners, which is less expensive. Number 245 CHAIRMAN TAYLOR commented Arizona is unique in that all prisons are located in one town, therefore one attorney could provide services to all prisons in that area. He felt DOC could enter into small contracts with attorneys in the communities with prisons to provide legal services. SENATOR DONLEY clarified the Cleary decision specifically requires a law library be provided in prisons in Alaska. CHAIRMAN TAYLOR questioned how the Cleary decision could be revisited. SENATOR DONLEY responded that subject was discussed by the Senate Finance Committee during the DOC overview. One attorney believed a statutory or constitutional change would be necessary, thus creating a condition that was not anticipated at the time of the Cleary decision. The Cleary decision has unusual language in that it prohibits renegotiation unless a substantial change in the subject matter exists. If actual statutes changed, as SB 1 would do, or constitutional questions changed, those changes would be substantial enough to qualify for renegotiation. Number 270 SENATOR PEARCE stated during the DOC overview before the Senate Finance Committee it came to light the Attorney General for the current and previous Governor made a personal decision to not request the Court System to review, and perhaps renegotiate, the Cleary settlement. SENATOR DONLEY pointed out approximately two years ago the Supreme Court addressed the issue of state agreements of this type. The decision set up criteria requiring a substantial change in the subject matter. If there is a substantial change, another state would be allowed to renegotiate the terms. Number 299 SENATOR PARNELL asked whether committee members can request that witnesses return before the committee for later questions. CHAIRMAN TAYLOR responded affirmatively, as long as the request is made in good faith. SENATOR PARNELL asked Senator Donley what prompted him to introduce the bill. SENATOR DONLEY replied he got the idea from a federal bill which contains more draconian restrictions than SB 1. Additionally, media stories have exposed incidental services provided in prisons and created public tension. Over the years, due to budget cutbacks, DOC has attempted to decrease problems with prisoners by being generous when possible. He believed that to be a reasonable course of action by prison administrators who are trying to minimize problems within prisons, however it is not a reasonable course of action from the general public's point of view. SB 1 was designed to strike a balance between the two views. The public resents prisoners receiving services, such as premium cable, in prison, when they cannot afford it themselves. Number 339 SENATOR PARNELL asked who pays for cable television. SENATOR DONLEY noted the state does not pay for premium cable television, but does allow it. He felt the problem is the vast majority of prisoners, other than drug offenders, committed a violent crime. The question becomes whether current prison conditions provide an appropriate punishment for those types of offenses. SENATOR PARNELL agreed a balance needs to be found, but was concerned that the committee make sure to address reality rather than perception. He referred to page 4, lines 12-17, which prohibits prisoners from engaging in boxing, wrestling, judo, karate, or other martial arts, and bodybuilding, and questioned Senator Donley's opposition to prisoners doing push-ups as a bodybuilding exercise. SENATOR DONLEY responded he has offered a proposal to the committee to delete the bodybuilding reference in the bill. His main concern is that martial arts activities in prisons are not used to foster self confidence and self esteem, but are used to improve one's predatory abilities. Number 367 SENATOR PARNELL asked Senator Donley whether he also planned to propose the removal of the prohibition on free weights. SENATOR DONLEY felt free weights should be banned because they can be used as weapons, but stationary exercise equipment should be permitted. SENATOR PARNELL questioned the need to ban coffee pots and other cooking appliances in cells. SENATOR DONLEY responded those appliances pose a danger when used in confined areas, and prisoners tend to find other creative uses for those appliances. Once prisoners have such appliances, it is difficult to remove them through any method other than the statutory process. SENATOR PARNELL referred to page 5, line 3, which allows the Commissioner to prohibit a maximum custody prisoner to have a television in his/her cell, and asked what types of offenders are in maximum custody. SENATOR DONLEY answered the prison system has three levels of custody: minimum, medium, and maximum security. A prisoner who was incarcerated for a relatively minor offense can be transferred to a higher level of security if that prisoner has hurt other prisoners or has tried to escape. The security level is not always based on the original offense, but on the perceived risk the prisoner presents. Number 400 SENATOR PARNELL asked whether maximum custody prisoners circulate among prisoners at other security levels. SENATOR DONLEY replied they do circulate among other security level prisoners in common areas, which is where entertainment facilities are located. SENATOR PARNELL asked whether Senator Donley planned to remove the fee for medical services. SENATOR DONLEY replied affirmatively, because the DOC regulation was well crafted. Number 420 CHAIRMAN TAYLOR discussed a different approach used by the warden of an Arizona prison. The warden purchased, under court order, three television sets for prisoners and three videos of classic stories. A federal judge then required the prison to provide live television, therefore the warden allowed prisoners to watch the news, an educational channel, and the Phoenix City Council televised meetings. The warden also banned cigarettes and coffee. He asked why Alaska does not impose similar restrictions on coffee and tobacco products, and the types of television programs made available. SENATOR DONLEY clarified SB 1 bans the use of tobacco products. DOC has banned tobacco in eight facilities and is moving toward a ban in all facilities. At least two states that have imposed a tobacco ban have had positive results. The State of Georgia banned tobacco products but lifted the ban because of difficulties. SB 1 gives DOC a couple of years to implement the ban. Because the state is responsible for prisoners' medical costs, it is difficult to justify the use of harmful products. CHAIRMAN TAYLOR asked about the cable television policy. SENATOR DONLEY stated the policy varies by institution and referred to a chart of services available in each prison provided by DOC. Where premium cable is available, prisoners pool their money to pay for it. Number 477 SENATOR PARNELL questioned whether banning tobacco products would encourage corruption among prison guards. SENATOR DONLEY confirmed the deputy commissioner of the Texas prison system reported 11 disciplinary problems with guards at the outset of the ban on tobacco products in Texas prisons, however after disciplinary action was taken, the problem was resolved. He was unsure why the response was different in the State of Georgia. CHAIRMAN TAYLOR questioned why Senator Donley was now in support of the bodybuilding provision. SENATOR DONLEY indicated the goal is not to prevent people from maintaining health, but to prevent them from using prison time to become more dangerous individuals. MR. FRANK SAUSER , Director of the Division of Institutions, DOC, testified in support of the proposed amendments. He requested the bill allow prisoners who are actively seeking a GED, or who are actively engaged in making restitution payments, to possess a television in individual cells. Many prisoners are required to make restitution after release, not while incarcerated; this provision would provide a powerful incentive to get prisoners to make voluntary payments while incarcerated. In addition, he requested the same provisions apply to those prisoners incapable of obtaining a GED, listed in lines 4-12 on page 6. Mr. Sauser invited committee members to tour the local prison facility (Lemon Creek) or other state facilities, as convenient. Number 544 SENATOR PARNELL asked Mr. Sauser to provide committee members with a description of conditions at Highland Mountain. MR. SAUSER stated Highland Mountain houses approximately 230-235 men, and 60- 65 women. He estimated there are televisions and computers in 10 percent of the cells, but that percentage is quite a bit higher than in other facilities. Some facilities have cells with no electrical outlets, some are designed for short term holding of prisoners, while others are designed for long term holding. He discussed the philosophy of controlling the behavior of short term prisoners with the incentive of early release, and controlling the behavior of long term prisoners with the incentive of obtaining privileges. In response to Senator Parnell's inquiry, Mr. Sauser stated DOC generally supports SB 1, but deferred the definition of Section 4(2)(A) to the Department of Law. Number 582 CHAIRMAN TAYLOR questioned whether Section 4(2)(A) changes the standard upon which decisions about conditions are made from the standards set out in the Cleary decision to the standards set out in the state and federal constitutions. MR. SAUSER was unsure. TAPE 97-2, SIDE B Number 000 SENATOR PARNELL asked whether any legal problems exist regarding the provision that gives the Commissioner the discretion to apply the same restrictions to prisoners in out-of-state facilities. DEAN GUANELI , Assistant Attorney General, Department of Law, felt that question would fall under the Equal Protection Clause, and the answer would depend on the terms of the contract with the out-of- state facility and the comparison of conditions at out-of-state and in-state facilities. It is possible the state would be in violation if the Commissioner applied all of the restrictions to in-state facilities, and none to out-of-state facilities. The question would lie in how that provision is implemented and whether it is done in a reasonable manner. In the case of in-state halfway houses, which the restrictions in SB 1 would not apply to, the class of prisoners is different: those prisoners are in halfway houses because they are closer to their release dates and can be trusted with a greater level of freedom and "frills." Number 560 CHAIRMAN TAYLOR moved the adoption of amendment #1, (0-LS0024\H.4). SENATOR PEARCE objected for the purpose of discussion and questioned whether prisoners with idle time would find ways to use compact disc players to make weapons if they do so with audio cassette players. SENATOR DONLEY stated he would prefer to ban both. He explained prisoners used the components of audio cassette players to make tattoo guns. DOC believes the audio cassette players and cassettes are the bigger hazard at this time because of their smuggling capability. Number 535 CHAIRMAN TAYLOR asked if there was further objection to the motion to adopt amendment #1. There being no objection, the motion carried. CHAIRMAN TAYLOR questioned why amendment #2 (0-LS0024\H.4) changes the effective date of the bill to two years after passage, moved adoption of amendment #2, and noted objection. SENATOR DONLEY indicated in an attempt to avoid retaliation, SB 1 gives DOC the ability to phase in the changes gradually. SB 1 provides DOC with a statutory deadline to implement the restrictions and minimizes prisoner wrath toward DOC and prison guards by making the restrictions a statutory requirement. CHAIRMAN TAYLOR noted there was no further objection to amendment CHAIRMAN TAYLOR moved adoption of amendment #3 (0-LS0024\H.2) which deletes the restriction on bodybuilding. There being no objection to the motion, amendment #3 was adopted. CHAIRMAN TAYLOR moved adoption of amendment #4 (0-LS0024\H.1). SENATOR DONLEY explained this amendment removes the statutory requirement for medical fees since DOC has adopted a similar regulation. There was no objection to amendment #4, therefore it was adopted. CHAIRMAN TAYLOR moved adoption of amendment #5 (page 4, line 26, after "employment" insert ",education"). SENATOR DONLEY reiterated amendment #5 applies to the appropriate utilization of computers outside individual cells. Several facilities have computer labs for training purposes. DOC has requested the word "education" be specified in statute. There being no objection to the motion, amendment #5, was adopted. CHAIRMAN TAYLOR inquired whether any computers in individual cells have modems so that prisoners can obtain access to e-mail and the internet. SENATOR DONLEY did not believe any modems were allowed in Alaska prisons, and noted federal prisons allowed modems at one time but have since banned all computers because the program was a disaster. MR. SAUSER confirmed no modems are allowed to prisoners in Alaska. Number 490 CHAIRMAN TAYLOR moved to adopt amendment #6 (0-LS0024\H.6). JERRY LUCKHAUPT , legislative counsel, Division of Legal Services, informed committee members of an inadvertent omission in amendment the end of the amendment: Page 4, line 12: Delete "or printed". He explained the amendment already contains all necessary references to printed material. There being no further questions from committee members, CHAIRMAN TAYLOR moved adoption of amendment #6 as amended. There being no objection, the motion carried. Number 450 SENATOR DONLEY asked James Armstrong, legislative aide, to present amendment #7 to committee members. MR. ARMSTRONG explained amendment #7 deletes lines 4-5 on page 4, because those lines conflict with Section 9 of the bill. SENATOR DONLEY stated Section 9 of the bill was added by the Senate Finance Committee last session. It is a more extensive way to deal with the problem of prisoner phone calls. When that section was added, the reference on lines 4-5 of page 4 inadvertently remained in the bill. CHAIRMAN TAYLOR moved to delete lines 4-5 on page 4 and reletter the sequential subsections. There being no objection to the motion, amendment #7 was adopted. Number 432 CHAIRMAN TAYLOR announced his intention to hold SB 1 in committee until a committee substitute is prepared, and to take action on the legislation at that time. MR. ARMSTRONG discussed the DOC fiscal note which reflects a cost of $725,000. Amendment #7 eliminates the need for $705,000 of that cost. SENATOR DONLEY commented the cost saving is due to the fact DOC can conduct random monitoring rather than full-time monitoring of all phone calls. CHAIRMAN TAYLOR asked how the attorney-client privilege is handled under random phone monitoring. MR. SAUSER explained at present Spring Creek is the only facility with phone monitoring capabilities. A separate private phone line is provided for attorney-client phone calls. He noted the cost of $705,000 was an estimate to purchase a phone monitoring system for all facilities. CHAIRMAN TAYLOR expressed concern that phone monitoring does not occur at any facility other than Spring Creek, and questioned why the cost of monitoring would be so high. MR. SAUSER responded DOC has attempted, over the last several years, to obtain a contract with a phone company in which the company would provide the services free of charge in return for the revenues generated by the phone calls. The difficulty has been with the regulatory agencies who are unable to keep up with the rapid changes in communications technology. Other states are experiencing similar problems, and in some instances, regulatory agencies have shut down existing monitoring systems that are inadequate. CHAIRMAN TAYLOR referred to the pipe bomb incidence in which prisoners used phones to relay instructions, and emphasized the need for monitoring. SENATOR DONLEY stated prison officials in Arizona actually place phone calls for prisoners to attorneys. Number 364 SENATOR PEARCE asked whether the presence of a prison guard in a room with a prisoner when the prisoner places a call would be considered monitoring. SENATOR DONLEY replied the Cleary decision specifically prohibits a guard from being present during an attorney-client phone call. In Arizona, once the guard places the call, he/she leaves the room. SENATOR PEARCE commented she has received numerous phone messages from prisoners on voice mail. MR. SAUSER noted prisoners are not allowed to make long distance phone calls. DOC owns the phone system at Spring Creek, but the phone systems in other prisons are owned by different companies. At most facilities, prison officials can tell when a phone line is live, and when the conversation is over. When DOC establishes that a prisoner is abusing phone privileges, a prison official places all phone calls for that prisoner. Number 323 CHAIRMAN TAYLOR asked how prisoners get access to telephones. MR. SAUSER said the phones are in day rooms and common areas accessible to prisoners. CHAIRMAN TAYLOR questioned how many lines are available to prisoners. MR. SAUSER responded there are generally two lines in each dormitory. CHAIRMAN TAYLOR expressed concern that DOC does not know when phones are being misused until a member of the public who is being harassed contacts DOC. BRUCE RICHARDS , program coordinator, DOC, described the phone system DOC hopes to purchase. It is a computerized system which can be programmed to contain the phone numbers prisoners can call and record those calls, and attorney phone numbers, that would not be recorded. Calls to numbers not in the computer would be terminated by the computer. Such a system would minimize staff time for monitoring. The cost of $705,000 was provided by one vendor, however if that vendor provided such a system for all state prisons, the cost would decrease to $575,000. CHAIRMAN TAYLOR added there would be incidental costs for tapes and to have the tapes checked occasionally. He expressed concern about the conspiratorial opportunities available to prisoners through open access to telephones. Number 256 SENATOR PEARCE asked whether prisoners can make long distance phone calls to family members who live elsewhere. MR. SAUSER believed those situations were dealt with on a case-by-case basis. She questioned whether any of the private phone companies in the state would be willing to participate if a surcharge was placed on local calls, similar to a pay phone, however she questioned whether a company would be willing to terminate or tape calls. MR. SAUSER stated one of the phone companies DOC deals with will tell prison officials the number called and the length of the call. At Spring Creek, the phone carrier will actually record calls. CHAIRMAN TAYLOR suggested removing the phones altogether, except for one secure line for attorney-client calls, and allowing an occasional phone call, placed by a guard, for good behavior. SENATOR DONLEY noted SB 1 does not mandate DOC to monitor all phone calls. CHAIRMAN TAYLOR reiterated his intention to bring the committee substitute before the committee Friday or Monday, and adjourned the meeting at 3:00 p.m.
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