Legislature(1997 - 1998)
02/19/1997 01:54 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE
February 19, 1997
1:54 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator Drue Pearce, Vice-chair
Senator Mike Miller
Senator Sean Parnell
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SENATE BILL NO. 24
"An Act relating to a requirement that a parent, guardian, or
custodian consent before certain minors receive an abortion;
establishing a judicial bypass procedure by which a minor may
petition a court for authorization to consent to an abortion
without consent of a parent, guardian, or custodian; amending the
definition of 'abortion'; and amending Rules 40 and 79, Alaska
Rules of Civil Procedure; Rules 204, 210, 212, 213, 508, and 512.5,
Alaska Rules of Appellate Procedure; and Rule 9, Alaska
Administrative Rules."
MOVED CSSB 24(JUD) OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 3
Proposing an amendment to the Constitution of the State of Alaska
limiting the rights of prisoners to those required under the
Constitution of the United States.
ADOPTED CSSJR 3(JUD)
SPONSOR SUBSTITUTE FOR SENATE JOINT RESOLUTION NO. 10
Proposing amendments to the Constitution of the State of Alaska
relating to the election and the duties of the attorney general.
HEARD AND HELD
SENATE BILL NO. 19
"An Act repealing the power and duty of the commissioner of fish
and game to assist in the enforcement of federal laws relating to
fish and game."
MOVED SB 19 OUT OF COMMITTEE
PREVIOUS SENATE COMMITTEE ACTION
SB 24 - See Senate Health, Education & Social Services Committee
minutes dated 1/29/96, 1/31/96 and 2/3/97.
See Senate Judiciary minutes dated 2/12/97.
SJR 3 - See Senate Judiciary minutes dated 2/5/97.
SJR 10 - No previous Senate committee action.
SB 19 - See Resources minutes dated 2/5/97.
See Judiciary minutes dated 2/19/97.
WITNESS REGISTER
Michael Pauley, Staff
Alaska State Legislature
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified for the sponsor of SB 24.
Judith Koehler
Americans United for Life
343 South Deerborn St., Suite 1804
Chicago, IL 60604
POSITION STATEMENT: Testified in support of SB 24.
Senator Loren Leman
Alaska State Legislature
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of SB 24.
Senator Dave Donley
Alaska State Legislature
Juneau, Alaska 99801-1182
POSITION STATEMENT: Sponsor of SJR 3.
Bruce Richards
Department of Corrections
240 Main St., Ste. 700
Juneau, AK 99801
POSITION STATEMENT: Commented on SJR 3.
Tuckerman Babcock, Staff
Alaska State Legislature
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified for the sponsor of SJR 10.
Josephine Hardy, Staff
Alaska State Legislature
Juneau, Alaska 99801-1182
POSITION STATEMENT: Testified for the sponsor of SB 19.
ACTION NARRATIVE
TAPE 97-9, SIDE A
Number 000
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:54 p.m. Present were Senators Miller, Pearce and
Taylor. The first item of business before the committee was SB 24.
SB 24 PARENTAL CONSENT BEFORE MINOR'S ABORTION
CHAIRMAN TAYLOR announced the committee previously held an
extensive hearing on SB 24 and delayed passage of the bill from
committee until additional information sought by the sponsor and
committee members was received. The committee packets contain the
information requested, as well as numerous letters from members of
the public.
MIKE PAULEY , staff to Senator Leman, sponsor of SB 24, discussed
three changes made to the proposed committee substitute (0-
LS0210\E). On page 2, line 25, language was added to correct a
drafting oversight; on page 7, line 22, a new subsection (n)
mandates the court system to make available judicial bypass forms
and information at all official locations within the State; and the
word "woman" was replaced with "minor" throughout the bill as the
word "woman" could be perceived to mean an adult female. Mr.
Pauley distributed a map that contained the official locations of
superior courts, district courts, and magistrates in the State.
CHAIRMAN TAYLOR noted the term "woman" could still be found in some
areas of the proposed committee substitute. MR. PAULEY explained
that word was retained throughout the bill if it was modified by
qualifiers, such as an unmarried, unemancipated woman under 18
years of age.
SENATOR MILLER moved to adopt CSSB 24(Jud)(0LS0210\E) as the
working document before the committee. There being no objection,
the motion carried.
JUDITH KOEHLER , Senior Legislative Counsel for Americans United for
Life (AUL), testified. AUL has been involved in virtually all
abortion litigation in the U.S. Supreme Court since, and including,
Roe v. Wade in 1972. She has been involved with the 50 states in
passing legislation and in litigation through the court decision
process. She addressed the federal and state constitutionality of
SB 24 and answered specific questions previously raised in House
and Senate committee hearings.
SB 24 is derived from three U.S. Supreme Court cases: in Hodgeson
v. Minnesota, the Court found a two-parent notice law
constitutional in 1990; in Ohio v. Akron, the Court affirmed the
constitutionality of a one-parent notice bill; and in Casey v.
Planned Parenthood in 1992, the Court affirmed a one-parent consent
bill. These bills were affirmed out of the Supreme Court's
recognition of a state's interest in protecting the health and
safety of its minor children, protecting parental involvement in
the upbringing of their minor children, and in fostering family
unity. SB 24 is consistent with all of the provisions of the
Hodgeson, Ohio, and Casey litigation. It includes a judicial
bypass that can be found constitutional under that case law; and it
includes the provisions that require timely, expedited procedures,
and confidentiality for that minor. Because SB 24 is consistent
with those provisions, it can be successfully litigated at the
federal level.
With respect to the Alaska Constitution, Ms. Koehler stated 34
states have either parental consent or notice laws. Only Florida's
state law has been struck on privacy grounds. California's
parental consent law has been upheld over a state privacy ground
challenge; however, that law is still being litigated. Alaska's
Supreme Court has never applied the privacy provision in its
Constitution to a state abortion law and has made no decision that
creates a state constitutional right to abortion. In fact, Alaska
also protects parental rights in its Constitution. Ms. Koehler
believes SB 24 can be successfully litigated in both federal and
state courts.
Ms. Koehler provided statistics from five states on teen abortion,
pregnancy, and delivery rates before and after parental involvement
laws went into effect. Her conclusion, with respect to parental
involvement laws, is that those laws effectively changed teenage
behavior.
In response to testimony by a witness from the Center of
Reproductive Law and Policy who said the medical emergency
exception in SB 24 is "impermissibly narrow under longstanding
federal constitutional precedents," Ms. Koehler stated that is
simply not so. In 1992 the U.S. Supreme Court affirmed, in Planned
Parenthood v. Casey, a parental consent law in the State of
Pennsylvania contained an adequate medical emergency exception.
That same provision is contained in SB 24. The judicial bypass
procedure in SB 24 is consistent with parental involvement laws in
the Minnesota, Ohio and Pennsylvania cases.
With respect to the standard of evidence to be used by a judge in
the judicial bypass procedure contained in SB 24, Ms. Koehler noted
the clear and convincing evidence standard is included in the Ohio
law, which was successfully litigated.
Ms. Koehler addressed the issue raised by the National Association
of Social Workers (NASW) that second trimester abortions among
minors are likely to increase with passage of SB 24. While the
total number of abortions performed on minors decreased after
parental involvement laws were enacted, the number of second
trimester abortions remained constant, so that number became
proportionally larger. The same argument was used in the
Mississippi legislative debate and the statistics did not bear out.
Ms. Koehler disputed claims that physicians do not support parental
involvement laws. An amicus brief was filed on behalf of the
American Association of Physicians and Surgeons in support of the
Minnesota law when it was successfully litigated in 1990. That
organization is the largest association of private practicing
physicians in the U.S., composed of physicians from every state and
territory. They are interested, and understand the importance of,
involving parents in the medical treatment of minors, particularly
in the provision of surgical procedures.
Ms. Koehler concluded by saying SB 24, if passed and signed by the
Governor, can be successfully litigated and will support the
state's interest in preserving a minor's health, parental rights,
and fostering family unity.
Number 327
SENATOR LEMAN , sponsor of SB 24, responded to comments made by
previous witnesses in order to establish a clear record based on
facts.
The first topic is the effect of parental consent laws on
teenage pregnancy. Last week a witness from the Alaska
Women's Lobby claimed that SB 24 will not reduce the rate of
teenage pregnancy, however he offered no evidence to
substantiate his argument. I point out the experience of
other states and Ms. Koehler did comment on this, and this
information was provided quickly but is probably worth
repeating.
When Minnesota's parental notice law was in effect from 1981
to 1986, the pregnancy rate for teens age 17 and under
declined 20 percent. In addition, the pregnancy rate for
teens age 18 and 19 declined by 25.4 percent during the same
time period. However, the pregnancy rates in both categories
substantially increased between 1975 and 1980, the five year
period immediately preceding the enactment of their law.
The source of this data is the Minnesota Department of Health.
this data was analyzed in a 1991 article in the American
Journal of Public Health. The authors concluded (and I
quote):
"These data suggest that parental notification
facilitated pregnancy avoidance in 15-17 year old Minnesota
women. Abortion rates declined unexpectedly while birth rates
continued to decline in accordance with a long-term trend."
The next state is Massachusetts. A study of the parental
consent law in Massachusetts shows that the teen pregnancy
rate declined nearly 17 percent during the first 20 months the
statute was in effect. This study was also published in the
American Journal of Public Health, in 1986. I don't have
photocopies of that article with me, but we are trying to
track down one of good enough quality to make available to the
committee.
The third state's experience is Nebraska. To my knowledge
there has not been a comprehensive study by social scientists
on the effects of the Nebraska parental involvement statute
which was approved in 1991. However, we do have some data
available from the Nebraska Department of Health. There,
statistics show that the number of abortions for minors
decreased after enactment of the law. At the same time,
however, the number of births in Nebraska declined after the
law's passage, whereas in the four years before passage, the
number of live births increased.
So, we see a decrease in teenage abortions in Nebraska after
passage of their law, but there is no corresponding increase
in live births. This suggests that the real effect is a
reduction in the teen pregnancy rates and that is something I
believe all who have testified and those on the committee have
agreed is common ground.
Mr. Chairman, I have the raw data here from the Nebraska
Department of Health, which you are free to review and draw
your own conclusions. I certainly have drawn mine.
The next topic that I want to address is the health effects of
abortion. We've already heard a number of people testify
about this, and several witnesses, including Dr. Peter
Nakamura, who was with us for the hearing in the HESS
Committee and the first hearing of the Judiciary Committee,
claimed that abortion is a very safe procedure and that
carrying a baby to term is actually more dangerous. Mr.
Chairman, I'm not a research scientist, nor is Dr. Nakamura I
might add, but I am aware of many studies on the health risks
of abortion and I have read them. I read several of these and
produced a synopsis of some of these studies which I'll also
leave with you. These studies were published in the American
Journal of Public Health, the Journal of the American Medical
Association, and other reputable periodicals.
Some of the more typical complications from abortion include
infections, hemorrhage, ripping or perforation of the uterus,
anesthesia complications, cervical injury, and death. I note
that even Dr. Nakamura agreed, when he said that it is common
ground that abortion is not safe. There are risks involved
with it. The fact that these complications may be rare is of
little consolation to the parents of a child who has been
victimized in this way. There are many case studies but I
will cite one: In 1985 a 13 year old girl in Queens, N.Y.,
Dawn Ravenell, died as a result of complications from a legal
abortion. Her parents were not informed that their daughter
was pregnant nor that she was going to undergo an abortion,
because New York has no parental involvement law. Dawn's
parents filed a lawsuit and were awarded more than $1.2
million. [Source: New York Daily News and New York Post, Dec.
11, 1990.]
Let me suggest to the committee that the relative risks of
abortion versus childbirth is really an irrelevant question,
regarding this legislation. Let me explain. The data I have
just presented to the committee indicate that parental
involvement laws cause a decrease in both abortions and live
births because it causes a reduction in teen pregnancy. It
really doesn't make much of a difference who wins the debate
about which is safer. Let us agree that there is some health
risk involved in both teen abortion and teen childbirth. This
bill will cause reductions in both. From a public health
standpoint this bill makes good sense. I'm disappointed that
this Administration is opposing it. In my mind, Governor
Knowles and Dr. Nakamura, the director of the Division of
Public Health, should be leading cheerleaders for this effort.
They should be joining the nearly 80 percent of Alaskans who
support parental involvement regarding abortion decisions for
minor girls.
I want to touch on the topic of a breast cancer link. I think
it's important to do this because last week Dr. Nakamura cited
a study, and then he said, "and I hope we finally put this to
rest." Well, we haven't put it to rest with such a casual
treatment as he gave it, and I wouldn't want this committee to
in any way, derive that type of information from his
testimony. Dr. Nakamura cited a recent study from Denmark to
justify his conclusion.
As I previously told you, I'm not a research scientist,
although I've research some areas of engineering, but not in
medicine. I'm going to limit my remarks to quoting someone
who is. Dr. Joel Brind is a Professor of Endocrinology at the
Department of Natural Sciences at Baruch College, City
University of New York. Dr. Brind is one of the leading
researchers in this area. Last October Dr. Brind published a
comprehensive review and "meta-analysis" of 23 different
studies on breast cancer and abortion.
Dr. Brind has stated that the methodology of the Danish study
on abortion, which Dr. Nakamura quoted and cited, and breast
cancer is highly flawed. I have a five page critique of the
Danish study that Dr. Brind prepared, and I would like to
submit it also to committee members as part of the record.
I'll also point out that since 1957, there have been at least
30 studies done on the issue of an abortion-breast cancer
link. Of these studies, 24 have shown an increased risk of
breast cancer among women who have had abortions, as opposed
to only six that do not show the increased risk.
One of the more notable studies on the abortion-breast cancer
link was performed not far away from here at Seattle's Fred
Hutchinson Cancer Research Center. This study was conducted
by Dr. Janet Daling and 3 other scientists in Washington. I
also have copies of that study for your perusal.
And Mr. Chairman while the breast cancer-abortion link is not
something that I believe is foundational to whether the
enforcement of parental consent is proper for the State of
Alaska, I also believe it is important that we not take
testimony that is flawed and accepted as fact in the public
record.
The next topic that I wish to address is the opinion of health
professionals in groups regarding parental consent/parental
involvement statutes. There has been considerable discussion
about how the medical community views this bill. Critics of
the bill and the enforcement of parental consent laws have
represented to this committee that medical professionals are
largely opposed to parental consent for abortion. I've had
several doctors contact me, and based on that testimony, and
what I've heard, I do not believe this is true. I believe
there are medical professionals who do oppose it and we've
heard from some, and we heard from some last year when we were
debating SB 105.
I think it's fair to say that society as a whole is deeply
divided on the issue of abortion and probably because of that
there is carryover that muddies the thinking of some people
when it comes to a topic that, in my opinion, can be as clear
as parental consent for minors. But neither the judiciary or
the medical community is immune from these divisions on the
topic of abortion. Critics have represented that the American
Medical Association opposes parental consent. I'll point out
that many medical professionals have arrived at a different
conclusion. When the Supreme Court reviewed Minnesota's
parental consent law, one of the most effective defenders of
the law was the Association of American Physicians and
Surgeons, and that was cited in Ms. Koehler's testimony
earlier. This is the largest association of private
practicing physicians in the United States. This group
submitted an amicus brief defending the State's law. The main
theme of their brief centered on the effectiveness of the
Minnesota law in reducing teenage pregnancies and as I
commented earlier, that is a public health goal we can all
endorse. I have copies of their brief. It contains charts
and graphs that demonstrate the effectiveness of the Minnesota
law and we will distribute that also to you.
Closer to home, I have received letters from several Alaska
doctors who strongly support SB 24. One of these doctors is
an obstetrician/gynecologist. I would like to present all of
these letters that we have received, at least through this
time today, for the Committee's review.
At last week's hearing, Senator Parnell touched on the fact
that there is an economic interest at play in the abortion
controversy. Abortion has regrettably become one of the most
common surgical procedures in the United States. It is
estimated, including by sources from those within the abortion
community themselves, using their own statistics, that more
than 35 million abortions have been performed in the United
States alone since 1973. Bear in mind that some of the
testimony we've heard comes from medical professionals who
would be adversely affected economically by the passage of
this bill.
One final point - at last week's hearing Dr. Nakamura told the
Committee that he had a list of, as he said, better than 40
health-related organizations, to use his terms, which oppose
parental consent before abortion. With all due respect to Dr.
Nakamura, I suggest he is guilty of some exaggeration,
probably not unlike many others in this Capitol. But perhaps
his is unintentional. About half of the 42 groups on his list
cannot be fairly described as health professional
organizations. They include such organizations as the
American Civil Liberties Union, the National Organization for
Women, Zero Population Growth, People for the American Way,
Voters for Choice. I could comment on what I think of some of
those organizations but I'll refrain. I'll just suggest that
they are not organizations that I would call health
professional organizations. I have a copy of the list, by the
way, we got it from Dr. Nakamura and I'll make that available
to you.
More importantly, the list Dr. Nakamura provided does not
specifically pertain to the issue of parental consent for
abortion. The organizations are listed under a statement
which reads as follows: "The undersigned organizations OPPOSE
mandatory parental consent or notification requirements for
teens" - and get this - "receiving services at Title X-funded
family planning clinics." The reference is to an attempt made
by Congressman Ernest Istook, who is from Oklahoma, to amend
the Title X family planning program to require parental
consent before services are provided to minors. The effort
failed in committee but that is largely irrelevant to the
issue of abortion consent because abortions are not performed
in Title X clinics, and therefore would have been unaffected
by Representative Istook's amendment. To be sure, many of
these organizations, especially groups like Voters for Choice,
are probably also opposed to parental consent before abortion.
But that's not what this list is all about. I believe we have
a duty to be accurate in our representations.
The next topic is the federal constitutionality of SB 24.
Last week several witnesses claimed that the bill, as written,
would not withstand a constitutional challenge in the federal
courts. Let me suggest that precisely the opposite is true,
and Ms. Koehler spoke to that far more eloquently than I
could. SB 24 was carefully modelled to conform with other
states' statutes that have been tested by the U.S. Supreme
Court and found to be constitutional. In fact, the whole
purpose of this bill is to add the judicial bypass - the
procedure the Supreme Court has said we must have - if our
state's parental consent statute is to be enforced. I'd
remind you that is existing state law, in statute, except for
the bypass. This makes it enforceable.
There have been 8 Supreme Court decisions that have upheld the
validity of parental involvement statutes. The most recent
was Planned Parenthood v. Casey in 1992. I quote from the
concurring opinion of Chief Justice Rehnquist in that case:
"We think it beyond dispute that a State has a strong and
legitimate interest in the welfare of its young citizens,
whose immaturity, inexperience, and lack of judgment may
sometimes impair their ability to exercise their rights
wisely. A requirement of parental consent to abortion, like
myriad other restrictions placed upon minors in other
contexts, is reasonably designed to further this important and
legitimate state interest."
I'll comment briefly on the state constitutionality of SB 24.
Other objections raised suggest that SB 24 will not withstand
a state constitutional challenge because of the "right to
privacy" clause in our State's Constitution. Critics have
pointed out that the Florida Supreme Court struck down that
state's parental involvement law on privacy grounds. However,
let me point out that California also has a privacy clause,
similar to Alaska's, and in April of last year the California
Supreme Court upheld the California statute. A review has
been granted in that case, though the issue is not completely
settled, as Ms. Koehler also testified to, and of course we do
not know what the Alaska Supreme Court will do. We can only
guess, but my hope is that they will employ the same reasoning
the justices in California used if they have an opportunity to
review this.
Let me quote to the committee the conclusion of the California
court:
"We conclude that the judicial bypass is minimally
intrusive: it is speedy, informal, and confidential. There is
no substantial evidence supporting the trial court's finding
that requiring an unemancipated minor to appear before a
juvenile court judge for an expedited, informal hearing on
these important questions -- even if somewhat intimidating --
poses a gratuitous threat to the physical or emotional well-
being or either a mature or an immature unemancipated minor."
And that, Mr. Chairman, concludes my testimony in response to
that offered by others. I commend this legislation to you.
I believe it represents common ground, if ever there is common
ground on the issue that even touches on abortion, it would be
in the area of parental consent. I believe that it is timely
for us to have a law, not only on the books, but one that is
enforceable and enforced. The result of that, I believe in
the State of Alaska, will be the saving of lives, will be the
protection of children and the protection of our families. I
commend it to you and suggest you report the bill as quickly
as possible.
CHAIRMAN TAYLOR informed committee members Dr. Nakamura was
attending a meeting and would not be available to testify.
SENATOR MILLER moved CSSB 24(JUD) out of committee with individual
recommendations and all accompanying fiscal notes. SENATOR ELLIS
objected. The motion carried with Senators Miller, Parnell, and
Taylor voting in favor, and Senator Ellis opposed.
SJR 3 PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS
SENATOR DAVE DONLEY , sponsor of SJR 3, discussed changes made to a
proposed committee substitute. CSSJR 3(JUD) was broadened to
encompass all rights currently provided to prisoners in Alaska.
Traditionally, prisoners rights in the U.S. have stemmed from the
federal cruel and unusual punishment clause. Under the Alaska
Constitution, Alaska courts might extend due process clause rights
to prisoners. CSSJR 3(JUD) now reads, "The rights and protections
and the extent of those rights and protections afforded to
prisoners by this constitution shall be limited to those rights and
protections and the extent of those rights and protections afforded
to prisoners under the Constitution of the United States" to
encompass Alaska's due process rights that have been interpreted
differently from those under the U.S. Constitution.
TAPE 97-9, SIDE B
Number 568
SENATOR PARNELL asked what other prisoners' rights might change
under CSSJR 3(JUD). SENATOR DONLEY replied Alaska is required to
provide and maintain a law library and photocopier, among other
specific things, according to the Cleary settlement. The federal
Constitution allows for less expensive, alternative means to
guarantee prisoners access to the courts and other areas. Under
CSSJR 3 (JUD), Alaska would still have to provide the means to
legal access approved by federal courts, but would not have to
maintain an updated law library in every institution. Another
distinguishable feature of prisoners' rights is the provision of
rehabilitation programs, mandated by the Alaska Constitution.
SENATOR PARNELL moved to adopt CSSJR 3 (0-LSO268\E) as the working
draft of the committee. There being no objection, CSSJR 3 was
adopted.
SENATOR PARNELL asked Senator Donley to elaborate on the purpose of
SJR 3, because he finds it ironic that Alaska would want to be
subject to the federal Constitution instead of our own state's
Constitution. He noted he is troubled by the implications of
taking this action related to other federal issues, such as the
state sovereignty issue.
SENATOR DONLEY replied there are two reasons. Alaska's
Constitution provides its citizens with more individual rights than
those under the U.S. Constitution. We think of those rights as
applying to law-abiding citizens in the general population. When
those rights are extended into the prison system they create a
different standard than that provided under the federal
constitution. While Alaska courts may interpret the Alaska
Constitution to extend those individual rights to prisoners, that
extension may not be the wisest public policy. Second, the Cleary
settlement can only be revisited if significant changes occur. SJR
3 would create a significant enough change to allow renegotiation.
Number 437
SENATOR PARNELL asked if SJR 3 would apply only to convicted, and
not pre-trial, prisoners. SENATOR DONLEY said the federal standard
prohibiting cruel and unusual punishment only applies to people who
have been convicted and incarcerated but Alaska Courts could extend
due process rights to those prisoners as well. His intent, when
drafting SJR 3, was that it only apply to people who have been
convicted and incarcerated. He was unsure whether Alaska has any
distinct rights for pre-trial prisoners separate from federal
constitutional rights.
SENATOR PARNELL noted Alaska's right against self incrimination is
much broader than the federal right; the Legislature passed a
discovery bill during the previous session in an attempt to get the
Supreme Court to narrow the scope. SENATOR DONLEY believed that is
not an element of one's incarceration, but is a separate issue.
Number 409
SENATOR PARNELL suggested including a definition of "prisoners" in
the resolution to clarify it applies to convicted prisoners, not
pre-trial prisoners. SENATOR DONLEY believed the court would have
difficulty applying it to anyone other than prisoners who are
incarcerated after conviction because otherwise there would be a
dual system of rules for pre-trial prisoners: those who could make
bail, and those who could not.
BRUCE RICHARDS , Special Assistant to the Commissioner at the
Department of Corrections, did not state a position on SJR 3, but
submitted the following testimony for the record on behalf of
Commissioner Pugh.
I understand that discussion in the last hearing included some
thought that if the Department did not have to abide by the
caps set by the Court that we could put more prisoners in
existing correctional facilities.
I wanted to take the opportunity to go into that premise a
little deeper. From a correctional management standpoint,
overcrowding is not solely created by the Court caps. I
welcome the opportunity to discuss with the committee the
other issues that limit the number of inmates that can be
housed in a facility.
1. Inmate management, security, and programs are impacted
negatively. I am firmly on record regarding the dangers of
increased violence, not enough work or treatment programs to
keep inmates busy, and the dangers inherent in inmate idleness
in a correctional institution. In addition to idleness, the
ability to deliver rehabilitative programs decreases. And on
top of it all, the staff are stretched too thinly to provide
a safe level of oversight. I could speak at great length
about these conditions. I've spent the better part of the
last 26 years of my career in and around institutions in
Alaska - as a Superintendent and as a line worker - so I
believe I can attest to what I tell you, not just from a
theoretical or philosophical standpoint, but from actual
hands-on experience in Alaska.
2. The other issue involved in placing more prisoners in an
institution needs to be discussed. That is that each facility
was designed to support a specified prisoner population.
There is a limited capability to absorb increases in
population. What I'm talking about is design capacity of
physical plants.
-There are fire, life safety, and building codes to consider.
There is the Uniform Fire Code, the Uniform Building Code, the
Uniform Mechanical Code, the American Society of Heating,
Refrigeration and Air Conditioning Engineers (ASHRAE)
standards, the Uniform Plumbing Code, not to mention DEC, EPA
considerations, OSHA and ADA.
-Someone said to me the other day that it is like an elevator
that is rated for X pounds. That doesn't mean that you can't
put more pounds in it, but that you tempt system failure with
potentially disastrous results if you exceed the rating -- and
the problem is exacerbated if you exceed the rating every
single time the elevator is called into service.
-I want to give you a few examples of just what I mean. HMCC
in Eagle River is rated for x gallons of effluence handled by
the sewer system and draining into Eagle River. That
translates into 285 inmates. We run the sewer treatment
system and measure the outfall and report to DEC. We're right
at 285. So even if we could put more bunks in cells there, we
would not be able to handle the sewage problem.
-One other comment about sewer discharge: too much sewer
discharge in undersized lines can back up badly. UPC
requirements aren't to be taken lightly. Just last month at
Spring Creek the sewer system backed up into the kitchen, we
had raw sewage in the kitchen area which had to be closed,
system unclogged, kitchen sanitized and the sandwiches bought
from AVTec.
At Palmer Correctional Center in Sutton we have 2 wells. And
the water system and well capacity are at maximum capacity.
We are double bunked at Palmer. Even if we could triple bunk,
which we can't, we would need to put in a new well. We
included the cost of a new well in our bond bill last year
which included an expansion at Palmer.
-In the supplemental budget bill we're asking for more than
$600,000 to replace a boiler in Fairbanks. Putting more
bodies in a building increases the load on a boiler to carry
the heat and hot water. At the very least, this decreases the
life cycle of the boiler.
-KCC is double bunked, it was built for single, but now has
doubles. There is literally no space for a third bunk. The
dayroom is rated for the number of inmates for a single bunk.
Half of the inmates are locked down while the other half are
in the dayroom. The dining room is actually the multi-purpose
room where many other of the activities take place. Inmates
eat in shifts. If another shift is added, for example, the
multi-purpose dining room is not available for scheduled
afternoon activities.
-The Fire Marshall has established exiting criteria, so that
if one would propose housing inmates in areas not designed as
housing, there would be problems with managing exits. If
exits are internal, etc.
-There are standards for minimum ventilation requirements,
typically based on minimum air flows and air changes per hour.
Substantial overcrowding would violate these code
requirements. And while mentioning ventilation codes, I
should point out that prison populations have a relatively
high incidence of TB and hepatitis and other airborne pathogen
diseases. Overcrowding in poorly-ventilated housing units
subject staff and other prisoners to the diseases. Financial
claims and costly litigation often precede expensive facility
modification.
-One last example ... security control systems have switches
and other moving parts. Most mechanical devices are rated for
x number of uses before failure. If you double or triple the
number of uses the switches or parts wear out ... their life
cycle is shorter.
-And from here we could get into a discussion of existing
deferred maintenance needs. I will spare you that, except to
say, we have over $13 million in deferred maintenance and
another $9 in equipment. Over-use of systems just exacerbates
the deferred maintenance problem.
I hope I have answered some questions and given you a broader
glimpse into a day in the life of a correctional manager.
It's not simple and not just a matter of how many people can
fit in an elevator.
SENATOR MILLER moved CSSJR 3(JUD) out of committee with individual
recommendations. SENATOR ELLIS objected and asked about Senator
Parnell's drafting concern. After a brief discussion, SENATOR
MILLER withdrew his motion so that a definition of "prisoner" could
be included in CSSJR 3(JUD).
Number 351
CHAIRMAN TAYLOR noted he would be willing to reschedule CSSJR
3(JUD) at any future hearing, and informed committee members of
testimony from Mr. Paul Sweet who was unable to be connected via
teleconference. Mr. Sweet supports SJR 3 and believes prisoners
should work 12-hour rotating shifts.
SJR 10 ELECTION OF ATTORNEY GENERAL
TUCKERMAN BABCOCK , legislative aide to Senator Green, sponsor of
SJR 10, described materials included in committee members' packets.
Similar legislation passed the House in the mid-1980's but failed
by 5 votes in the Senate. Mr. Babcock noted the Governor and
Attorney General have responded to SJR 10 in the media by saying
the position of attorney general will be used as a stepping stone
and that there will be the likelihood or possibility of partisan
differences between the attorney general and governor. Both of
those concerns are specifically addressed in SJR 10.
Number 326
SENATOR PARNELL asked Mr. Babcock to elaborate on the requirement,
at page 3, lines 14-16, that an attorney general not hold the
office of governor or lieutenant governor until one full term has
intervened. He noted the stepping stone argument can be made for
any office, and questioned on what policy ground that requirement
is being established for one office and not others.
MR. BABCOCK replied that provision is an effort to accommodate
concerns that had been raised that the attorney general's focus
might unduly be on becoming governor. While that is a legitimate
focus for any Alaskan to have, the primary purpose in pursuing the
election of an attorney general is to focus his/her attention on
representing the people on issues of particular importance.
SENATOR PARNELL asked, if one presumes the worst motives, if the
attorney general might actually be pursuing cases the public wants
him or her to pursue? MR. BABCOCK replied public pressure could be
positive. He explained Senator Green's primary concern is to
establish an election for the office of the attorney general, not
to require a time lapse between elections.
SENATOR PARNELL stated he sees the same difficulties with other
offices yet, as a policy matter, it is not of big enough concern to
require a waiting period. MR. BABCOCK commented the lieutenant
governor is elected specifically for the purpose of replacing the
governor, if need be. The governor and lieutenant governor are the
only offices elected on a statewide basis. Each legislator has
duties that encompass the scope of state responsibilities. The
attorney general would be dedicated toward upholding the
Constitution and laws of the state, defending the state in any
civil actions and prosecuting under any criminal action. The scope
of the attorney general's responsibilities are more narrow than
those of other elected officials of the state, that justifies
encouraging the attorney general to focus just on those duties.
Number 273
SENATOR PEARCE referred to a memo dated 3/11/85 to former
Representative Fritz Pettyjohn from a legislative analyst and read
the following:
The major difference between Alaska's prosecutorial system and
that of other states is that most states have elected local
prosecutors whose job it is to investigate suspected criminal
conduct and to prosecute. Thus, even with an appointed
attorney general, there is always someone independent of the
governor with authority to investigate and prosecute. The
authority of the attorney general to intervene in local
prosecutions provides a check and balance on local
prosecutors...By contrast, in Alaska, the district attorneys
are all employed by the attorney general, who in turn, serves
at the will of the governor.
SENATOR PEARCE asked, if a constitutional amendment passes, and the
attorney general becomes an elected official, whether the
Legislature will have to rewrite the statutes to decide what
functions would change in that office.
MR. BABCOCK commented at the time that memo was written, the State
of Pennsylvania had recently undergone that transition. In SJR 10,
Section 28 (c) describes the functions. The first elected attorney
general would not take office until the end of 2002 which would
leave plenty of time for the Legislature to address any necessary
statutory changes. The question would be on the ballot in 1998,
and those changes could be addressed during the next four years.
Number 222
SENATOR PEARCE clarified the prosecutors would still be appointed,
but would be appointed by yet another elected official. One would
assume, if there is misconduct by a state official, the attorney
general's staff would not be unwilling to prosecute. MR. BABCOCK
confirmed that is how the system would work under SJR 10.
CHAIRMAN TAYLOR commented he has historically opposed this type of
legislation, with some exceptions, because he is concerned about
creating another entity that has to spend a fortune to run for
office and then not be able to move on from that office for a
limited amount of time, although he agrees with the waiting period
requirement. He created legislation two years ago to set up a
Constitution Defense Council which would take a middle ground
approach. That Council would act should the attorney general or
governor fail to defend our State's Constitution. He believes
there has been a pattern, with this Administration and Attorney
General, to sell out the Constitution in favor of special interest
groups that helped put them into office. He discussed the Attorney
General's decision to dismiss the tribal status and Babbitt suits
for political, rather than legal, purposes. Those dismissals
forfeited major organic rights of the people of the State of Alaska
and the cases were dropped solely to benefit a specific special
interest group.
CHAIRMAN TAYLOR specifically requested the Governor and/or Attorney
General to appear before the committee and explain why the
committee should not directly elect an attorney general, since it
is the duty and responsibility of the Executive Branch to defend
both its actions and the current constitutional framework under
which they serve. If, in fact, the Governor is contemplating
vetoing such legislation, then the appropriate place for that
debate is in the public forum of the Legislature. If this
legislation is to have any merit at all, it can only be because
those currently serving have misused the position to such an extent
that there may be no other alternative but to turn to the people to
decide on a direct election of that office.
CHAIRMAN TAYLOR noted his intention to hold the bill for one week
so that the Governor and/or Attorney General's presence can be
requested.
MR. BABCOCK thanked the committee for hearing the bill in such a
timely manner, and supported the Chairman's intention to hold the
bill for one week. He reviewed testimony of former Attorney
General Norm Gorsuch, who was opposed to the election of the
attorney general.
SB 19 REPEAL FED ENFORCEMENT DUTIES/F&G COMSNR
JOSEPHINE HARDY , staff to Senator Sharp, sponsor of SB 19,
explained SB 19 repeals the present statutory mandate, AS
16.05.050, Section 1, reqiuring the State of Alaska to assist
federal agencies in the enforcement of federal laws and regulations
as they apply to fish and game resources in Alaska. In light of
aggressive federal actions to assume management of fish and game
over large areas of our State in violation of our Statehood
Compact, Senator Sharp believes the repeal of this statute is
prudent and in the best interests of the citizens of Alaska. The
content of SB 19 was included in SB 77, sponsored by Senator Sharp
during the last legislative session, but was vetoed by the
Governor.
CHAIRMAN TAYLOR believed the Alaska Peace Officers' Association
position before the Senate Resources Committee during the previous
session was that, as long as the legislation only removes the
mandatory language that forces the Commissioner to enter into
agreements, it did not object to the legislation.
KEN TAYLOR , Department of Fish and Game, stated he was not aware of
any objections from ADFG on SB 19.
SENATOR PARNELL moved SB 19 from committee with individual
recommendations. There being no objection, the motion carried.
CHAIRMAN TAYLOR adjourned the meeting at 3:50 p.m.
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