State of Alaska, Department of Corrections v. Trevor Stefano

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
DEPARTMENT OF CORRECTIONS, ) Supreme Court No. S-17892
)
Petitioner, ) Superior Court No. 3AN-19-09950 CI
)
v. ) OPINION
)
TREVOR STEFANO, ) No. 7616 – September 2, 2022
)
Respondent. )
)
Petition for Review from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Peter R.
Ramgren, Judge.
Appearances: Anna Jay, Assistant Attorney General,
Anchorage, and Treg R. Taylor, Attorney General, Juneau,
for Petitioner. Trevor J. Stefano, pro se, Anchorage,
Respondent. Emily L. Jura, Assistant Public Defender, and
Samantha Cherot, Public Defender, Anchorage, for Amicus
Curiae Public Defender Agency.
Before: Winfree, Maassen, Carney, and Borghesan, Justices.
[Bolger, Chief Justice, not participating.]
BORGHESAN, Justice.
I. INTRODUCTION
The Department of Corrections (DOC) allows some inmates to serve a
portion of their prison sentence outside a correctional facility while wearing electronic
monitoring equipment. Inmates serving a sentence on electronic monitoring live and
work in the community, but are subject to restrictions on movement and conduct. If an
inmate violates those restrictions, DOC may return the inmate to prison.
This case presents a jurisdictional question: does the superior court have
jurisdiction to hear an appeal of DOC’s decision to remove an inmate from electronic
monitoring and return the inmate to prison? Within that jurisdictional question is a more
fundamental question: is DOC’s decision subject to the constitutional guarantee that
“[n]o person shall be deprived of . . . liberty . . . without due process of law?”1
We hold that due process applies. Although we reject the argument that
removal from electronic monitoring and remand to prison implicates the constitutional
right to rehabilitation, as the inmate in this case argues, we conclude that serving a
sentence on electronic monitoring affords a limited but constitutionally protected degree
of liberty, akin to parole. Just as “a parolee may not be deprived of his limited liberty
without due process of law,”2 an inmate serving a sentence on electronic monitoring may
not be returned to prison without safeguards to ensure that liberty is not wrongly taken
away.
Nevertheless we hold that the superior court did not have appellate
jurisdiction to review DOC’s decision in this case. Appellate review of an agency’s
decision is possible only when the decision is the product of an adjudicative process in
which evidence is produced, law is applied, and an adequate record is made. DOC’s
decisional process in this case was not an adjudicative process and did not create a record
1
Alaska Const. art. I, § 7.
2
Bailey v. State, Dep’t of Corr., Bd. of Parole, 224 P.3d 111, 116 (Alaska
2010).
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that permits appellate review.3 We therefore remand this case to the superior court to
convert this case from an appeal to a civil action so that the parties can create the record
necessary for judicial review of DOC’s decision.
II. FACTS AND PROCEEDINGS
A. Facts
Trevor Stefano was found guilty of second-degree murder at the age of 22;
he was sentenced to 40 years in prison with 15 years suspended. In February 2018, after
serving roughly twelve years of his sentence, he applied to serve the remainder of his
sentence on electronic monitoring. Under DOC Policies & Procedures 903.06, which
then governed the electronic monitoring program, an incarcerated person was normally
ineligible for electronic monitoring if the person had more than three years remaining to
serve.4 But there was an exception to the three-year rule for someone who “exhibit[ed]
exceptional rehabilitative progress.” DOC determined that Stefano had demonstrated
exceptional rehabilitative progress and in May 2018 released him on electronic
monitoring in Fairbanks. Stefano’s electronic monitoring agreement with DOC required
3
See Welton v. State, 315 P.3d 1196, 1199 (Alaska 2014) (holding superior
court lacked appellate jurisdiction to review DOC’s denial of prisoner grievance because
grievance process “lacked several important hallmarks of an adjudication” and produced
only “limited paper record . . . inadequate for appellate review”).
4
In March 2021 DOC Policies and Procedures 903.06 was repealed and
replaced by Policies and Procedures 818.10. DOC, POLICIES AND PROCEDURES 903.06:
NOTICE OF REPEAL (2021), https://doc.alaska.gov/pnp/pdf/903.06.pdf. The relevant
language of the policy in effect at the time of Stefano’s removal is largely similar to that
of the policy currently in effect. DOC, POLICIES AND PROCEDURES 903.06: COMMUNITY
ELECTRONIC MONITORING (2017), https://web.archive.org/web
/20191230020037/https://doc.alaska.gov/pnp/pdf/903.06.pdf; DOC, POLICIES AND
PROCEDURES 818.10: SENTENCED ELECTRONIC MONITORING (2020), https://doc.alaska.
gov/pnp/pdf/818.10.pdf.
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him to obtain prior approval from DOC before friends, family members, and associates
could visit his residence and before having contact with a convicted felon.
Stefano got married while in Fairbanks; he and his wife later moved to
Anchorage. In early July 2019 Anchorage Police Department (APD) officers visited
Stefano’s apartment in response to a report of domestic violence. After investigating, the
officers arrested Stefano. The officers also observed that Stefano’s brother Connor was
at Stefano’s home. Connor had previously been convicted of a felony but was no longer
in DOC custody. The APD officers reported Connor’s presence to a probation officer.
Stefano’s probation officer prepared an incident report. The report first
cited Stefano for committing a “high-moderate infraction” as defined in 22 Alaska
Administrative Code (AAC) 05.400(c)(19) (2018) by “refusing to obey a direct order of
a staff member.” It then stated that Stefano had “violated the Terms and Conditions of
the Anchorage Electronic Monitoring (EM) program and has been terminated from the
program.” It explained that Stefano had violated term 9, prohibiting unauthorized
contact with friends and family members, and term 21, prohibiting unauthorized contact
with convicted felons. With respect to Stefano’s termination from electronic monitoring,
the report stated:
Correspondence . . . indicated that [criminal charges against
Stefano] had been dropped. I requested and reviewed the
related court documents which indicated the Municipal
Attorney had declined to prosecute. Collateral information
indicated that the victim had requested the charge not be
pursued against [inmate] Stefano. I determined that [inmate]
Stefano had initiated contact with the victim from the jail
shortly after he was booked; I requested and reviewed copies
of some of the recordings. In short, the recordings revealed
that [inmate] Stefano manipulated and directed the victim to
request the charge be dropped. . . . The victim indicated that
what she had told the police was true and she was fearful of
him and worried that he would kill her or have her killed. . . .
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Additional recordings are pending review however,
considering the totality of the situation it is my professional
opinion that the victim[’]s concern[s] for her safety are
adequately supported. My opinion is supported by the facts
of the above incident, the victim[’]s statements to police, the
injury documented in the report, the recordings reviewed
after [inmate] Stefano’s booking and both offender[s’]
history. Ultimately the behaviors demonstrated by [inmate]
Stefano are inconsistent with the expectations, directives and
Terms and Conditions of the [electronic monitoring]
program.
B. Administrative Proceedings
Stefano appealed his termination from electronic monitoring. His appeal
was denied by a probation officer, who explained that: (1) Stefano had been given
permission to have only telephonic contact, not in-person contact, with his brother
Connor; and (2) although the domestic violence charges were dismissed, the officer had
heard Stefano’s “inappropriate statements to [his] wife” in the recorded calls from prison.
Stefano requested a classification hearing from DOC, asserting that he had
a right to review of his removal from electronic monitoring because it is a rehabilitative
program. DOC denied him a classification hearing, maintaining that “[electronic
monitoring] is not a rehabilitati[ve] program.”
Stefano received a disciplinary hearing on the (c)(19) infraction (“refusing
to obey a direct order of a staff member”). Stefano requested that the recorded phone
calls between him and his wife be entered into evidence, but the hearing officer denied
his request, stating: “I don’t think the phone recordings have anything to do with you
violating a (c)(19) or not violating a (c)(19).” The hearing officer also refused to call
Stefano’s requested witnesses: Stefano’s wife, his brother, and the arresting APD
officer. The hearing officer said that his purpose at the hearing was “to figure out . . . if
[Stefano] violated those two conditions” [of the electronic monitoring program] by
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having his brother at his residence, and to determine whether Stefano “violated this
infraction, (c)(19).” At the end of the hearing the hearing officer found Stefano guilty
of the infraction and sentenced him to 30 days in punitive segregation.
Stefano appealed the disciplinary decision that same day. He listed eight
points in his appeal statement, including that he “was removed from [the] DOC
[electronic monitoring] rehabilitative program with no classification hearing and no
consideration to [his] rehabilitation.” The superintendent of the Anchorage Correctional
Complex affirmed the disciplinary decision, addressing each of Stefano’s points in turn.
Regarding Stefano’s termination from the electronic monitoring program without a
classification hearing, the superintendent wrote only “[t]his is up to [the electronic
monitoring program].”
Stefano subsequently reapplied to electronic monitoring. After his
application was denied, he appealed and was again denied. The denial stated: “Based
on the totality of your violations, to include the information included in the [(c)(19)
incident report], I see no reason to allow you to reapply for [electronic monitoring]
during the remainder of your incarceration.”
C. Superior Court Proceedings
Stefano appealed the disciplinary action to the superior court. In his points
on appeal he claimed that DOC had improperly refused to provide him with the evidence
against him, refused to allow him to call witnesses in his defense, and prevented him
from having his attorney at the hearing. He also claimed that DOC had “failed to follow
[its] own policy and procedure regarding the electronic monitoring program and
improperly discharged Stefano from that program.” Stefano later supplemented his
points on appeal, adding a claim that his removal from electronic monitoring had violated
his constitutional rights to due process and to rehabilitation.
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After briefing and oral argument, the superior court issued a written
decision in Stefano’s favor. It first addressed DOC’s argument that the superior court
lacked jurisdiction over Stefano’s termination from electronic monitoring. The superior
court acknowledged that its appellate jurisdiction extends only to cases involving “an
adjudicative record capable of review.” The court concluded that Stefano’s termination
from electronic monitoring met this condition:
Stefano was terminated from the [electronic monitoring]
program and “written up” for his disciplinary infraction in a
single document prepared by [his probation officer]. These
incidents apparently stemmed from the same factual basis and
involved similar considerations. Stefano immediately
requested a classification hearing, and that request was
denied. Instead, Stefano received a disciplinary hearing, the
recording of which has been presented to this court as part of
the record on appeal. The process Stefano received at that
hearing is documented for this court, as are the forms Stefano
submitted to DOC before and after that process. Stefano’s
claims relating to his termination from the [electronic
monitoring] program relate to the sufficiency of the process
he received from DOC before and after his termination from
the program. From this detailed record, the court is able to
review the process Stefano received and rule on these claims
on the merits. Stefano is not required to re-litigate these
issues in a separate proceeding.
The court then concluded that electronic monitoring is a rehabilitative
program and that therefore Stefano was entitled to “some level of due process” upon
being removed from electronic monitoring. Yet the court concluded that Stefano had not
received adequate process because he had not been “permitted at his disciplinary hearing
to challenge the basis for his termination from the [electronic monitoring] program.” As
to DOC’s disciplinary ruling, the court held that DOC failed to provide a rationale as to
why it cited Stefano for violating (c)(19) instead of another provision carrying less
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severe consequences that was also applicable to his conduct. It therefore concluded the
disciplinary decision was arbitrary and violated Stefano’s substantive due process rights.
The court vacated both DOC’s decision that Stefano was guilty of violating
22 AAC 05.400(c)(19) and its decision terminating Stefano from electronic monitoring,
remanding for further proceedings. Acknowledging that it lacked authority to order
DOC to reinstate Stefano on electronic monitoring, the court held that “Stefano is entitled
to adequate process (i.e., a classification hearing) prior to his termination from the
program.”
DOC petitioned for review of the superior court’s exercise of appellate
jurisdiction over Stefano’s termination from electronic monitoring. We granted the
petition and ordered full briefing.
III. DISCUSSION
This matter requires us to decide whether the superior court had appellate
jurisdiction to review DOC’s decision to remove Stefano from electronic monitoring.
The appellate jurisdiction of the superior court is established in AS 22.10.020(d), which
provides that “[t]he superior court has jurisdiction in all matters appealed to it
from . . . [an] administrative agency when appeal is provided by law.” There is no statute
providing for appeal of a DOC decision to terminate a person from electronic
monitoring. However, we have held that administrative appeal of a DOC decision is
proper “even when not authorized by statute” if the challenged decision implicates a
“fundamental constitutional right[]” and is made “in an adjudicative proceeding
producing a record capable of review.”5 We therefore consider whether DOC’s decision
to terminate Stefano from the electronic monitoring program meets these criteria.
5
Brandon v. State, Dep’t of Corr., 938 P.2d 1029, 1031-32 (Alaska 1997)
(citing Owen v. Matsumoto, 859 P.2d 1308, 1309 (Alaska 1993); Hertz v. Carothers, 784
P.2d 659, 660 (Alaska 1990); Dep’t of Corr. v. Kraus, 759 P.2d 539, 540 (Alaska 1988)).
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A. Removing A Prisoner From Electronic Monitoring And Remanding
The Prisoner To A Correctional Facility Implicates The Prisoner’s
Fundamental Constitutional Rights.
We first decide whether DOC’s decision to remove Stefano from electronic
monitoring implicated a fundamental constitutional right.6 Two rights are arguably at
issue: the right to rehabilitation and the right to liberty. We assess each in turn.
1. Removal from electronic monitoring does not implicate the
constitutional right to rehabilitation.
a. Our prior decisions shed light on the contours of the
constitutional right to rehabilitation.
Stefano argues that his removal from electronic monitoring implicates his
constitutional right to rehabilitation. To determine when and how that right comes into
play, it is helpful to review our decisions applying it.
We first discussed the constitutional right of rehabilitation in Abraham v.
State.7 In that case, a prisoner argued that treatment for his alcoholism was essential to
his reformation into a law-abiding person, but that this treatment “could not be supplied
within the existing framework of prison programs.”8 We observed that the Alaska
Constitution provides that criminal administration shall be based on “the principle of
reformation” and “the need for protecting the public.”9 “Reformation,” we explained,
“relates to something being done to rehabilitate the offender into a noncriminal member
6
Id.7
585 P.2d 526, 531-33 (Alaska 1978).
8
Id. at 531.
9
Id. at 530 (quoting Alaska Const. art. I, § 12 (amended 1994)). This
constitutional provision was amended in 1994 to add three more principles to guide
criminal administration: community condemnation of the offender, the rights of victims
of crime, and restitution from the offender. Alaska Const. art. I, § 12.
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of society.”10 We concluded that the inmate had “a constitutional right to rehabilitative
treatment particularly with respect to his consumption of alcohol.”11 However, we did
not attempt to define the contours of this right and instead remanded the matter to the
superior court so that “the judiciary can take whatever steps are deemed necessary to
make the constitutional right to reformation a reality.”12
We next addressed the right to rehabilitation in Ferguson v. State,
Department of Corrections.13 In that case an inmate’s participation in the Alaska
Correctional Industries Program, through which he had a job at a meatpacking plant in
Palmer, was terminated after he tested positive for drugs.14 He sued DOC, claiming
among other things that the State had deprived him of his liberty right to participate in
the program without due process.15 Addressing this claim, we reasoned that “prisoners
have an enforceable interest in continued participation in rehabilitation programs” under
the Alaska Constitution.16 We then concluded that “[t]he prison industries program from
which [the inmate] was excluded is a rehabilitation program,” noting that participation
10
Abraham, 585 P.2d at 531.
11
Id. at 533.
12
Id.
13
816 P.2d 134, 139-40 (Alaska 1991).
14
Id. at 136.
15
Id. at 137. The Alaska Constitution provides that “[n]o person shall be
deprived of life, liberty, or property, without due process of law.” Alaska Const. art. I,
§ 7.
16
Ferguson, 816 P.2d at 139.
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was “voluntary, requires application and approval, and confers special privileges.”17
“Since prisoners taking part in [the program] have a protected interest in the program,
their participation cannot be terminated without a measure of due process of law.”18
By contrast, we ruled in Hays v. State that DOC’s decision to remove an
inmate from his job as prison librarian and reassign him to work shoveling snow did not
implicate the right to rehabilitation.19 We reasoned that the inmate “d[id] not have an
enforceable constitutional interest in continued employment as a prison librarian.”20 In
a subsequent unpublished decision, we reasoned that “jobs within the prison entail no
formal training program, specified objectives, or stated rehabilitative components”;
“[t]hese institutional jobs are not part of any rehabilitative program.”21 Therefore,
removing the inmate from his job in the prison laundry “d[id] not raise a fundamental
constitutional question” and “[wa]s not reviewable on appeal.”22
We reached the same conclusion about challenges to the denial of other
benefits or privileges outside of formal rehabilitation programs. In Mathis v. Sauser we
ruled that DOC’s denial of a prisoner’s request to have a computer printer in his cell did
not implicate the right to rehabilitation.23 We reasoned that the inmate “ha[d] not argued
17
Id. at 140.
18
Id.
19
830 P.2d 783, 785 (Alaska 1992).
20
Id.21
Moody v. State, Dep’t of Corr., No. S-12303, 2007 WL 3197938, at *2
(Alaska Oct. 31, 2007).
22
Id.23
942 P.2d 1117, 1124 (Alaska 1997).
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that he [was] involved in any rehabilitative program requiring the use of a printer in his
cell,” nor did he “produce[] any evidence to support the proposition that the policy in
question implicate[d] his rehabilitation.”24 In later unpublished decisions we similarly
concluded that access to a word processor25 and permission to keep hobby and craft
supplies in one’s cell26 do not implicate the right to rehabilitation. And in Antenor v.
State, Department of Corrections we ruled that DOC’s decision to deny a prisoner access
to a certain book on computer programming did not infringe his constitutional right to
rehabilitation in light of the other educational materials and opportunities available to
him in prison.27
Brandon v. State, Department of Corrections presented the right to
rehabilitation in a slightly different context.28 In that case a prisoner sought to challenge
DOC’s decision to transfer him to a facility outside Alaska.29 We concluded that the
prisoner’s challenge was “grounded on a fundamental constitutional right” to
rehabilitation because of the potential to substantially impair his opportunity to have
24
Id.25
Adkins v. Crandell, No. S-7794, 1999 WL 33958768, at *1 (Alaska Jan. 13,
1999).
26
Moody, 2007 WL 3197938, at *2.
27
462 P.3d 1, 19 (Alaska 2020) (“Antenor likewise has not been denied all
rehabilitative opportunities . . . . Denying him access to a specific book, therefore, does
not violate his constitutional right to reformation.”).
28
938 P.2d 1029, 1032 (Alaska 1997).
29
Id. at 1030.
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visitation.30 However, we cautioned that “[o]ur recognition that visitation privileges are
a component of the constitutional right to rehabilitation does not define their required
scope or the permissible limits on their exercise.”31 We established one of these limits
in Larson v. Cooper when we affirmed DOC limitations on physical contact during
visitation.32 We recognized that “[s]ome physical contact may well promote
rehabilitation” but rejected the suggestion that the Alaska Constitution “preclude[s]
prisons from putting reasonable limits on contact visitation of maximum security
prisoners.”33
Finally, in Hertz v. Macomber we held that the constitutional right of
rehabilitation did not give a prisoner the right to challenge particular conditions placed
on his furlough.34 We recognized that “furloughs are explicitly designed to further the
goal of rehabilitation.”35 But we also recognized that “the right to rehabilitation does not
create a right to furlough for all prisoners.”36 We observed that DOC policies tie
prisoners’ furlough eligibility to their classification categories — including community,
minimum, medium, and close custody37 — and that “once in DOC custody, the
30
Id. at 1032 & n.2.
31
Id. at 1032 n.2.
32
90 P.3d 125, 133-34 (Alaska 2004).
33
Id. at 133 (discussing article 1, section 12 of the Alaska Constitution).
34
297 P.3d 150, 157-58 (Alaska 2013).
35
Id. at 157.
36
Id.37
DOC, POLICIES AND PROCEDURES 700.01: PRISONER CLASSIFICATION
(2014), https://doc.alaska.gov/pnp/pdf/700.01.pdf.
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‘decisions of prison authorities relating to classification of prisoners are completely
administrative matters regarding which the inmate has no due process rights beyond the
expectation of fair and impartial allocation of resources.’ ”38 By this logic, DOC’s
classification decisions do not implicate prisoners’ right to rehabilitation for purposes of
judicial review just because classification has a downstream effect on rehabilitative
opportunities.
Considering these decisions together, the following rules emerge. A
prisoner has a protected interest in continued participation in formal rehabilitative
programs,39 and participation cannot be terminated without some measure of due
process.40 Outside of participation in formal rehabilitation programs, denial or
withdrawal of a privilege or benefit does not implicate the right to rehabilitation unless
the benefit has some clear connection to rehabilitation and its denial leaves the inmate
without access to comparable rehabilitative opportunities.41 And DOC decisions about
38
Hertz, 297 P.3d at 157 (quoting McGinnis v. Stevens, 543 P.2d 1221, 1237
(Alaska 1975)).
39
“Formal rehabilitative program” is defined infra at note 51 and
accompanying text.
40
Ferguson v. State, Dep’t of Corr., 816 P.2d 134, 140 (Alaska 1991).
41
See, e.g., Hays v. State, 830 P.2d 783, 785 (Alaska 1992) (holding that job
reassignment from prison librarian to snow shoveler did not implicate right to
rehabilitation); Antenor v. State, Dep’t of Corr., 462 P.3d 1, 19 (Alaska 2020) (holding
that denial of access to specific book did not implicate right to rehabilitation in light of
other educational materials and opportunities available to inmate); Adkins v. Crandell,
No. S-7794, 1999 WL 33958768, at *1 (Alaska Jan. 13, 1999) (ruling that denial of
access to word processor did not implicate right to rehabilitation when inmate “was
allowed to participate in post-secondary education as part of his rehabilitation,” was able
to maintain passing grades without word processor, and “had access to a dictionary
and/or thesaurus”).
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a prisoner’s classification generally do not implicate the right to rehabilitation even if
they may affect rehabilitative opportunities: classification categories are not formal
rehabilitative programs, nor do they typically leave prisoners without access to
rehabilitative opportunities. However, if a classification decision will substantially
impair access to rehabilitative opportunities — such as by making visitation practically
impossible — then it will implicate the right to rehabilitation and trigger judicial
review.42
In light of these rules, we next consider whether electronic monitoring
implicates the right to rehabilitation as either (1) a formal rehabilitative program or (2) a
privilege or benefit with a clear connection to rehabilitation, the denial of which leaves
the prisoner without access to comparable rehabilitative opportunities.
b. Electronic monitoring is not a formal rehabilitative
program.
The first question is whether electronic monitoring is formal rehabilitative
programming. The Public Defender Agency, which has briefed this court as amicus
curiae,43 urges us to adopt as a test for determining whether a program is rehabilitative
the three factors we considered in Ferguson. In that case we found that a prison
industries program, which gave employment opportunities to prisoners, was
rehabilitative because it was “voluntary, require[d] application and approval, and
confer[red] special privileges.”44 But these three factors have not been consistently
applied as a “test” since Ferguson was decided thirty years ago and encompass programs
42
See Brandon v. State, Dep’t. of Corr., 938 P.2d 1029, 1032 & n.2 (Alaska
1997).
43
We thank the Public Defender Agency for its helpful briefing on this
matter.
44
816 P.2d at 140.
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that do not fit even the dictionary definition of “rehabilitative.”45 For instance, DOC
Policies and Procedures 815.04 VII.D states that “Arts and Craft projects approved for
work in the cell or living areas are limited to those approved by the Superintendents or
designee,”46 indicating that keeping arts and crafts materials in one’s cell is “voluntary,
requires application and approval, and confers special privileges.”47 But in an
unpublished case decided 16 years after Ferguson, we held that “[t]he loss of in-cell
hobby and craft privileges . . . does not raise a fundamental constitutional question.”48
Instead a rehabilitative program is one that is designed to address “specific
problems that impelled the prisoner’s antisocial conduct.”49 The constitutional principle
of reformation “relates to something being done to rehabilitate the offender into a
45
See, e.g., Rehabilitation, BLACK’S LAW DICTIONARY (11th ed. 2019)
(defining rehabilitation as “[t]he process of seeking to improve a criminal’s character and
outlook so that he or she can function in society without committing other crimes”).
46
DOC, POLICIES AND PROCEDURES 815.04: RECREATION AND PRISONER
ACTIVITIES (2014), https://doc.alaska.gov/pnp/pdf/ 815.04-Arts.pdf.
47
See Ferguson, 816 P.2d at 140.
48
Moody v. State, Dep’t of Corr., No. S-12303, 2007 WL 3197938, at *2
(Alaska Oct. 31, 2007).
49
Brandon v. State, Dep’t of Corr., 938 P.2d 1029, 1034 (Alaska 1997)
(Rabinowitz, J., dissenting in part). In adopting Justice Rabinowitz’s definition of a
rehabilitative program from his partial dissent in Brandon, we do not undercut the court’s
decision in that case. Justice Rabinowitz believed that the right to rehabilitation attached
only to formal programming. Id. at 1034-35. The court disagreed, ruling that the right
to rehabilitation may also be implicated by administrative decisions unrelated to
rehabilitative programming if those decisions substantially impair an inmate’s
opportunity for rehabilitation. Id. at 1031-32 (majority opinion). Nothing in our
decision today calls the court’s decision in Brandon into question. We merely endorse
Justice Rabinowitz’s definition of a formal rehabilitative program.
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noncriminal member of society,”50 so a rehabilitative program is one designed to address
the factors that may lead to criminal behavior, such as addiction, lack of remunerative
skills, lack of education, or deviant proclivities.51 To determine whether a program is
rehabilitative, we have considered both the statutory framework for these programs52 and
DOC’s policies and procedures governing them.53
The existing statutory framework does not suggest that electronic
monitoring is a rehabilitative program.54 The statute governing electronic monitoring,
50
Abraham v. State, 585 P.2d 526, 531 (Alaska 1978).
51
See Brandon, 938 P.2d at 1034 (Rabinowitz, J., dissenting in part)
(“[F]ormal [rehabilitative] program[s] address[] . . . the specific problems that impelled
the prisoner’s antisocial conduct [such as] alcohol abuse . . . [and] a lack of job skills.”).
52
See, e.g., Hertz v. Macomber, 297 P.3d 150, 157 (Alaska 2013) (citing to
language of statute governing furloughs to hold that “furloughs are explicitly designed
to further the goal of rehabilitation”).
53
See, e.g., Moody, 2007 WL 3197938, at *2 (noting that DOC Policies and
Procedures 808.04 lists “employment in Alaska Correctional Industries programs,” but
not intra-prison jobs, as rehabilitative).
54
One thing that does seem clear from the statutory text is the legislative
intent that DOC’s decision to take a prisoner off electronic monitoring not be subject to
judicial review. The statute provides that a decision to place a prisoner on electronic
monitoring “does not create a liberty interest in that status for the prisoner.”
AS 33.30.065(c). This proviso suggests the legislature did not wish electronic
monitoring decisions to be subject to due process. However, if the electronic monitoring
program is in fact rehabilitative — implicating the constitutional right to rehabilitation
that cannot be deprived without due process — the legislature cannot simply override
constitutional protections by declaring otherwise. See Alaska Pub. Int. Rsch. Grp. v.
State, 167 P.3d 27, 43 (Alaska 2007) (“The judiciary alone among the branches of
government is charged with interpreting the law.” (citing Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 177 (1803)); Marbury, 5 U.S. at 177 (“It is emphatically the province
and duty of the judicial department to say what the law is.”)). In fact, the legislative
(continued...)
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AS 33.30.065, provides little detail about the content of the program or the procedures
for administering it. Notably, the statutory text governing furloughs55 — which like
electronic monitoring permit inmates to serve a period of their sentence outside prison
walls — reflects a clear intent to use furloughs for rehabilitation, permitting them for
reasons such as “counseling and treatment for alcohol or drug abuse,” employment,
education, making “preparations for release,” or “any other rehabilitative purpose.”56
There is no similar statement of rehabilitative purpose for the electronic monitoring
program. The statute does require the commissioner to consider “the prospects for the
prisoner’s rehabilitation” in deciding whether an individual may participate in electronic
monitoring.57 Yet this proviso does not clearly suggest the program is intended to be
rehabilitative. It may instead indicate an intent that only prisoners unlikely to re-offend
— i.e., prisoners with good prospects for rehabilitation — should be released on
54
(...continued)
history indicates that the legislature itself knew that this statement was likely ineffective.
The bill sponsor’s staffer stated: “[W]hether the legislature says it or intends it, the court
will decide whether there is a liberty interest or not.” Minutes, H. Jud. Standing Comm.
Hearing on H.B. 272, 20th Leg., 2d Sess. Tape 98-23, Side A, at 274 (Feb. 23, 1998)
(testimony of Kevin Jardell, Legislative Administrative Assistant to Rep. Joe Green),
http://www.akleg.gov/basis/Meeting/Text?Meeting=HJUD%
201998-02-23%2013:07:00. The staffer added that “[t]he whole statement is somewhat
superfluous, when you really get down to the legal dynamics of it.” Id. at 368. In any
event, DOC does not argue that this proviso in AS 33.30.065(c) precludes us from ruling
that removal from electronic monitoring implicates fundamental constitutional rights.
55
AS 33.30.901 defines furlough as “an authorized leave of absence from
actual confinement for a designated purpose and period of time.”
56
AS 33.30.101(a).
57
AS 33.30.065(b)(2).
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electronic monitoring. In other words, this proviso serves the goal of protecting the
public at least as much as it serves the goal of reformation.
The legislative history suggests that the legislature’s primary purpose in
creating the electronic monitoring program was “to provide the Department of
Corrections an additional tool to help ease overcrowding and relieve some budget
problems.”58 The bill file contains a few references to rehabilitation59 and to related
concepts like reducing recidivism,60 “promot[ing] a crime-free lifestyle,”61 and keeping
families together.62 Ultimately, neither the statutory text nor legislative history provided
strong support for the notion that the electronic monitoring program, at least in its current
form, is a program designed to address the specific problems that lead to criminal
behavior.
We next turn to DOC’s policies and procedures governing electronic
monitoring, which shed light on whether DOC operates the program as a rehabilitative
58
Minutes, H. Jud. Standing Comm. Hearing on H.B. 272, 20th Leg., 2d Sess.
Tape 98-19, Side B, at 595 (Feb. 18, 1998) (testimony of Kevin Jardell, Legislative
Administrative Assistant to Rep. Joe Green), http://www.akleg.gov/basis/Meeting/
Text?Meeting=HJUD%201998-02-18%2013:05:00.
59
See Harry N. Boone, Jr., Electronic Home Confinement: Judicial and
Legislative Perspectives, PERSPS., Fall 1996, at 18, 20-23 (available in H. Fin. Comm.
bill file); Written Testimony of Sharon L’Heureux, Fairbanks Native Ass’n (Apr. 7,
1998) (available in H. Fin. Comm. bill file).
60
See Boone, supra note 59, at 23; ADMIN. OF JUST. SERVS., DEVELOPMENT
OF AN AGENCY BASED SELF-EVALUATION INSTRUMENT FOR ELECTRONIC MONITORING
PROGRAMS 9 (1996) (available in H. Fin. Comm. bill file).
61
See
NEB. PROB. SYS., INTENSIVE SUPERVISION PROBATION
GOALS/OBJECTIVES, at 3 (available in H. Fin. Comm. bill file).
62
See Boone, supra note 59, at 21.
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program. At first blush, aspects of these policies and procedures suggest the program is
rehabilitative. The first line of the DOC Policies & Procedures governing electronic
monitoring states: “It is the policy of the Department of Corrections (DOC) to utilize
electronic monitoring (EM) as a tool to effectively manage offenders for their successful
re-entry and transition to the community.”63 “Successful re-entry and transition to the
community” is clearly a rehabilitative purpose. Further, unless an exception is obtained,
the electronic monitoring program requires participants to obtain education or
employment, both of which we have previously indicated may foster rehabilitation.64 By
allowing participants to live with partners or family members and hold outside
employment, electronic monitoring also facilitates contact with the community, which
we recognized in Brandon was a significant component of rehabilitation.65 At the same
time, electronic monitoring participants are prohibited from interacting with certain
63
DOC, POLICIES AND PROCEDURES 818.10: SENTENCED ELECTRONIC
MONITORING (2020), https://doc.alaska.gov/pnp/p df/818.10.pdf; see supra note 4.
64
Ferguson v. State, Dep’t of Corr., 816 P.2d 134, 140 (Alaska 1991) (“The
prison industries program from which Ferguson was excluded is a rehabilitation
program.”); Adkins v. Crandell, No. S-7794, 1999 WL 33958768, at *1 (Alaska Jan. 13,
1999) (“It is clear from Adkins’s complaint that he was allowed to participate in post­
secondary education as part of his rehabilitation.”).
65
Brandon v. State, Dep’t of Corr., 938 P.2d 1029, 1032 n.2 (Alaska 1997)
(quoting sources suggesting that visitation “is the most direct link for the inmate with the
world left behind,” “is indispensable to any realistic program of rehabilitation,” and
facilitates “the ultimate rehabilitation of the prisoner by strengthening his ties with the
‘free world’ ”; that “[p]reservation of the family unit is important to the reintegration of
the confined person”; and that “[s]trained ties with family and friends increase the
difficulty of making the eventual transition back to the community”).
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people, presumably to protect them from bad influences and thus further their
rehabilitation.66
Yet allowing a prisoner to serve a sentence on electronic monitoring does
not address specific behaviors or problems that lead to criminal conduct any more than
classification at a particular custody level. Although serving a sentence on electronic
monitoring instead of inside a correctional facility allows a prisoner greater freedom, so
does serving a sentence in a minimum rather than a maximum security facility. Apart
from the freedom to live outside a correctional facility, the purpose, rules, and
opportunities of electronic monitoring are similar in kind to the purpose, rules, and
opportunities — available in varying degrees — at the different custody levels in prison
(from the most restrictive “close custody” status to the least restrictive “community
custody” status).67 And, as discussed above, classification decisions to move a prisoner
from one custody level to another generally do not implicate the right to rehabilitation.68
Take, for example, DOC’s stated purpose for its electronic monitoring
program: “[T]o effectively manage offenders for their successful re-entry and transition
66
See DOC, FORM 818.10B: ELECTRONIC MONITORING TERMS AND
CONDITIONS (2022), https://doc.alaska.gov/pnp/pdf/ 818.10b.pdf?new (“I will obtain
prior approval from [electronic monitoring] officers before having visits from friends,
family members, and/or associates to my residence with the exception of unannounced
visits . . . . I agree to have no non-employment related, non-reentry related contact with
a convicted felon without the permission of [electronic monitoring] officers.”).
67
See DOC, POLICIES AND PROCEDURES 700.01: PRISONER CLASSIFICATION
(2014), https://doc.alaska.gov/pnp/pdf/700.01.pdf (describing the four custody levels and
explaining that “[t]he custody status assigned to a prisoner is based on . . . the
classification process”).
68
Hertz v. Macomber, 297 P.3d 150, 157 (Alaska 2013) (discussing McGinnis
v. Stevens, 543 P.2d 1221, 1237 (Alaska 1975)).
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to the community.”69 Although this sounds rehabilitative, so does the stated policy of
DOC’s classification program:
Prisoners shall be classified to the least restrictive custody
level based on the assessment of behavioral risk factors,
supervision needs, rehabilitative needs, and institutional
behavior. . . . The classification process shall identify
prisoners’ rehabilitative and reentry requirements that
promote public safety and provides for the responsible
reformation and reintegration of offenders.[70]
In fact, almost every DOC program or policy ultimately serves the constitutional goals
of protecting the public and reforming the offender.71 Yet we have held that not every
DOC policy implicates the right to rehabilitation.72 The fact that a correctional program
or policy has an ultimate purpose of ensuring that offenders may successfully reenter
society does not mean that a program is a formal rehabilitative program in which the
offender has a protected interest in continued participation.
Consider also electronic monitoring’s work requirement. The requirement
that prisoners serving a sentence on electronic monitoring maintain employment or
pursue education unless granted an exception is comparable to the rule that prisoners
serving a sentence within a correctional facility must work when ordered to and may be
69
DOC, POLICIES AND PROCEDURES 818.10: SENTENCED ELECTRONIC
MONITORING; see supra note 4.
70
DOC, POLICIES AND PROCEDURES 700.01: PRISONER CLASSIFICATION.
71
Alaska Const. art. I, § 12 (“Criminal administration shall be based upon . . .
the need for protecting the public . . . and the principle of reformation.”).
72
See, e.g., Hertz, 297 P.3d at 157-58 (“[O]nce in DOC custody, the
‘decisions of prison authorities relating to classification of prisoners are completely
administrative matters regarding which the inmate has no due process rights . . . .’ ”
(quoting McGinnis, 543 P.2d at 1237)).
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punished for refusing to do so.73 Under DOC policies, employment within a correction
facility includes “academic and vocational education.”74 So the requirement to obtain
employment or education is not unique to electronic monitoring, but applies generally
to prisoners across the board. And although our decisions have distinguished between
work outside a prison through the Correctional Industries Program and jobs inside a
prison, the feature that distinguished the two for purposes of the right to rehabilitation
was that “jobs within the prison entail no formal training program, specified objectives,
or stated rehabilitative components” and “are not part of any rehabilitative program.”75
We have not been provided any evidence suggesting that the requirement to obtain
education or employment while on electronic monitoring includes any formal training
program or stated rehabilitative components. Thus we cannot conclude that there is a
rehabilitative aspect of the electronic monitoring program’s work requirement that is
distinct from the work requirements applicable to all prisoners.
Finally, the electronic monitoring program resembles an extension, in many
respects, of the in-custody classification system. DOC must consider a prisoner’s
prospects for rehabilitation for both in-custody classification and release on electronic
73
AS 33.30.191(c) (“A prisoner who refuses to participate in productive
employment inside a correctional facility when directed under this section is subject to
disciplinary sanctions imposed in accordance with regulations adopted by the
commissioner.”); DOC, POLICIES AND PROCEDURES 812.10: PRISONER EMPLOYMENT
(1995), https://doc.alaska.gov/pnp/pdf/812.10.pdf (same).
74
DOC, POLICIES AND PROCEDURES 812.10: PRISONER EMPLOYMENT
(“[P]roductive employment includes . . . academic and vocational education.”).
75
Moody v. State, Dep’t of Corr., No. S-12303, 2007 WL 3197938, at *2
(Alaska Oct. 31, 2007).
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monitoring.76 Classification at a particular custody level and release on electronic
monitoring both require prisoners to follow a host of rules and restrictions on movement
that simultaneously protect others and promote orderly behavior.77 Although release on
electronic monitoring facilitates contact with family that is important to rehabilitation,
prisoners at all custody levels are allowed visitation with family and community
members.78 And in both cases, visits are subject to approval from DOC.79 In short, the
electronic monitoring program is comparable to a custody classification; the difference
is largely in the degree of freedom. Electronic monitoring, by allowing the prisoner to
live outside of prison, is essentially the least restrictive form of custody, apart from being
released on parole (which does not typically entail the use of electronic monitoring
equipment). Although electronic monitoring affords the prisoner the opportunity to
76
Compare AS 33.30.065(b)(2) (requiring DOC to consider, in deciding
whether to allow prisoner to serve sentence on electronic monitoring, “the prospects for
the prisoner’s rehabilitation”), with DOC, POLICIES AND PROCEDURES 700.01: PRISONER
CLASSIFICATION (requiring DOC to “identify prisoners’ rehabilitative and reentry
requirements that promote public safety and provides for the responsible reformation and
reintegration of offenders” and to classify prisoner at least restrictive custody level based
on assessment of “rehabilitative needs” among other factors).
77
For example, prisoners released on electronic monitoring must obtain prior
approval from DOC before having visits from friends, family members, or associates at
the prisoner’s residence; “remain in [the] approved residence at all times, except for
those hours approved by the [electronic monitoring] officers to fulfill employment,
school/training, medical/treatment programs, and/or special authorized leave”; not
consume or possess alcoholic beverages or controlled substances; and submit to a search
of prisoner’s person, property, residence, or vehicle upon request by DOC staff. DOC,
POLICIES AND PROCEDURES 818.10b: SENTENCED ELECTRONIC MONITORING.
78
DOC, POLICIES AND PROCEDURES 810.02: VISITATION (2013), https://doc.
alaska.gov/pnp/pdf/810.02.pdf.
79
See id.; DOC, POLICIES AND PROCEDURES 818.10b: SENTENCED
ELECTRONIC MONITORING.
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engage in rehabilitative programming (just like prisoners confined in a correctional
facility), we have not been presented with evidence that the electronic monitoring
program directly targets specific problems that cause criminal behavior. Therefore the
electronic monitoring program, in its current form, is not a formal rehabilitative program
to which a liberty interest attaches.
c. Removal from electronic monitoring does not
substantially impair a prisoner’s access to rehabilitative
opportunities.
Removal from a formal rehabilitative program is not the only DOC action
that implicates the constitutional right to rehabilitation. In Brandon we held that a
prisoner had the right to appeal DOC’s classification decision, which entailed
transferring him to a facility in Arizona, because that move could substantially impair his
ability to have visitation — and thus his rehabilitation.80 Although our decision in
Brandon did not address the issue of visitation in detail, it seems clear that what animated
the decision was the likelihood that transfer to a prison in Arizona would make it
practically impossible for the inmate to receive visits from family with any frequency,
if ever.81 In other words, transfer to an Arizona prison practically meant the loss of
visitation. In Larson, by contrast, we held that reasonable limits on contact visitation did
not implicate the right to rehabilitation.82 Likewise, in Antenor we ruled that the denial
of particular educational materials did not implicate the constitutional right to
80
Brandon v. State, Dep’t of Corr., 938 P.2d 1029, 1032 (Alaska 1997).
81
See id. at 1030 (noting prisoner’s argument that “transfer [to Arizona]
interferes with [prisoner’s] rehabilitation because his family will not be able to visit him
in Arizona”); see also id. at 1032 n.2 (“[V]isitation privileges are a component of the
constitutional right to rehabilitation . . . .”).
82
Larson v. Cooper, 90 P.3d 125, 133-34 (Alaska 2004).
-25- 7616
rehabilitation because the prisoner had been afforded other educational materials and
opportunities.83 Yet that decision also implied that the denial of “all rehabilitative
opportunities” — or even the denial of all rehabilitative opportunities respecting the
relevant problem— would implicate the constitutional right to rehabilitation.84 Together
these decisions suggest that DOC actions implicate the constitutional right to
rehabilitation, triggering judicial review, if they substantially impair or deny a prisoner’s
access to rehabilitative opportunities like vocational training, education, treatment for
addiction, or visitation.
DOC argues that Stefano’s removal from electronic monitoring did not
infringe his right to rehabilitation because there are other rehabilitative opportunities
available to prisoners in custody. For example, DOC points out that there are
opportunities for employment and substance abuse treatment in prison. Some prisoners
may even be eligible to pursue those opportunities in a community setting while
remaining incarcerated.85 And prisoners may maintain contact with family through
visitation.86 In light of these opportunities available to prisoners in custody, DOC argues,
removal from electronic monitoring does not substantially impair a prisoner’s access to
rehabilitative opportunities.
83
Antenor v. State, Dep’t of Corr., 462 P.3d 1, 19 (Alaska 2020).
84
Id.85
DOC, POLICIES AND PROCEDURES 812.10: PRISONER EMPLOYMENT
(permitting minimum custody prisoners to obtain work and education outside
correctional facility).
86
DOC, POLICIES AND PROCEDURES 810.02: VISITATION.
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We agree with DOC. DOC makes various educational, vocational, and
other rehabilitative programs available to in-custody prisoners.87 Although prisoners
who live with family when released on electronic monitoring clearly will have more
opportunity for contact with those family members,88 DOC’s visitation rules for in-
custody prisoners provide the opportunity for rehabilitative contact with family through
visitation. Rehabilitative opportunities may well be more available to inmates outside
the prison walls than within. But because prisoners have some access to education,
vocational training, employment, treatment for addiction, and visitation while housed in
a correctional facility (including some opportunity to obtain these rehabilitative programs
outside the facility),89 removal from electronic monitoring does not implicate the
constitutional right to rehabilitation.
2. A prisoner released on electronic monitoring has a liberty
interest protected by the Alaska Constitution that cannot be
taken away without some measure of due process.
As noted above, the salient difference between serving a sentence on
electronic monitoring and serving a sentence in a correctional facility is the degree of
87
Our analysis rests on DOC’s Policies and Procedures indicating that these
opportunities are available to inmates within the prison walls. If rehabilitative
opportunities are not actually available, that would present a different issue under the
constitutional right to rehabilitation.
88
It is worth noting, however, that a prisoner released on electronic
monitoring must obtain prior approval before having visits from family members at the
prisoner’s residence.
89
E.g., DOC, POLICIES AND PROCEDURES 812.10: PRISONER EMPLOYMENT
(allowing for “[w]ork [o]utside the [i]nstitution [p]erimeter”); id. (“[E]mployment
includes . . . academic and vocational education . . . .”); DOC, POLICIES AND
PROCEDURES 807.10: SPECIAL HEALTH CARE PROGRAMS (1986), https://doc.
alaska.gov/pnp/pdf/807.10.pdf (“Detox and withdrawal . . . treatment outside the
institution may be prescribed.”).
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freedom afforded to the prisoner. That difference raises the question of whether a
prisoner has a true liberty interest protected by the due process guarantee — rather than
a rehabilitation-based liberty interest90 — in continuing to serve a sentence on electronic
monitoring.
Parole, in which a prisoner has an undisputed liberty interest,91 provides a
helpful comparison in assessing a prisoner’s liberty interest in serving a sentence on
electronic monitoring. Like electronic monitoring, parole gives prisoners freedom they
would not otherwise have in confinement. The U.S. Supreme Court recognized the value
of a parolee’s freedom in Morrissey v. Brewer.92 The Court emphasized that “[t]he
liberty of a parolee enables him to do a wide range of things open to persons who have
never been convicted of any crime.”93 The parolee “can be gainfully employed and is
90
The due process clause provides that “[n]o person shall be deprived
of . . . liberty . . . without due process of law.” Alaska Const. art. I, § 7. As discussed
above, the right to rehabilitation is a liberty interest protected by the due process clause.
So too is the constitutional right to freedom from confinement. See, e.g., Morrissey v.
Brewer, 408 U.S. 471, 482-84, 489 (1972) (discussing parolee’s protected liberty interest
under federal due process clause in remaining out of confinement); Brandon v. State,
Dep’t of Corr., 73 P.3d 1230, 1234 (Alaska 2003) (noting that due process guarantee of
Alaska Constitution applies more broadly than that of its federal counterpart).
91
Bailey v. State, Dep’t of Corr., Bd. of Parole, 224 P.3d 111, 116 (Alaska
2010) (“Even though parolees enjoy fewer rights than the general population, ‘under
both the United States and Alaska Constitutions, a parolee may not be deprived of his
limited liberty without due process of law.’ ” (quoting Paul v. State, 560 P.2d 754, 756
(Alaska 1977))); McCracken v. Corey, 612 P.2d 990, 992 (Alaska 1980) (“It is clear that
the parolee is entitled to certain due process rights at a parole revocation hearing,
including the ‘opportunity to be heard in person and to present witnesses and
documentary evidence.’ ” (quoting Morrissey, 408 U.S. at 489)).
92
408 U.S. at 482.
93
Id.-28- 7616
free to be with family and friends and to form the other enduring attachments of normal
life.”94 “Though the State properly subjects him to many restrictions not applicable to
other citizens, his condition is very different from that of confinement in a prison.”95
And because a parolee “may have been on parole for a number of years and may be
living a relatively normal life at the time he is faced with revocation,”96 revocation
“inflicts a ‘grievous loss’ on the parolee and often on others.”97 In light of those
consequences, and because “the liberty of a parolee . . . includes many of the core values
of unqualified liberty,” the Court concluded that “the [parolee’s] liberty is valuable and
must be seen as within the protection of the Fourteenth Amendment.”98
Much of that analysis applies with equal force to a prisoner serving a
sentence on electronic monitoring. Serving the remainder of one’s sentence on electronic
monitoring is, in a practical sense, very much akin to serving the remainder of one’s
sentence on parole. A prisoner on electronic monitoring enjoys significantly greater
freedom than in confinement. Although electronic monitoring places restrictions on
prisoners, the restrictions are largely similar to those placed on parolees.99 Revoking the
94
Id.95
Id.96
Id.97
Id.98
Id.99
The “Electronic Monitoring Terms And Conditions” that Stefano signed
required him to, for instance, “obey all state, federal, and local laws . . . and court
orders”; “only reside in [the] approved residence”; refrain from having any “non­
employment-related, non-reentry related contact with a convicted felon” or “offenders
who are under any kind of DOC supervision without the permission of [electronic
(continued...)
-29- 7616
freedoms that accompany electronic monitoring inflicts great loss, much like revoking
the freedoms that accompany parole. The due process protections that safeguard the
valuable liberty of a parolee should logically extend to the valuable liberty of a prisoner
released on electronic monitoring.
There are two potential hurdles to recognizing that a prisoner has a liberty
interest in continuing to serve a sentence on electronic monitoring: the legislature’s
statement that a decision by DOC to place a prisoner on electronic monitoring “does not
create a liberty interest in that status for the prisoner”;100 and our own decision in Diaz
99
(...continued)
monitoring] officers”; and “not possess any firearms, ammunition, explosives, or deadly
weapons.” Statutorily mandated conditions of parole require parolees to comply with
all laws and court orders, to receive approval to change residences, to refrain from
contacting felons without permission, and to refrain from possessing any firearms.
AS 33.16.150.
We also note that the criteria for whether to release an inmate on electronic
monitoring and discretionary parole involve comparable considerations. Compare
AS 33.16.100(a) (authorizing Parole Board to consider, in deciding whether to grant
discretionary parole, whether “(1) the prisoner will live and remain at liberty without
violating any laws or conditions imposed by the board; (2) the prisoner’s rehabilitation
and reintegration into society will be furthered by release on parole; (3) the prisoner will
not pose a threat of harm to the public if released on parole; and (4) release of the
prisoner on parole would not diminish the seriousness of the crime”), with
AS 33.30.065(b) (authorizing DOC to consider, in deciding whether to release prisoner
on electronic monitoring, “safeguards to the public”; “the prospects for the prisoner’s
rehabilitation”; “the nature and circumstances of the offense for which the prisoner was
sentenced or for which the prisoner is serving a period of temporary commitment”; “the
needs of the prisoner”; “the record of convictions of the prisoner”; and “the use of drugs
or alcohol by the prisoner”).
100
AS 33.30.065(c).
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v. State, Department of Corrections, holding that release on electronic monitoring did
not create a protected liberty interest under the federal constitution.101
Although statements of legislative intent are generally entitled to great
weight, the particular intent expressed here does not dictate the scope of Alaska’s
Constitution. The legislature’s statement indicates it did not wish electronic monitoring
decisions to be subject to the constitutional guarantee of due process. Yet it is ultimately
not for the legislature to delineate the protections of Alaska’s Constitution. If the
electronic monitoring program is structured in a way that affords a measure of liberty that
our Constitution protects, the legislature cannot simply declare otherwise and override
those constitutional protections with a statement of intent.102 Indeed, DOC does not
argue that this proviso means that electronic monitoring implicates no constitutional
rights, and DOC’s implicit concession on this point is well taken.
As for Diaz, our decision pertained to the federal constitution only; we did
not directly address the Alaska Constitution. The prisoner in that case had sued
individual correctional officers under 42 U.S.C. § 1983,103 claiming among other things
that their decision to remove her from electronic monitoring without a hearing violated
her Fourteenth Amendment right to due process.104 In applying the federal due process
framework, we cited Sandin v. Conner for the proposition that “[t]he point at which
101
239 P.3d 723, 725 (Alaska 2010).
102
See Alaska Pub. Int. Rsch. Grp. v. State, 167 P.3d 27, 43 (Alaska 2007)
(“The judiciary alone among the branches of government is charged with interpreting the
law.”), see also supra note 54.
103
Section 1983 provides individuals with a federal cause of action for money
damages when a person acting “under color of” state law deprives them of any federal
“rights, privileges, or immunities.”
104
Diaz, 239 P.3d at 725-27.
-31- 7616
restraints on a convicted prisoner’s freedomimplicate a federal-constitution-based liberty
interest requiring due process of law is when her freedom is restrained in excess of her
sentence in an unexpected manner.”105 We reasoned that under the federal constitution
“due process requirements apply to parole revocations if a parolee returned to prison
does not receive credit against her sentence for time spent subject to the conditions of
parole.”106 We then contrasted parole with electronic monitoring, where time served is
credited towards the sentence.107 Because removal from electronic monitoring entails
return to a correctional facility without prolonging the sentence, we concluded that
removal did not meet Sandin’s standard of “restraint exceeding the sentence in an
unexpected manner.”108
We also recognized in Diaz that the Fourteenth Amendment protects some
liberty interests created by state law.109 The prisoner argued that removal from electronic
monitoring “deprived her of her [state-created] liberty interest in rehabilitation.”110
Because Diaz involved a suit under Section 1983, which provides a cause of action for
violations of federal law, we considered the due process protections of the federal
105
Id. at 730 (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). Sandin
involved a prisoner who was placed in disciplinary segregation for 30 days. 515 U.S.
at 475-77.
106
Diaz, 239 P.3d at 730 (citing Morrissey v. Brewer, 408 U.S. 471, 480-82
(1972)).
107
Id.108
Id. at 730 n.33; see Sandin, 515 U.S. at 484.
109
Diaz, 239 P.3d at 730-31.
110
Id. at 731.
-32- 7616
constitution only.111 We again applied the standard articulated in Sandin, under which
“the only state-created liberty interests protected by the Fourteenth Amendment are those
in freedom from restraints which ‘impos[e] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.’ ”112 Because removal from
electronic monitoring would only return the prisoner to “ordinary prison life” rather than
to atypical hardship, we held that the Sandin standard had not been met; the Fourteenth
Amendment did not protect the prisoner’s rehabilitation-based liberty interest.113
We therefore had no occasion in Diaz to consider whether electronic
monitoring creates liberty interests protected by the Alaska Constitution.114 And the
Alaska Constitution affords prisoners more expansive protection than the Fourteenth
Amendment, so Sandin’s framework is not a helpful guide to this question.115 We
therefore consider whether the electronic monitoring program confers on prisoners a
liberty interest protected by the due process guarantee of the Alaska Constitution.116
111
Id. at 731 n.44.
112
Id. at 731 (alteration in original) (quoting Sandin, 515 U.S. at 484).
113
Id. at 731-32.
114
Id. at 731 n.44.
115
See Brandon v. State, Dep’t of Corr., 73 P.3d 1230, 1234 (Alaska 2003)
(“[W]e have interpreted the due process guarantee under the Alaska Constitution more
broadly than the United States Supreme Court has interpreted the identical provision of
the United States Constitution.”); id. (describing “parameters of state constitutional due
process rights to be afforded to prisoners in disciplinary proceedings” under Alaska
Constitution and explaining that the United States Supreme Court set “much narrower”
parameters under the federal Constitution in Sandin).
116
In applying the Sandin standard, the Diaz decision focused on the fact that
time spent on electronic monitoring is credited to the prisoner’s sentence, so that removal
(continued...)
-33- 7616
As noted above, much of the Supreme Court’s explanation for why there
is a protected liberty interest in parole applies with equal force to electronic monitoring.
Although a prisoner on electronic monitoring is subject to restrictions, the prisoner lives
in conditions “very different from that of confinement in a prison” and is able to live
“with family and friends and to form the other enduring attachments of normal life.”117
The First Circuit Court of Appeals observed, in ruling that prisoners serving a sentence
on electronic monitoring have a protected liberty interest in that status, that electronic
monitoring “allow[s] the appellees to live with their loved ones, form relationships with
neighbors, lay down roots in their community, and reside in a dwelling of their own
choosing (albeit subject to certain limitations) rather than in a cell designated by the
government.”118 And although prisoners on electronic monitoring are subject to many
116
(...continued)
from electronic monitoring does not prolong the sentence (unlike revocation of parole).
239 P.3d at 730. Yet Diaz acknowledged that the U.S. Supreme Court subsequently held
federal due process attached to Oklahoma’s pre-parole program — even though time
spent on pre-parole was credited to the sentence. Id. at 730 n.34 (citing Young v. Harper,
520 U.S. 143, 144-45 (1997)). Following Young, courts have held that removal from
electronic monitoring implicates federal due process even when time is credited, albeit
without directly addressing the point. González-Fuentes v. Molina, 607 F.3d 864, 890
(1st Cir. 2010), following first appeal Rivera-Feliciano v. Acevedo-Vilá, 438 F.3d 50, 57
(1st Cir. 2006) (discussing that state would “give credit for . . . time served in the
[electronic surveillance program]”); Cox v. State, 706 N.E.2d 547, 548-50 (Ind. 1999);
see In re McNeal, 994 P.2d 890, 893-98 (Wash. App. 2000).
In any event whether time spent on parole or electronic monitoring is
credited is not dispositive under Alaska’s due process clause, which affords more
protection than the federal due process clause under Sandin. Brandon, 73 P.3d at 1234.
117
Morrissey v. Brewer, 408 U.S. 471, 482 (1972).
118
González-Fuentes, 607 F.3d at 887 (observing that prisoner litigants were
“living with either close relatives, significant others, or spouses, and in many cases with
(continued...)
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restrictions, “[i]mplicit in the system’s concern with . . . violations is the notion that the
[prisoner] is entitled to retain his liberty as long as he substantially abides by the
conditions” set forth by DOC.119
Taking this liberty away from the prisoner and remanding him to a
correctional facility “inflicts a ‘grievous loss’ on the [prisoner] and often on others.”120
According to Stefano, his removal from electronic monitoring resulted in separation from
his wife and family; the loss of his job and the good faith of his employer; a large
arrearage on his monthly rent; default on phone, insurance, and credit card bills he was
suddenly unable to pay; and inability to care for his special-needs dog. These kinds of
losses and setbacks will be common when a prisoner serving a sentence on electronic
monitoring is returned to custody. Releasing a prisoner on electronic monitoring invites
— and in fact requires — the prisoner to re-establish bonds with free society.121 Severing
those bonds by returning the prisoner to custody results in a loss of freedom only
somewhat less severe than placing the prisoner in custody in the first place. That
freedom, like the freedom of a parolee, is a liberty interest protected by the Alaska
Constitution’s due process guarantee — even though the same interest may not be
protected by the federal constitution under the Sandin standard.
Courts in other jurisdictions have similarly distinguished the Sandin
standard and applied a different framework to electronic monitoring and comparable
118
(...continued)
children”).
119
See Morrissey, 408 U.S. at 479.
120
See id. at 482.
121
See DOC, POLICIES AND PROCEDURES 818.10: SENTENCED ELECTRONIC
MONITORING (2020), https://doc.alaska.gov/pnp/p df/818.10.pdf.
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programs. The First Circuit, for example, recognized the value in comparing conditional
release “with the liberty interest in parole as characterized by Morrissey.”122 The court
then conceived of “a spectrum of liberty that extends from the ‘ordinary incidents of
prison life’ at its lowest end to parole at its highest” and concluded that different legal
standards apply at each end of the spectrum:
When the challenged action concerns what can be fairly
described as the transfer of an individual from one
imprisonment to another, Sandin’s “atypical hardship”
standard remains our lodestar; when, on the other hand, it
concerns the disqualification of an individual from a
supervised release program that begins to more closely
resemble parole, Young and Morrissey will form part of the
guiding constellation. The upshot is that in cases in which an
individual is not incarcerated in prison, the extent of his
existing liberty within the relevant program — and not just
the extent of his reduced liberty in a challenged placement —
must be taken into account.[123]
That court viewed release on electronic monitoring as “sufficiently similar to traditional
parole . . . to merit protection” under the federal due process clause.124 Other courts have
likewise concluded that release on electronic monitoring or community custody
programs confers on a prisoner a liberty interest that is protected by due process, even
under the federal constitution.125
122
González-Fuentes, 607 F.3d at 887 (quoting Holcomb v. Lykens, 337 F.3d
217, 221 (2d Cir. 2003)).
123
Id. at 889.
124
Id. at 890.
125
See McBride v. Cahoone, 820 F. Supp. 2d 623, 631 (E.D. Pa. 2011)
(holding prisoner has constitutionally protected liberty interest in serving sentence on
electronically monitored home confinement instead of prison: “[C]ourts . . . readily
(continued...)
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In Young v. Harper the U.S. Supreme Court applied Morrissey’s holding
to Oklahoma’s “pre-parole” program, explaining that the “minor difference” between the
state’s system of parole and its system of pre-parole did not “alter the fundamentally
parole-like nature of the” latter system.126 The same logic applies here. Because of the
substantial similarity between release on parole and release on electronic monitoring
described above, we conclude that a prisoner released on electronic monitoring has a
liberty interest protected by the due process guarantee of the Alaska Constitution.127
B. DOC’s Decision In This Case Was Not The Product Of An
Adjudicative Proceeding Producing A Record Adequate For Appellate
Review.
Showing that the challenged DOC decision implicates a fundamental
constitutional right is not enough to establish appellate jurisdiction. Stefano must also
125
(...continued)
acknowledge the existence of a constitutionally-significant difference between living at
home, even with restrictions, and serving a sentence in institutional confinement.”
(emphasis omitted)); Sallier v. Makowski, No. 00-10254-BC, 2002 WL 31772020, at *8
(E.D. Mich. Nov. 6, 2002) (concluding that placement of inmate on home confinement
under electronic monitoring “is the functional equivalent of parole” so that removal from
program triggers due process under Morrissey v. Brewer); In re McNeal, 994 P.2d 890,
894-98 (Wash. App. 2000) (distinguishing between inmate disciplinary hearings and
community custody revocations in holding that due process protections apply to
revocations of community custody because it is similar to parole); Cox v. State, 706
N.E.2d 547, 549-50 & n.5 (Ind. 1999) (holding that due process protections applicable
to probation revocation apply upon revocation of defendant’s placement in community
corrections program entailing “residential and work release, electronic monitoring, day
treatment, or day reporting”).
126
520 U.S. 143, 152 (1997).
127
That is not to say that the processes outlined in statute for a parole
revocation hearing necessarily apply to removal from electronic monitoring, and we
express no opinion on what process must be provided.
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show that the DOC decision was the result of an adjudicative proceeding that produced
a record adequate for judicial review.128 We conclude that the challenged decision does
not satisfy this requirement.
We first address a threshold issue: which proceeding and records are we
to consider? The superior court concluded that Stefano’s disciplinary proceeding,
culminating in the hearing on July 30, could be the basis for appellate review of the
electronic monitoring decision. Amicus curiae Public Defender Agency concurs in that
approach, arguing that the transcript of the disciplinary hearing and associated
documents “constituted a sufficient adjudicative record for review on appeal with regard
to Stefano’s [electronic monitoring] claim.” DOC counters that the decision to terminate
Stefano from electronic monitoring and the decision to discipline him for refusing to
follow an order from staff are two separate decisions resting on different grounds and
resulting from distinct processes. DOC has the better argument.
First, the decision to terminate Stefano from electronic monitoring was
made before the disciplinary hearing even took place. Stefano was terminated from
electronic monitoring in the incident report dated July 17, appealed his electronic
monitoring termination on July 19, and requested a classification hearing regarding his
termination on July 22 — all before he even received notice of the disciplinary hearing
on July 23. Stefano’s electronic monitoring appeal was then denied on July 24, six days
before the disciplinary hearing on July 30. The administrative proceeding that
culminated in the hearing on July 30 could not have been the process that yielded the
final decision on his removal from electronic monitoring six days earlier.
Second, the two decisions were justified on different grounds. The
disciplinary decision was based solely on Stefano’s contact with his brother Connor; the
128
Welton v. State, Dep’t of Corr., 315 P.3d 1196, 1198 (Alaska 2014).
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decision to remove Stefano from electronic monitoring was based on a wider range of
factors. The incident report explaining Stefano’s removal from electronic monitoring
referred explicitly to “the totality of the situation” stemming from the domestic violence
arrest and referred to Stefano’s wife’s statements to police and the subsequent phone
calls between Stefano and his wife. The superior court found that the language in the
incident report “indicates conclusively that Stefano’s contact with Connor was not the
sole basis for his dismissal from the [electronic monitoring] program.” By contrast, the
hearing officer on July 30 repeatedly emphasized that the sole purpose of the disciplinary
hearing was “to figure out . . . if [Stefano] violated these two conditions [of the program]
by having [his] brother at [his] residence.” The hearing officer denied the admission of
evidence that did not bear on this single question and refused to accept argument about
the effect of the termination from electronic monitoring on Stefano’s rehabilitation.
Because the two decisions rested on different grounds, the proceedings
pertaining to the disciplinary proceeding cannot be the basis for appellate review of the
electronic monitoring decision. For example, even if a reviewing court found no
evidence that Stefano’s brother was at his house — the basis for the disciplinary decision
— this conclusion would not negate the basis for the electronic monitoring decision,
which rested on his arrest and the recordings in which Stefano allegedly pressured his
wife to recant her accusations of domestic violence.
The record of the electronic monitoring decision, considered alone, does
not reflect an adjudicative proceeding and is not susceptible to meaningful appellate
review. The “essential elements of adjudication” include:
adequate notice to persons to be bound by the adjudication,
the parties’ rights to present and rebut evidence and
argument, a formulation of issues of law and fact in terms of
specific parties and specific transactions, a rule of finality
specifying the point in the proceeding when presentations end
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and a final decision is rendered, and any other procedural
elements necessary for a conclusive determination of the
matter in question.[129]
We have also emphasized the importance of a “verbatim record of the proceedings” —
in particular a recorded hearing — to “facilitate[] an administrative appeal.”130
Stefano was terminated from electronic monitoring with few, if any, of
these elements. A probation officer terminated Stefano’s participation in electronic
monitoring upon concluding that Stefano’s behaviors were “inconsistent with the
expectations, directives and Terms and Conditions of the [electronic monitoring]
program.” The appeal process did not allow Stefano the opportunity to present and rebut
evidence and argument, nor is there any indication that a burden of proof was employed.
Rather, the probation officer determined that Stefano should be terminated from
electronic monitoring based on the officer’s own evaluation of the totality of the
circumstances.
This process closely resembles the prisoner grievance process we deemed
insufficient for appellate review in Welton v. State, Department of Corrections.131 As in
that case, the process for removing Stefano from electronic monitoring lacked “several
important hallmarks of an adjudication” and produced “only a paper record” that does
not facilitate meaningful appellate review of DOC’s determination that Stefano’s conduct
was inconsistent with the expectations of the electronic monitoring program.132
129
Brandon v. State, Dep’t of Corr., 938 P.2d 1029, 1032-33 (Alaska 1997).
130
Welton, 315 P.3d at 1199 (citing McGinnis v. Stevens, 543 P.2d 1221, 1236
(Alaska 1975); Dep’t of Corr. v. Kraus, 759 P.2d 539, 540 (Alaska 1988)).
131
Id.132
See id. at 1198-99 (“[T]he limited paper record produced by the DOC’s
(continued...)
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Because Stefano was not terminated from electronic monitoring in an
adjudicative proceeding producing a record sufficient for appellate review, his challenge
to DOC’s decision does not fall within our precedent permitting appellate jurisdiction in
the absence of statutory authority.
C. We Decline To Expand The Superior Court’s Appellate Jurisdiction.
Amicus curiae Public Defender Agency argues that we should expand the
superior court’s appellate jurisdiction to allow it to hear all claims that a DOC decision
was rendered without minimal due process protections, regardless of whether an
adjudicative record exists. The Agency suggests that the issues in such appeals —
whether DOC’s decision implicates a fundamental constitutional right and whether it has
afforded sufficient process to the prisoner — do not require an administrative record and
are competently decided as matters of law. It contends that allowing appeals of this sort
would eliminate procedural hurdles that come with filing a civil action in superior court,
making litigation easier, quicker, and less expensive.
We decline to broaden the existing jurisdictional exception. We are less
confident than the Public Defender Agency that this proposed rule will be easily
administrable. If we were to adopt the Agency’s rule, the superior court proceeding
would turn on the nature of the prisoner’s legal theory: the court’s ability to hear the
case would depend on whether the prisoner’s claim sounded in due process. But the
nature of a prisoner’s challenge to a DOC decision — which will often be filed without
the assistance of counsel — may not be readily apparent to the superior court at the
outset. This approach would make uncertainty and procedural wrangling even more
likely than under the current legal framework, where the action turns on the nature of
132
(...continued)
informal grievance process is inadequate for appellate review, and the grievance process
itself lacks several important hallmarks of an adjudication.”).
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DOC’s decision (which should be apparent from the initial paperwork). And a challenge
to a DOC decision on both procedural grounds (the decision was the result of unfair
process) and substantive grounds (the decision was wrong on the merits) would be
subject to bifurcation, with the procedural challenge proceeding as an administrative
appeal and the substantive challenge proceeding as a civil action.133 The additional
complexity of expanding the jurisdictional exception is not warranted, as a prisoner may
challenge an alleged violation of constitutional rights with an original action in superior
court.134
Because our precedents do not permit Stefano’s challenge to his removal
from electronic monitoring to be heard as an administrative appeal, he must pursue this
challenge as a civil action in superior court.
IV. CONCLUSION
That portion of the superior court’s decision pertaining to removal from
electronic monitoring is VACATED. We REMAND to the superior court to allow
Stefano to convert his appeal to an original action.
133
The Public Defender Agency counters that this bifurcation is no worse than
the bifurcation that would result from holding that Stefano’s electronic monitoring claim
cannot be heard as an administrative appeal even though his disciplinary claim may. We
disagree. Stefano is challenging two distinct decisions; requiring these challenges to
proceed along different paths is not unnatural or cumbersome. Challenging the same
decision in two different proceedings is a far more convoluted process.
134
See Owen v. Matsumoto, 859 P.2d 1308, 1310 (Alaska 1993) (“Any alleged
violation of fundamental constitutional rights must be afforded judicial review.
However, Owen has not shown that review by administrative appeal is the proper avenue
for judicial review of an alleged miscalculation of his sentence.”).
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