More Than Just a Private Affair: Is the Practice of Incarcerating Alaska Prisoners in Private Out-of-state Prisons Unconstitutional?

• Citation: Vol. 17
• Publication year: 2000

§ 17 Alaska L. Rev. 319. MORE THAN JUST A PRIVATE AFFAIR: IS THE PRACTICE OF INCARCERATING ALASKA PRISONERS IN PRIVATE OUT-OF-STATE PRISONS UNCONSTITUTIONAL?

Alaska Law Review
Volume 17
Cited: 17 Alaska L. Rev. 319

MORE THAN JUST A PRIVATE AFFAIR: IS THE PRACTICE OF INCARCERATING ALASKA PRISONERS IN PRIVATE OUT-OF-STATE PRISONS UNCONSTITUTIONAL?

Shymeka L. Hunter

I. INTRODUCTION

II. THE EMERGENCE OF THE PRIVATE PRISON INDUSTRY

A. Prison Overcrowding

B. The Private Sector's Continuing Role in Correctional Institutions

C. Responses to the Rapid Growth of the Private Prison Industry

III. THE DEVELOPMENT OF THE RIGHT TO TRANSFER PRISONERS

A. Federal Law

B. Alaska Law

IV. BRANDON V. STATE DEPARTMENT OF CORRECTIONS

V. HOUSING ALASKA PRISONERS OUT-OF-STATE INFRINGES UPON THEIR RIGHT TO REHABILITATION

VI. CONCLUSION

FOOTNOTES

This Note examines the constitutionality of Alaska's current policy of transferring Alaska state prisoners to privately run prisons in other states. The Note describes the developing interplay between federal law, state law, and the rights of the incarcerated. The Note then introduces a 1997 Alaska Supreme Court case, Brandon v. State Department of Corrections, and draws from the decision's interpretation of the Alaska Constitution to emphasize how the rights of Alaska state prisoners may surpass those granted by federal law, and that a right to rehabilitation is an intrinsic right granted to all Alaska prisoners. The Note proceeds to demonstrate that the right to receive visitors is an integral element of the right to rehabilitation, and that Alaskans transferred to out-of-state prisons are deprived of this constitutional right. The Note concludes by lauding the Alaska Supreme Court's decision in Brandon for its recognition of the rights of all Alaskans, including Alaska prisoners, but warns that this single decision may not be enough to protect the constitutional guarantees granted to all state citizens, and that additional attention to the problem is required.

I. INTRODUCTION

In 1997, Richard Brandon, an Alaska prisoner, was serving twenty-five years at Alaska's Spring Creek Correctional Center prison for a 1990 conviction. ^[1] Because of overcrowding, the Department of Corrections ("DOC") entered into a contract with Corrections Corporation of America ("CCA") whereby CCA would transfer approximately 200 Alaska prisoners to its Central [*pg 320] Arizona Detention Center in Florence, Arizona. ^[2] When the DOC failed to solicit enough volunteers to transfer to Arizona, it selected additional inmates based on the length of their remaining sentences. ^[3] Brandon was selected from a group of inmates with seven and one-half or more years remaining. ^[4]

Shortly thereafter, a classification hearing was held to determine if Brandon would actually be transferred to Arizona. ^[5] Despite noting that Brandon's family visited him weekly, the hearing officer recommended that the DOC transfer Brandon to Arizona, where visitation would be virtually impossible. ^[6] The DOC followed the hearing officer's recommendation, and Brandon appealed to the DOC commissioner. ^[7] When Brandon's appeal was denied, he filed a petition with the superior court on the ground that his appeal to the DOC commissioner was arbitrarily rejected. ^[8] Believing that Brandon's transfer decision was the result of an administrative hearing not subject to judicial review, as opposed to a judicially reviewable adjudicative proceeding, the superior court dismissed Brandon's case for lack of jurisdiction. ^[9] At that point, Brandon had already been transferred to Arizona. ^[10]

Brandon claimed that his transfer substantially impaired his rehabilitation in violation of the Alaska Constitution and Alaska Statutes section 33.30.061. ^[11] The Alaska Supreme Court held that because Brandon's fundamental right to rehabilitation was arguably at stake, the superior court could review the results of a classification hearing. ^[12] The court found that the superior court's jurisdiction is established by a prisoner's "right to judicial review of major disciplinary proceedings when issues of constitutional magnitude are raised." ^[13] The court reasoned that housing Alaska prisoners in private Arizona prisons is an issue of constitutional magnitude be- [*pg 321] cause the Alaska Constitution grants prisoners a constitutional right to rehabilitation, of which the right of visitation is a vital component. ^[14] According to the court, the distance between Alaska and Arizona seriously impedes visitation and, thus, inhibits rehabilitation. ^[15] In essence, because a transfer to Arizona effectively prevents visitation, which is a key element of rehabilitation, the commissioner's decision to transfer Brandon to Arizona put Brandon's constitutional rights at risk. ^[16]

Brandon represents the first time that the Alaska Supreme Court has squarely faced this issue, and no other court appears to have addressed this issue since then. It demonstrates the supreme court's commitment to respecting fundamental constitutional rights for all Alaskans, including Alaska prisoners. Brandon is only a starting point, however; more is needed to assure that prisoners' constitutional rights are safeguarded. Indeed, with nothing more than the Brandon emphasis on prisoners' right to a fair hearing before being transferred out-of-state, the prisoners' constitutional rights may be virtually nullified by Alaska's reliance upon private prisons -- a thousand miles away -- to house Alaska prisoners.

This Note addresses this important issue. Part II presents an historical background that explains why the private sector plays such an intimate role in the correction process and a summary of the current debate surrounding the privatization of prisons. ^[17] Part [*pg 322] III traces the development of federal and Alaska law governing the transfer of prisoners across state lines. Part IV recounts the holding in Brandon in greater detail, and Part V provides an analysis of why it is unconstitutional to transfer Alaska prisoners to private out-of-state facilities. This Note will argue that because the right to visitation is crucial to rehabilitation, and transfers outside of Alaska severely impede visitation, these out-of-state transfers are de facto unconstitutional.

II. THE EMERGENCE OF THE PRIVATE PRISON INDUSTRY

Understanding the significance of Brandon requires that one examine the intimate role the private sector plays in the correctional system. Indeed, privatization of the prison system encourages out-of-state transfers because private entities can choose to build prisons in states that offer the most economic benefits. These out-of-state private entities are then able to enter into contracts with correctional systems in other states to house prisoners. As described below, many states consider this a viable option to address massive overcrowding. Section A examines the recent problem of prison overcrowding. Section B looks at the historical relationship between correctional institutions and the private sector. Section C summarizes the debate over the private prison industry.

A. Prison Overcrowding ^[18]

Between 1988 and 1997, the number of people incarcerated in the United States nearly doubled, skyrocketing from 627,600 in 1988 to 1,244,554 prisoners in 1997. ^[19] This dramatic increase re- [*pg 323] sulted largely from legislative acts that advocate getting "tough on crime" through such avenues as severe intolerance for drugs and weapons violations, ^[20] mandatory minimum sentencing, preventive detention, habitual offender statutes, and reduced use of parole. ^[21]

While virtually every state experienced increased rates of incarceration during the last decade, Alaska was especially notable. ^[22] In 1997, Alaska's incarceration rate increased by over 13%, the third largest increase in the nation. ^[23] By 1998, Alaska's alarming rate of incarceration had increased by 18%, which was 2% more than the state's overall population increase rate. ^[24] Although Alaska's rate of incarceration decreased by 3.6% in 1999, the state still complained of severe prison overcrowding. ^[25]

At the same time that incarceration rates were skyrocketing, the electorate became increasingly hostile to new taxes and construction bonds, the most popular methods of financing state and local prison projects. ^[26] This combination resulted in massive prison overcrowding. ^[27] By the end of 1997, the federal prison system complained that it was functioning at 19% over capacity. ^[28] Meanwhile, state prisons were at least equally overburdened, functioning at 24% over capacity. ^[29] Specifically, thirty-six states complained that their prisons were at 100% capacity or more while Washington, D.C., and several other states were 99% full. ^[30] New Mexico, [*pg 324] functioning at 82% of its capacity, was in the nation's best position while California, whose prisons were 206% full, was in the worst. ^[31] Not far behind California, the Alaska prison system was operating at 147% of capacity. ^[32]

With such massive overcrowding problems, the federal government and the states urgently began to explore new methods of housing prisoners. ^[33] Promising reduced costs, expediency, and better conditions overall, the private sector seemed like an obvious remedy for this virtually insatiable need for prison space. ^[34] In addition, the long relationship between the...