Last year a different version of SJR 2 passed the legislature and was to be considered by voters on the General Election Ballot. Last year's version (Ballot Measure 1) created a new section of the Alaska Constitution which would have limited all rights conveyed to convicted prisoners in Alaska to those rights required by the U.S. Constitution.

A statewide Dittman research poll indicated 76% of Alaskans supported Ballot Measure #1.

However the Alaska Supreme Court, in Bess v. Ulmer, removed Ballot Measure #1 from the General Election Ballot. In its decision the court created new constitutional law in Alaska by deciding that Ballot Measure #1 was not an "amendment" but rather a "revision" because it would affect more than one section of the constitution and such a change should only be done at a constitutional convention.

In contrast to last year's version, the Finance committee substitute for SJR 2 only limits those rights afforded to convicted prisoners regarding the five factors of criminal administration of Article 1, Section 12 of the Alaska Constitution. SJR 2 would not apply to the excessive bail, excessive fines or to the cruel and unusual punishment provisions also contained in Article 1, Section 12.

SJR 2 also returns the meaning of the phrase "principle of reformation" to the original intent of the framers of the Alaska Constitution by limiting the effect of "the principle of reformation", contained in Article 1, Section 12 of the Alaska's Constitution, to a guidelining principle of criminal administration. In doing this, SJR 2 makes it clear that Article 1, Section 12 does not create an individual right of prisoners to rehabilitation.

Under the United States Constitution, courts have not articulated a right of prisoners to participate in particular programs or to receive rehabilitative treatment. However, the Alaska Supreme Court has found that prisoners have an individual special right of access to rehabilitation programs under the Alaska Constitution.

Most recently the Alaska Supreme Court held, Brandon v The Department of Corrections, that visitation is part of the right to rehabilitation guaranteed inmates under Article 1, Section 12 of the Alaska Constitution. This decision requires the Department of Corrections to give substantial deference to Alaska inmates' desire to be incarcerated near family and friends thus hindering the department's ability to control prison population through inmate transfers.

The Brandon decision may also limit the ability of the State to civilly confine violent sexual predators to facilities outside Alaska after their release from prison. During testimony on SB 2 this year, the state Public Defender's office testified that the State probably will not be able to civilly commit violent sexual perpetrators because of the decision. Since Alaska does not have any in-state commitment treatment facilities, the Brandon decision could severely limit the State's ability to protect the public and appropriately treat these predatory offenders.

These decisions have created difficulties with prison administration in Alaska and have encouraged lawsuits by prisoners under the Alaska Constitution. Imprisoned convicted criminals should not be entitled to the same special individual rights law-abiding citizens enjoy.

The Cleary consent decree has also hampered prison administration in Alaska. The Cleary consent decree does not distinguish between Federal and State Constitutional standards. But this decree does require greater prisoners' rights in Alaska than are required by the U.S. Constitution. SJR 2 cannot directly overrule Cleary since it was a consent decree. SJR 2 can, however, assure that the U.S. Constitution, and not a more protective state constitutional standard, will be the standard for criminal administration in Alaska.

Additionally, the state may be able to modify or overturn the Cleary consent decree in which case the new single standard for criminal administration adopted by SJR 2 could be applied. Passage of SJR 2 itself may give the state sufficient basis to request a court to re-open the Cleary settlement and at the least will add to any legal justification to do so. The immediate impact of passage of SJR 2 may be small, but will prevent state courts from any future expansion of prisoners' rights regarding criminal administration based on the Alaska State Constitution.

The framers of Alaska's Constitution gave Alaskans many highly desirable individual rights and liberties not found in the United States Constitution. Unfortunately, the Alaska Supreme Court has wrongly decided these additional constitutional rights not only protect law-abiding citizens but also give special rights to imprisoned convicted criminals. Passage of SJR 2 would correct this mistake.

DD/jja