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.)