HOUSE JUDICIARY STANDING COMMITTEE January 29, 1997 1:00 p.m. MEMBERS PRESENT Representative Joe Green, Chairman Representative Con Bunde, Vice Chairman Representative Brian Porter Representative Jeannette James Representative Norman Rokeberg Representative Eric Croft Representative Ethan Berkowitz MEMBERS ABSENT All members were present COMMITTEE CALENDAR OVERVIEW: Department of Corrections PREVIOUS ACTION No previous action to record WITNESS REGISTER MARGARET PUGH, Commissioner Department of Corrections 240 Main Street, Suite 700 Juneau, AK 99801 Telephone: (907)465-4652 ROBERT (Bob) COLE, Director Division of Administrative Services Department of Corrections P.O. Box 112000 Juneau, AK 99811-2000 Telephone: (907)465-3342 DEAN GUANELI, Chief Assistant Attorney General Criminal Division Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Telephone: (907)465-3428 ACTION NARRATIVE TAPE 97-6, SIDE A Number 000 The House Judiciary Standing Committee was called to order by Chairman Joe Green at 1:00 p.m. Members present at the call to order were Representatives Con Bunde, Brian Porter, Eric Croft, Ethan Berkowitz and Chairman Joe Green. CHAIRMAN JOE GREEN advised members the Department of Corrections would be providing an overview of their department, adding that over the past four years legislation had been enacted affecting the department, as well as a large number of bills the committee would be addressing during this session that would impact the Department of Corrections. OVERVIEW: Department of Corrections MARGARET PUGH, Commissioner, Department of Corrections, advised members there were three major divisions within the department; Division of Institutions, Division of Community Corrections and the Division of Administrative Services. The two largest divisions, Institutions and Community Corrections were based in Anchorage, and the Division of Administrative Services based in Juneau. COMMISSIONER PUGH pointed out that the Division of Institutions was the largest division in the department that operates 15 correctional facilities located around the state. The division consists of approximately 1100 employees who manage a prisoner population of 3,017, as of January 18th, which was 112 percent of the emergency rated capacity of 2,691. COMMISSIONER PUGH explained that major sections that fall within the Division of Institutions were programs consisting of prisoner work programs, educational programs, alcohol and substance abuse treatment programs, chaplaincy, sex offender treatment programs, life skills, prison industries and an anger management and batterer program. COMMISSIONER PUGH advised members that the Division of Community Corrections had 13 regional probation offices throughout the state who supervise individuals released on probation or parole, which currently consisted of 4,247 persons. The division also manages the Point McKenzie Farm which houses 92 offenders, and eight community residential centers, or halfway houses, in Anchorage, Juneau, Fairbanks, Bethel and most recently Barrow. In those locations, the division manages 558 halfway house beds and were running approximately 93 percent of capacity. Representatives James and Rokeberg arrived. Number 795 COMMISSIONER PUGH pointed out that since last year, the department had fully automated 31 out of 32 sites on the state network, which allows the department the ability to exchange documents and talk to one another by use of E-Mail. She noted that they had also built the hardware network platform for the department's continued efforts to develop an automated management information system that would be a part of the integrated project with the other criminal justice agencies; Public Safety and the Department of Law. COMMISSIONER PUGH advised members the department had streamlined their recruitment examination and training practices for the purpose of assuring an adequate qualified pool of applicants to handle staff turnover, and also employees who had or would be participating in the Retirement Incentive Program (RIP). She noted that the department had also opened continuous recruitment for correctional and probation officers, adding that changes had been made to the application process making it more user friendly. Number 1621 COMMISSIONER PUGH advised members that the department's training academy was co-located with the Anchorage Police Department's training center on Dimond Boulevard and had worked well for the department. COMMISSIONER PUGH responded to a question posed by Representative Rokeberg relating to the implementation of a day reporting center. She informed members that two years ago the department approached the legislature with a request to open a day reporting center. The program would involve persons who had violated their probation or parole requirements, and rather than put them back in prison, they would be placed in the day reporting center which was less expensive and less intense than being incarcerated. She noted that the individuals would be required to work and attend different counseling, as appropriate. Commissioner Pugh pointed out, however, that the legislature cut the department's funding that year rather than providing funds for a day reporting center, so that idea was abandoned. COMMISSIONER PUGH pointed out that the department applied for a grant through the Burn Grant Fund and with those funds had provided the probation officers with some additional tools to supervise parolees and individuals on probation. COMMISSIONER PUGH stated with regard to expanding the state's correctional facilities, the city of Delta had requested the department to consider building a center in that area. Last year the department introduced a plan that would have expanded the state's regional correctional facilities and build new facilities to replace the Sixth Avenue facility in Anchorage, and also a replacement contract jail in the North Slope Borough. At that point, Delta was not included in the department's expansion plan. COMMISSIONER PUGH advised members that she had been working very closely with the city of Palmer. She expressed that they were very willing to work with the department in financing and building the expansion facility planned for that area. The city of Bethel was also willing to work with the department in financing and expanding, as well as the North Slope Borough who was further along in their process than anyone else, but had yet to select the specific site and financing mechanism. COMMISSIONER PUGH noted that there were several discreet populations in need of special housing and security concerns which included juvenile offenders, mentally ill and geriatric inmates. REPRESENTATIVE BRIAN PORTER referenced the community residential centers and asked if those populations might qualify for electronic home monitoring, and if the department had considered that system as an alternative to actual bed space. COMMISSIONER PUGH advised members that the department had conducted several pilot programs over the past year with the electronic monitoring program, pointing out that they were not as successful as she hoped they would be, although they would continue to explore those options. Commissioner Pugh noted that what she would like to see was a person sentenced to an electronic monitoring device because at this point the department would have to make the decision as to who would be appropriate for that program. Number 2414 REPRESENTATIVE BERKOWITZ asked the Commissioner to address the rate of increase in prison population. COMMISSIONER PUGH advised members the department was realizing a 6 percent to 8 percent increase per year in institutional population. She pointed out that the fastest growing population was female offenders, which was a national trend as well. She expressed that there were a good number of mentally ill offenders, and offenders with developmental disabilities, along with a growing number of juvenile offenders. TAPE 97-6, SIDE B Number 000 COMMISSIONER PUGH informed members that the department's Retirement Incentive Plan (RIP), had been approved December 13, 1996, which offered the first window to 238 employees for application between January 13th and February 12th. She noted that July 1, 1997 would be the end date for taking early retirement. COMMISSIONER PUGH advised members the department completed a multi- year evaluation of the sex offender treatment program at the Highland Mountain Correctional Center. She expressed that the results clearly demonstrated that treatment was an important element in lowering victimization upon a sex offender's release from prison. Commissioner Pugh noted that the study had received some international attention, which she felt was probably because it was one of the few of its kind because it included data on indigenous people. The department had received inquiries from New Zealand, Australia, Canada and many states around the country. Commissioner Pugh pointed out that the study had provided the department with data that would assist them in what populations they were realizing success with. Number 166 COMMISSIONER PUGH advised members the department had done two recent projects that would increase the ability to track and monitor sex offenders. She noted that they did not have a criminal justice information system at the present time, and were now in the midst of cross-referencing the department's data on sex offenders with the Department of Public Safety's data on sex offenders who are required to register with the state when released from prison. The other project involved a stand-alone sex offender data base which would provide the department a better ability to track and monitor sex offenders under the department's supervision. Commissioner Pugh explained that the data compiled on all the sex offenders out in the communities under supervision would be in that one stand-alone computer with one person monitoring the program and would be alerted of any changes that might occur. COMMISSIONER PUGH advised members that the department had qualified for some federal funds out of the federal violent offender incarceration bill. She noted that they had received approximately $2.3 million, adding that the legislature would be getting the department's plan for expending those dollars. Commissioner Pugh pointed out that the federal government requires those funds be spent on capital projects only, to add bed space for violent offenders. She thought the department might qualify for more of those funds over the next few years. COMMISSIONER PUGH advised members with respect to the Cleary Settlement that the department would be approaching the legislature at some point with a supplemental request to pay the fines that had accrued in the case through June 30, 1997. Number 362 REPRESENTATIVE ROKEBERG noted that under the budget request unit (BRU) for institutions the department was requesting the transfer of $1 million for out of state contracts. He asked if those funds were for the contract facility in Florence, Arizona, for additional beds over and above the original 200 beds. BOB COLE, Director, Administrative Services, Department of Corrections, stated that Representative Rokeberg was correct, those funds would increase the bed space to 250. He advised members that the Division of Institutions had been classifying potential transferees, with approximately 14 or 15 who could go presently. Mr. Cole stated that the budget, as presently written, assumes that the department would exercise their option, during FY 98, to place the entire additional 44 inmates at the Arizona facility. MR. COLE noted that an exception to the 'capital cost only' requirement on the federal bill crime funds was that it could be used to lease space, out-of-state, from a private entity. Because of that exception, the department had sent inquiries to the federal officer regarding the allowable uses of those funds. REPRESENTATIVE BUNDE asked Commissioner Pugh if she had a position on privatizing prisons in the state of Alaska. COMMISSIONER PUGH explained that the department stood ready to speak with anyone who had a proposal and were willing to discuss all available options. REPRESENTATIVE PORTER advised members there was a piece of legislation that would not allow the state to exceed the federal standards for state correctional standards, with the intent that it would provide a better position to reenter the Cleary debate. He asked Mr. Guaneli if he would concur that that would be a likely result. Number 659 DEAN GUANELI, Chief Assistant Attorney General, Criminal Division, Department of Law, responded that there were a couple of provisions of which one involved a proposed Constitutional Amendment which referred to the federal standard on cruel and unusual punishment, and the other was Senator Donley's "No Frills Prison" bill. REPRESENTATIVE PORTER clarified that he was referring only to the Constitutional Amendment. MR. GUANELI advised members that the Cleary Order had not been based on any specific finding by the court that the state had violated the Constitution. To that extent, a change in the constitutional standard would not specifically give rise to an argument that the state could get out from under the Cleary Decision. Mr. Guaneli felt that decision would be with the state, in some form or another, for a long time. REPRESENTATIVE PORTER stated that it was his understanding that some provisions within the Cleary Agreement exceeded the federal standard, and if true, he felt that would be of assistance to the state if the administration chose to readdress or reenter the Cleary Decision. MR. GUANELI stated that to the extent there would be further litigation, and that the constitutional standards were an issue, that Representative Porter was correct. He stated that whenever the Constitution sets a floor for standards or rights, it would be up to the administration to provide for something above the constitutional floor. REPRESENTATIVE PORTER advised members that it was his understanding that the Constitutional Amendment being proposed would not set a floor, but a ceiling, that the state's Constitution may not be interpreted to exceed the minimum standards of the federal requirements. MR. GUANELI agreed that the amendment appeared to be worded that way; however, the effect was that it adopts the federal standard as the floor and would not permit the state to provide anything less than those standards. He pointed out that Senator Donley's proposed legislation, more or less, provided for a ceiling by expressing the philosophy that certain conditions should not be better than as provided in the federal standards. REPRESENTATIVE CROFT stated that during the press conference it was expressed that certain space guidelines were established in the Cleary Decision and the federal guidelines were much lower. He asked if the state would fall under the 100 percent capacity if the federal guidelines were followed. MR. GUANELI thought that anytime one speaks about setting capacities in a facility that it would depend on a number of different factors, such as the physical makeup of the facility, the type of prisoner housed, the custody classification and other factors. Mr. Guaneli advised members that there was a popular misconception that the state simply negotiated the Cleary Case away, when the fact is, the case went to trial in 1984 and the state lost. He noted that after the trial the Superior Court set population limits, at the then existing correctional facilities, that were, in many cases, substantially lower than the state was able get through negotiations some time later. Mr. Guaneli felt it was fair to say if the state got back into the litigation mode and the court applied a constitutional standard and imposed population limits, that it might very well be less than the population limits the state was currently operating under in Cleary, which the state was exceeding anyway. Number 930 REPRESENTATIVE ROKEBERG asked if it was possible for the legislature, by statute, to repeal one or all provisions of the Cleary Settlement. MR. GUANELI advised members that specific provisions were laid out in Cleary, as well as specific provisions in the court rules that allow someone who is under a court order, whether negotiated or not, to go back to the court and ask the court to relieve it from the provisions of the judgment, however there were certain standards for doing that. One standard would consist of a material change in the law underlying the particular area, but would ultimately become a judicial decision whether or not to allow the state to get out from under the Cleary decision. Mr. Guaneli stated that if there was a material change in the law, that it could provide the state some grounds to go back to the court and request relief from the effect of the judgment. MR. GUANELI felt that a problem in pursuing that was that the court would always look to the underlying intent of the order, which was to make sure the department was operating its system in a safe, effective, humane manner consistent with, not only the state and federal Constitutions, but the laws of the state as well. He pointed out that the laws of the state require a number of things; medical care, prison programs, et cetera. Mr. Guaneli advised members that it was his belief that as long as the state was operating its prisons substantially in excess of the capacity set by the court in Cleary, that he did not believe the court would relieve the state from those standards. REPRESENTATIVE ROKEBERG referred to the concept of the separation of powers, pointing out that he felt it was an extraordinary act of the court and certain standards within the Clearly Settlement, that were above any rational standards that the legislature, as the articulator of public policy, would set. MR. GUANELI cited, as an example, the Sixth Avenue facility in Anchorage that was built many years ago. That facility was designed to house 96 inmates; plumbing, sewage, heating and space was designed for 96 inmates. He pointed out that the state was consistently holding approximately 140 inmates at that facility and the emergency capacity was some where around 108 prisoners. Mr. Guaneli stated that there was a real question whether that was an irrational decision by the court to say that a facility designed for 96 inmates should not hold more than 108 inmates. MR. GUANELI felt that one could go through each state facility and arrive at similar conclusions that perhaps the parties who negotiated the Cleary Settlement had some rational basis for arriving at the population caps they arrived at. REPRESENTATIVE JAMES pointed out that there was a school in her district built for 165 students and there were up to 300 students attending that school and she had not been able to secure funds for expansion of that school. REPRESENTATIVE BERKOWITZ expressed that there were a lot more prisoners within the Alaska system than one would like to see; however, one of the primary directives of the statute was to focus on rehabilitation for the offenders. He asked what types of rehabilitation efforts were being made, and the effects those efforts or programs had on the rate of recidivism. COMMISSIONER PUGH advised members that the department offered work and education, specific programs in sex offender treatment, anger management, life skills, chaplaincy and prison industries, which were the department's basic programs. She noted that the state had not conducted a recidivism study for a number of years, adding that if the department had a better management information system they would be able to better provide ongoing data to the legislature. REPRESENTATIVE CROFT spoke to the issue of the fines imposed for prisoner overcrowding, and asked if a fine had been paid, and if so, who it was paid to. MR. GUANELI advised members fines had been imposed by the court as a result of the state being way over capacity for a number of years and those fines had been accruing. He noted that the court just recently ordered that the fines be paid to the court and ordered the court to decide how those funds would be spent. Mr. Guaneli noted that the state's argument was that if the fines were going to be paid they should go back into the general, like any other fine, and be available for appropriation by the legislature. Mr. Guaneli pointed out that the state got the court to stay that order because it raised, in the state's view, significant constitutional questions relating to the separation of powers. He stated that they had been in further negotiations with the plaintiffs' attorney regarding ways in which the state could spend a certain amount of money on things that would assist the overcrowding situation, and that the plaintiffs would agree that that amount of money be offset against the fines. Mr. Guaneli stated that because of new community residential center beds, the state had been able to get an offset against the fines of several hundred thousand dollars. No fines had been paid to date, but if the court lifts the stay and orders the money paid, it was the state's intent to move for a stay in the Supreme Court and pursue that appeal vigorously. CHAIRMAN GREEN referenced the escapee situation that took place at the Arizona facility and asked the commissioner if the size of that facility and the ability to control the inmates played a role in the escape that took place. COMMISSIONER PUGH advised members that the Arizona facility was currently at a capacity of approximately 1300 inmates. She explained that when the department first contracted with that facility it was at 500 capacity and the department bought 200 beds. Commissioner Pugh stated that since that point in time, Corrections Corporation of American (CCA) had been in a building mode, and were up to the 1300 capacity. She noted that they had built fast and quick, with new staff coming online as they expanded the facility, which she felt contributed to some of the problems that had taken place. Commissioner Pugh noted that the larger a prison facility was, the more opportunity for a disturbance existed, that larger usually meant increased opportunity for difficulties within a prison setting. TAPE 97-7, SIDE A Number 000 COMMISSIONER PUGH expressed that Alaska was fortunate in conducting a safe and secure correctional system and had not needed to have a mega prison, which she felt had contributed to the department's success, as well as excellent training of staff. CHAIRMAN GREEN asked the commissioner to address the difference between multiple story prisons, versus a single story facility. COMMISSIONER PUGH noted that there were high-rise urban correctional centers throughout the United States; however, she pointed out that those facilities did realize some difficulties because of the additional security that would be necessary to protect the public. COMMISSIONER PUGH responded to a question posed by Representative James regarding the effect of the prison industries program. Commissioner Pugh advised members that she was an enthusiastic supporter of prison industries. She explained that the program provided the opportunity for meaningful work for inmates which allowed them to earn a minimal wage, and also provided a means to keep the prison population as far from idle as possible, which limited the opportunities for nefarious kinds of behavior as well. REPRESENTATIVE JAMES expressed her interest in the Mt. McKinley meat plant and its effectiveness. Mr. Cole stated that he would gather and provide more detailed information to Representative James relating to the Mt. McKinley meat plant and the department's affiliation with that plant. CHAIRMAN GREEN advised members that while visiting several correctional facilities in the state he was really impressed with the quality of workmanship of some of the inmates, furniture in particular. He noted that the state was receiving negative feedback from the public because prison industries was in competition with the private sector. Chairman Green asked if the department was addressing that situation in a way that would allow those programs to continue and maintain the ability to sell the finished product. COMMISSIONER PUGH advised members that was a continuing challenge. She explained that part of the statute provides that prison programs should not compete with the private sector in a harmful manner. Commissioner Pugh stated that the Correctional Industries Commission takes under advisement any proposed new industry and considers them statutorily prior to actual implementation of a program. She reiterated that it was a continuing challenge and one the department would continue to deal with because it was important for inmates to work and important for them to learn life-skills that come through working, and also important that they contribute back to the society from which they had taken by committing a crime. Commissioner Pugh noted that the department would continue to work with the communities and the private sector so they would not be competing in a harmful manner. Number 1483 ADJOURNMENT There being no other comments or questions of the Department of Corrections, Chairman Green adjourned the House Judiciary Committee meeting at 2:58 p.m.