Opinion No. (1990) ( 1990 )

ATTORNEY GENERAL HENRY HAS ASKED THAT I REVIEW AND MAKE AN APPROPRIATE RESPONSE TO YOUR LETTER RELATING TO THE ISSUE OF HOUSING PRISON INMATES. IT DOES NOT APPEAR, HOWEVER, THAT IT IS EITHER NECESSARY OR APPROPRIATE THAT AN OFFICIAL, PUBLISHED RESPONSE BE PROVIDED DUE TO THE FACT THAT THE LAW RELATIVE TO YOUR QUESTION IS CLEAR AND UNAMBIGUOUS AND DOES NOT REQUIRE THE FORMALITY OF A PUBLISHED OPINION.

IN YOUR LETTER, YOU ASK FOR AN OPINION ON THE QUESTION: IS IT LEGAL FOR OUR STATE TO ENTER INTO A CONTRACT WITH A FOREIGN COUNTRY TO HOUSE OUR PRISONERS FOR THE TERM OF THEIR SENTENCE.

THE UNITED STATES CONSTITUTION ANTICIPATED THE POSSIBILITY OF STATES CONTRACTING WITH FOREIGN GOVERNMENTS, AND DEPRIVED THE STATES OF ANY RIGHT TO DO SO BY STATING:

"NO STATE SHALL, WITHOUT THE CONSENT OF CONGRESS, LAY ANY DUTY OF TONNAGE, KEEP TROOPS, OR SHIPS IN A TIME OF WAR OR PEACE, ENTER INTO ANY AGREEMENT OR COMPACT WITH ANOTHER STATE OR WITH A FOREIGN POWER, OR ENGAGE IN WAR, UNLESS ACTUALLY INVADED, OR IN SUCH IMMINENT DANGER AS WILL NOT ADMIT OF DELAY." U.S. CONST., ART. I 10, C1.3 (EMPH. ADDED)

A STATE MAY NOT ENTER INTO A CONTRACT WITH A FOREIGN COUNTRY WITHOUT SPECIFIC APPROVAL BY THE UNITED STATES CONGRESS. SEE LA E ONTZRIO LAND DEVELOPMENT AND BEACH PROTECTION V. FEDERAL POWER COMMISSION, 212 F 2D 227 (1954) CERT. DEN.347 U.S. 1015, 98 L ED 1138, 74 S CT 871. OKLAHOMA RECOGNIZES THE SUPREMACY OF THIS FEDERAL PROVISION IN ARTICLE I, SECTION 1 OF THE STATE CONSTITUTION:

"THE STATE OF OKLAHOMA IS AN INSEPARABLE PART OF THE FEDERAL UNION, AND THE CONSTITUTION OF THE UNITED STATES IS THE SUPREME LAW OF THE LAND." OKLA. CONST., ART. I 1

THEREFORE, IT IS MY OPINION THAT OKLAHOMA COULD NOT LEGALLY ENTER INTO A CONTRACT WITH A FOREIGN COUNTRY TO HOUSE PRISONERS FOR THE BALANCE OF THEIR TERM WITHOUT THE APPROVAL OF THE UNITED STATES CONGRESS.

YOUR QUESTION ALSO RAISES SERIOUS CONSTITUTIONAL ISSUES RELATING TO DUE PROCESS RIGHTS, CRUEL AND UNUSUAL PUNISHMENT, AND OTHER INDIVIDUAL RIGHTS WHICH NEED NOT BE ADDRESSED IN LIGHT OF ARTICLE I SEC 10, CL 3, OF THE UNITED STATES CONSTITUTION DISCUSSED ABOVE. AMEND 8/AMEND 14

(DOUGLAS B. ALLEN)