SENATE JUDICIARY COMMITTEE January 25, 1999 1:35 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator Dave Donley Senator John Torgerson Senator Johnny Ellis MEMBERS ABSENT COMMITTEE CALENDAR SENATE BILL NO. 2 "An Act providing for civil commitment of sexually violent predators." -HEARD AND HELD SENATE JOINT RESOLUTION NO. 2 Proposing an amendment to the Constitution of the State of Alaska relating to the rights of prisoners under the criminal administration section. -MOVED SJR 2 OUT OF COMMITTEE PREVIOUS SENATE COMMITTEE ACTION SB 2 - No previous action to report SJR 2- No previous action to report WITNESS REGISTER Ms. Tam Cook Director Legislative Legal and Research Services 130 Seward Street, Suite 409 Juneau, AK 99801 POSITION STATEMENT: Commented on SJR 2 Ms. Anne Carpeneti Assistant Attorney General Department of Law PO Box 110300 Juneau, AK 99801-0300 POSITION STATEMENT: Commented on SJR 2, SB 2 Ms. Juli Lucky Staff to Senator Rick Halford State Capitol Juneau, AK 99801-1182 POSITION STATEMENT: Presented SB 2 Mr. Carl Brimner Director Division of Mental Health and Developmental Disabilities PO Box 110620 Juneau, AK 99801 POSITION STATEMENT: Commented on SB 2 Mr. Jerry Luckhaupt, Attorney Legislative Legal and Research Services 130 Seward Street, Suite 409 Juneau, AK 99801 POSITION STATEMENT: Commented on SB 2 Ms. Jean Steele National Association for the Mentally Ill PO Box 837 Homer, AK 99603 POSITION STATEMENT: Commented on SB 2 Ms. Patricia Kouris PO Box 241332 Anchorage, AK 99524 POSITION STATEMENT: Commented on SB 2 Mr. Byron Charles PO Box 23316 Ketchikan, AK 99901 POSITION STATEMENT: Supported SB 2 ACTION NARRATIVE TAPE 99-3, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 1:35 and announced SJR 2 would be the first order of business. SJR 2-CONST. AM: PRISONER'S RIGHTS SENATOR DAVE DONLEY, prime sponsor of SJR 2, presented the bill to the committee and said this legislation proposes an amendment to the Alaska Constitution to be voted on in the next general election. The bill would amend article 1, section 12 of the Alaska Constitution to limit the rights of convicted prisoners in Alaska to those to which they are entitled under the United States Constitution. SENATOR DONLEY noted that the legislature passed a similar bill last year but that bill applied to the entire constitution and this bill affects only those rights which fall under a specific section of the constitution: article 1, section 12. SENATOR DONLEY said this amendment might affect the right of prisoners to have a say in the location of their incarceration and the individual right to access programs while incarcerated and may also give the State standing to revisit the Cleary decision. The Cleary settlement governs prison administration in Alaska and SENATOR DONLEY believes there is no basis for the decision in either state or federal constitutional law. Number 110 SENATOR DONLEY remarked that the Cleary decision removed any flexibility the State had in prison administration and SJR 2 would allow the case to be revisited, provided the Department of Law was willing to do it. More generally, SENATOR DONLEY proposed that this amendment may prevent untold future problems that could result from bad Supreme Court decisions. SENATOR DONLEY said as recently as 1997 the court has expanded prisoners' rights even in the face of clear evidence that was not the intent of Alaska's constitutional convention. SENATOR DONLEY concluded this bill does not deal with as many issues as last year's proposal did, but it is still a useful initiative to put before the voters. Number 186 MS. TAM COOK, Director of Legislative Legal Services, came forward to explain why this initiative should pass constitutional muster even though last year's did not. MS. COOK stated that the Alaska Supreme Court issued a preliminary decision that suggested the legislature has the power to propose amendments to the State Constitution, but not revisions of it. The court decided the scope of last year's amendment was so broad it constituted a revision of the Constitution rather than an amendment. MS. COOK explained that since the court has only issued a preliminary decision, her understanding of the reasoning behind their ruling is somewhat limited. MS. COOK observed the court focused on the number of sections of the Constitution that would be affected by the initiative and found 12. Two of the sections the court focused on, protection from excessive bail, excessive fines and unusual punishment, and the rights stemming from the principle of reformation, are the sections that will be influenced by this new, narrower amendment in SJR 2. MS. COOK said the hope is that the initiative has been narrowed enough to be deemed an amendment, rather than a revision, by the court. SENATOR ELLIS asked how it is possible to change the principle of reformation without affecting other sections of the Constitution by extension. SENATOR ELLIS said this doesn't seem like the best strategy to get this through the court. MS. COOK replied SENATOR ELLIS'S objection might be valid but in the preliminary decision the court identified the principle of reformation as a separate right. MS. COOK concluded this may be the best shot at trying to get something through. Number 265 SENATOR HALFORD asked when the full written opinion of the court could be expected. MS. COOK answered she has no expectations in this regard. CHAIRMAN TAYLOR commented that the failure of the court to issue timely decisions is a problem he would like the committee to address if there is no change. CHAIRMAN TAYLOR said the Supreme Court is supposed to consider cases within four to six months and he knows of cases that have dragged out 18 months or so. CHAIRMAN TAYLOR remarked this is offensive and he believes the Supreme Court has a duty and an obligation to act with dispatch. CHAIRMAN TAYLOR expressed concern that this decision precludes any amendment to the Constitution. He suggested an amendment to any provision of the Constitution would have some impact on other peripheral sections and would be subject to the court's ruling. MS. COOK replied that the court has indicated it will consider amendments on a case by case basis and it remains to be seen how the court will interpret the legislature's ability to propose amendments to the constitution. MS. COOK said case law will accumulate from this and future decisions. CHAIRMAN TAYLOR commented that the court can read newspapers, too, and seems willing to take on some issues and not others. SENATOR DONLEY added the real problem is that the court did not allow a full briefing on this issue. SENATOR DONLEY also said that he has never in the history of our nation's jurisprudence seen an incidence like this in which a court has amended a proposition put forth by the legislature and then placed it (as amended) on the ballot. SENATOR DONLEY remarked the Supreme Court seems to be in a "very creative mode." Number 376 MS. ANNE CARPENETI, representing the Department of Law, said the department was caught off guard by the 24-hour rule and she was pinch-hitting for Mr. Dean Guaneli who would be the more appropriate person to speak to this legislation. MS. CARPENETI said she understands CHAIRMAN TAYLOR's frustration with the court but is unable to address it. MS. CARPENETI said the preliminary decision is based on a California decision (RAVEN v. DEUKMEJIAN) which rules that both quantitative and qualitative bases are used to determine whether a constitutional change meets the threshold of a revision rather than an amendment. MS. CARPENETI said we do not know exactly the basis on which the Alaska Supreme Court came to their decision, but we know that a more limited approach is more likely to get on the ballot. MS. CARPENETI stated that Mr. Guaneli wanted to advise the committee that since they seem most concerned with the principle of reformation, they may want to draft the amendment in a way that affects only that provision. Number 405 SENATOR ELLIS asked SENATOR DONLEY why the bill limits prisoners' rights to those allowed by the federal constitution, rather than directly repealing the reformation rights granted by the State Constitution. SENATOR DONLEY replied he agrees with the principle of reformation in the Constitution and the intent behind it. He explained the Constitutional Convention intended the principle of reformation to be a guideline, not an individual right as it has been misinterpreted by our court. SENATOR DONLEY said by setting the federal benchmark, a minimum standard is guaranteed to prisoners but the court is prevented from creatively expanding prisoners' rights in defiance of the intent of the Constitutional Convention. Number 435 SENATOR ELLIS asked what had happened to the idea that we Alaskans don't care how other people do things. He asked if it was SENATOR DONLEY'S belief that we spend too much money rehabilitating people. SENATOR DONLEY replied he believes our Constitution and the intent of the principle of reformation is good, but it is being misinterpreted by our Supreme Court. SENATOR DONLEY suggested the 1997 case demonstrated the future danger of following the line of logic that expands prisoners' rights. SENATOR ELLIS mentioned that the Department of Corrections spends quite a bit of money to make a law library available to prisoners. He asked if this bill would affect that. SENATOR DONLEY replied prisoners would still have access to information about the law, as specified in the U.S. Constitution, but, unless it is determined by the court that the library itself is a requirement of the federal constitution, the method of access to the information might be different if it was found to be more cost effective. SENATOR DONLEY said it is difficult to understand the Cleary decision fully as the court did not see fit to distinguish what was based on federal constitutional law and what derived from our state constitution. CHAIRMAN TAYLOR asked if there was anyone else wishing to testify on SJR 2. Number 505 SENATOR HALFORD moved SJR 2 from committee with individual recommendations. SENATOR ELLIS objected. SENATOR ELLIS spoke to his objection saying he has supported the no-frills prison legislation but in this case would like to see the committee wait for more guidance from the Supreme Court. SENATOR ELLIS suggested the committee might send a letter to the court asking them to expedite their decision. He commented that his objection was also based on the grounds that a constitutional amendment on subsistence is a much more pressing concern. CHAIRMAN TAYLOR responded by saying he believes the Supreme Court knew the Legislature would want more than a preliminary opinion on this issue and he is not willing to wait. Action may prompt the court's attention to this matter, according to CHAIRMAN TAYLOR. CHAIRMAN TAYLOR noted that if the court ruling under discussion says anything, it says the legislature will never be able to bring an amendment on subsistence that is narrow enough to be considered an amendment rather than a revision. SENATOR ELLIS asked if CHAIRMAN TAYLOR planned to work on a subsistence amendment. SENATOR TORGERSON interjected that this was not part of the discussion and they were working on SJR 2. Number 550 SENATOR ELLIS remarked he was simply addressing CHAIRMAN TAYLOR'S comments and he hoped the committee would continue to conduct itself in the open, fair and far-ranging manner it has in the past under CHAIRMAN TAYLOR'S leadership. CHAIRMAN TAYLOR called for the vote on the motion. The roll was called on the motion to move SJR 2 from committee with individual recommendations. Voting yea were SENATOR HALFORD, SENATOR TORGERSON, SENATOR DONLEY and CHAIRMAN TAYLOR; SENATOR ELLIS voted nay. SJR 2 moved from committee with individual recommendations. SB 2-CIVIL COMMITMENT OF SEXUAL PREDATORS MS. JULI LUCKY, staff to SENATOR HALFORD, presented SB 2 as a mechanism to protect society from serial rapists, pedophiles and other sexual predators who are highly likely to re-offend. MS. LUCKY said similar legislation has been enacted in 14 states and has been upheld by the U.S. Supreme Court. Number 576 SENATOR ELLIS reported that he was contacted with an amendment which clarifies that civilly committed sexual predators would not be housed in expensive psychiatric facilities. TAPE 99-03, SIDE B Number 001 MR. CARL BRIMNER, Director of the Division of Mental Health and Developmental Disabilities, remarked the department prefers the bill with the amendment recommended by SENATOR ELLIS. MR. BRIMNER expressed concerns about the bill. First, the department is worried that the bill may go forward with no fiscal note. MR. BRIMNER stated this is an expensive proposition. SENATOR HALFORD asked where people who have been deemed guilty but mentally ill are currently housed. MR. BRIMNER replied they are housed at the Anchorage Psychiatric Institute (API). SENATOR HALFORD asked how long an individual might be held at API. MR. BRIMNER said they may be housed there for as long as they are incompetent to stand trial. Number 565 SENATOR HALFORD remarked that sexual predators may be better off housed at a facility other than API since in some cases resources are wasted on people who are unlikely to be helped. MR. BRIMNER mentioned that there is a difference between the population they are discussing in this bill and the population at API. The difference is those who are at API now are biochemically mentally ill and may be responsive to some type of treatment; "sexual predators" are not mentally ill, but have a personality disorder and do not respond to treatment or medication. SENATOR DONLEY asked if people who have committed crimes are mixed into the general population at API and MR. BRIMNER replied they are in a separate forensic unit. SENATOR TORGERSON inquired if four weeks is long enough for evaluation at API. MR. BRIMNER indicated four weeks would likely be adequate time unless some treatment was involved. SENATOR TORGERSON asked if this might be contracted out. MR. BRIMNER said it would go out to bid, but to his knowledge, there is no appropriate facility in Alaska at this time. A facility would require both secure housing and a treatment program. SENATOR TORGERSON asked if yearly reevaluations of those committed would really be necessary. MR. BRIMNER responded that reevaluation could be done at longer intervals or could be contingent on progress. Number 505 SENATOR ELLIS asked the difference between this amendment and the language in the bill last year. MR. JERRY LUCKHAUPT, staff attorney from Legislative Legal Services, came forward to answer that question. MR. LUCKHAUPT explained that the old language did not allow these people to be housed in a state run facility and the new language does allow it in case the state may want to operate this type of facility in the future. Number 474 MR. LUCKHAUPT stated under the bill, civilly committed people have to be under the care of the Department of Health and Social Services, not necessarily in a mental health facility, but separate from other people who are committed for other reasons. SENATOR DONLEY asked if it was possible to broaden this category so other classes of perpetrators could be housed with them. MR. LUCKHAUPT said the intent of the amendment requires housing them apart from any other person under the jurisdiction of the Department of Health and Social Services. MR. LUCKHAUPT also explained that to keep the bill constitutional, these people may not be housed in a correctional facility. SENATOR DONLEY remarked this is a very narrow restriction that may be difficult to administer. He did not want to preclude the combination of these people with other "mutually dangerous criminals." Number 415 CHAIRMAN TAYLOR considered the possibility of building a facility adjacent to a correctional facility. CHAIRMAN TAYLOR thought this might allow some way to deal with these people without jeopardizing mental health programs or prison administration. SENATOR DONLEY commented that he would like the bill to allow for more flexibility. SENATOR HALFORD stressed that the key is this commitment is for treatment, not punishment. Number 383 SENATOR ELLIS moved Amendment #1. SENATOR ELLIS described there may not be any other class of people who could be lumped together with these people and still have the bill remain constitutional. SENATOR DONLEY suggested they should leave it up to the mental health experts to determine if such a population exists. MS. CARPENETI stated the amendment came from the mental health experts. CHAIRMAN TAYLOR observed that we may end up building a facility for two or three people. MR. BRIMNER repeated that this population of sexual predators with deviant personalities are dissimilar from other mentally ill populations. MS. CARPENETI emphasized that the bill specifically allows for a separate facility on the grounds of a correctional facility so long as it is separate and under the administration of the Department of Social Services. MS. JEAN STEELE, testifying from Homer, agreed with the amendment but insisted the bill should be clarified in regard to the definitions of mental illness versus insanity. MS. STEELE stated personality disorders and antisocial behavior are not mental illnesses. MS. STEELE said and her primary concern is that offenders should be sentenced to and serve longer terms. SENATOR HALFORD stressed that the legal definition of mental illness is very different and much more expansive than the clinical definition. The bill uses the legal definition. Number 274 MR. LUCKHAUPT remarked the bill uses the definition of mental illness used in A.S.12.47.090: "any medical condition that increases the propensity of the defendant to be dangerous to the public peace or safety." This definition is used in cases in which a defendant who is found guilty is required to show he or she is not a danger to society. This is similar to the process in which a person might be civilly committed under this bill. MR. LUCKHAUPT said this definition is different from "mental disease or defect" which is the standard used for other involuntary civil commitments. Number 230 MS. PATRICIA KOURIS, representing the National Alliance for the Mentally Ill (NAMI) Alaska chapter, repeated the importance of housing these sexual predators separately from potentially vulnerable mentally ill patients like those at API. MR. BYRON CHARLES, from Ketchikan, testified to his support of the bill. As a victim of sexual abuse and an ex-offender, MR. CHARLES expressed concern with the evaluation process of prisoners now incarcerated. MR. CHARLES suggested better evaluation and treatment of prisoners might lower the recidivism rates of sex offenders. MR. CHARLES voiced the opinion that stricter sentences should also be considered for offenders and repeat offenders, as any time they receive is no match for the suffering of their victims. Number 140 SENATOR ELLIS moved a technical amendment to Amendment #1: on page 5, line 18 delete the words "mental health" and insert the word "treatment" and insert the word "treatment" on page 5, line 11. Without objection, the amendment to the amendment was adopted. CHAIRMAN TAYLOR stated the main amendment was now before the committee. Without objection, Amendment #1 (as amended) was adopted. CHAIRMAN TAYLOR noted there was additional public testimony and stated this would be taken up Wednesday @ 1:30.