In 2000 Shymeka L. Hunter published an article in the Alaska Law Review entitled, “Is the Practice of Incarcerating Alaska Prisoners in Private Out-Of-State Prisons Unconstitutional”. For an in-depth understanding of how the Alaska constitution protects Alaska prisoner’s rights to rehabilitation, this article can be accessed via the Internet at www.Law.duke.edu/journals//17ALRHUNTER
The article relies on a 1997 case titled Brandon v. Alaska Department of Corrections (ADOC), 938 P.2d 1029; where the Alaska Supreme Court acknowledged that Alaska’s constitution protects the Alaska prisoner’s right to rehabilitation. This court also stated that, “...visiting is the most direct link for an inmate with the world left behind. Indeed, visiting is indispensable to any realistic program of rehabilitation.” That being the case, then visiting must necessarily be established and included within those constitutional guarantees protecting the right to rehabilitation. But the question as to whether or not the Alaska Constitution protects visitation for the families of those that are incarcerated remains.
I think Alaska’s constitution protects the visitation rights of all Alaska families who have incarcerated family members from a perspective other than that of the Alaska Supreme Court’s decision in Brandon, that perspective stems from an Eighth Circuit court case titled Taylor v. Armontrout, 894 F.2d 961; where a prisoner’s son went to visit, but was denied admission to the facility. The son sued, stating that visitation regulations gave him a liberty interest in visiting. The visitation regulations provided that visitation lists shall be approved by the institution of designate in accordance with the individual prisoner’s needs or choice. The persons who appear on the visitation lists shall be allowed to visit. The court in this case held that mandatory language created a constitutionally protected right for the son, who was on the prisoner’s visitation list.
The Alaska DOC provides a visitation list application to its prisoners, who in-turn sends the completed application to the Commissioner of the Department of Corrections for approval. Alaska DOC Policy and Procedure (P-n-P) 810.2130 all contain mandatory language for visitation. These AAC’s, AS’s, and P-n-P’s are older than the Supreme Court decision in Brandon. So, Alaska citizens have liberty interest in visitation already in place. There has simply been no one to argue it from that perspective. There is no case law or Alaska Supreme Court opinion pertaining to whether or not Alaska citizens who appear on a prisoner’s visitation list retain the liberty interests in visitation that is protected by the Alaska Constitution.
However, there is one case being litigated in the courts under Carlson v. Renkes, 3AN-03-12351; where an Alaska Native is raising, as one of his issues, his family’s right to access him for visitation. He argues that, his family’s right to access him for visitation is greater than his right to receive them as visitors because they are free citizens living under Alaska’s Constitution. His family’s right at Alaska’s Constitutional Article I, Section I, Equal Rights and Opportunities Clause; guarantee them the right to participate in his rehabilitation through visitation and their right at Alaska’s Constitutional Article I, Section 7, Liberty Interests; in visitation were triggered when the Alaska DOC sent him to an out-of-state, private for profit prison in Arizona.
When the Alaska DOC sent the 600 plus Alaskan prisoners to the out-of-state, private for profit prison in Arizona, they may have deprived all Alaska citizens who appear on the Alaska prisoner’s visitation lists of the liberty interests that Alaska’s AAC’s, AS’s, and P-n-P’s have created. If this is so, then those Alaska citizens appearing on Alaska prisoners’ visitation lists and their liberty interests in visitation may have been triggered.
One Alaska citizen or a coalition of Alaska citizens may bring suit to correct this deprivation of this liberty interest in visitation. Alaska citizens have a right to be heard as to that issue and may seek instauration of that liberty interest through the judicial system. Shymeka L. Hunter, in her law review note, stated that the single decision in Brandon v. Alaska DOC might not be enough to protect the constitutional rights of all state citizens. The instauration of this liberty interest in visitation for the Alaskan citizens would assure each incarcerated Alaskan of the fact that their family’s, relative’s, and friend’s liberty interests in visitation would prevent their transfer to an out-of-state prison; private for profit or otherwise.
William Howarth CCA/FCC 12-12-05