Brandon v. State, Department of Corrections

RABINOWITZ, Justice,

dissenting in part.

I dissent from section IV.A. of the court’s opinion.

*1034Brandon asserts that DOC violated his fundamental constitutional right to rehabilitation under article I, section 12 of the Alaska Constitution.1 It is well established that a court may review prison administrative decisions only when they affect a fundamental constitutional right. Abruska v. Department of Corrections, 902 P.2d 319, 321 (Alaska 1995); Owen v. Matsumoto, 859 P.2d 1308, 1310 (Alaska 1993).2 This court has not previously recognized a fundamental constitutional right to visitation. See, e.g., McGinnis v. Stevens, 543 P.2d 1221, 1237-38 (Alaska 1975) (finding no right to conjugal visits). The Supreme Court of the United States has unambiguously rejected the existence of such a right. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460-61, 109 S.Ct. 1904,1908-09,104 L.Ed.2d 506 (1989).

On this record I would reject Brandon’s effort to reformulate his transfer challenge as a claim that his constitutional right to rehabilitation has been violated. Given our precedents limiting the scope of a prisoner’s constitutional right to rehabilitation and deferring to DOC’s discretion in such matters as prisoner transfers, I would affirm the superior court’s dismissal of Brandon’s appeal for lack of subject matter jurisdiction. In short, I am of the view that Brandon has failed to raise a viable claim that any of his fundamental constitutional rights have been adversely impacted by virtue of his transfer.

Visitation does not qualify as the type of therapeutic program for adult prisoners to which the constitutional right to rehabilitation attaches. Rather, that right is a guarantee of access to programs designed to reform the prisoner.

This distinction was drawn in oor first decision which recognized a constitutional right to rehabilitation. Abraham v. State, 585 P.2d 526 (Alaska 1978), addressed a native prisoner’s complaint that he was denied access to alcohol abuse programs, that as a Yupik speaker he would be in virtual isolation in state prison, and that he would be denied his traditional native diet. Id. at 531, 533. The only grievance which this court acknowledged as raising a valid rehabilitation claim was Abraham’s asserted denial of access to alcohol abuse programs. Id. at 533. Even the rather harsh circumstance of incarcerating Abraham where he would be unable to communicate with others was not viewed as implicating his right to rehabilitation.3 Abraham thus established that rehabilitation is an enforceable constitutional interest, but only in the context of institutional programs designed to rehabilitate the inmate. Id.

Subsequent cases clarify and reaffirm this understanding. All define the constitutional right to rehabilitation as a guarantee of access to a formal program addressed to the specific problems that impelled the prisoner’s antisocial conduct. Abraham was concerned with alcohol abuse. In Ferguson v. Department of Corrections, 816 P.2d 134, 139 (Alaska 1991), this court recognized a prisoner’s claim of exclusion from work programs designed to redress a lack of job skills. We held that the Alaska Constitution creates “an enforceable interest in continued participation in [these types of] rehabilitation programs.” Id. Other examples of constitutionally protected reform might include sex *1035offender counseling or literacy assistance. Invariably, the constitutional right to rehabilitation has been grounded in a formal program addressed to a specific problem.4

While undoubtedly important visitation does not qualify as a constitutionally protected reform program. Like Abraham’s language claim, Brandon alleges only that the change in the geographical location of his confinement is harsh and will limit visitation with his two children and family. The record does not indicate that Brandon claims he is denied access to appropriate rehabilitation programs. While the courts are a guarantor of access to such programs, it is not their role to define what needs should be addressed or how rehabilitative programs should be structured. Historically such decisions have been left to legislative judgment and the discretion of DOC. Respect for this allocation of authority precludes courts from reviewing, under the guise of enforcing a prisoner’s constitutional right to rehabilitation, the impact on inmates of changes in their place of confinement.

The fact of DOC discretion, and concomitant limitations on judicial review, were recognized by this court in Hays v. State, 830 P.2d 783 (Alaska 1992). There we held that inmates have no cognizable interest in access to particular rehabilitation programs. Id. at 785. Petitioner Hays had been fired as a prison librarian because of his poor attitude and transferred to a position shoveling snow, where he would have less direct contact with others. Id. at 784. We recognized that the library position was a constitutionally protected form of rehabilitation, but nevertheless rejected the appeal because Hays “was not denied all rehabilitative opportunities.” Id. at 785. In other words, DOC could exclude a prisoner from an actual reform program, so long as some appropriate form of rehabilitation was provided. Implicit in this holding is that DOC has discretion to decide what type of rehabilitation is suited to the inmate.

Hays has particular significance for this case because there we made clear the flaw in Hays’ claim was jurisdictional. Id. at 785. Although Hays had alleged he was removed from a reform opportunity, because prison authorities had discretion to determine which program was best for him, his grievance did not raise “an issue of constitutional magnitude.” Id. We therefore affirmed the superi- or court’s dismissal of Hays’ administrative appeal for lack of subject matter jurisdiction. Id.

Finally, as noted at the outset, I would reject Brandon’s effort to reformulate his transfer challenge as a constitutional rehabilitation claim. Allowing such a conversion eviscerates the holdings of our decisions in Abraham and Rust. If a prisoner’s mere allegation that his placement interferes with his rehabilitation is enough to trigger judicial review, then all transfers may be reviewed by courts.

Movement of inmates raises many issues that can only properly be considered from the prison administrator’s perspective. For this reason, I would hold that a prisoner seeking judicial review must establish in the DOC administrative appeals process that his rehabilitation claim rests on a factual basis other than the mere assertion that transfer or placement adversely affects visitation. A mere allegation that a transfer or placement decision of DOC adversely impacted visitation does not raise an issue of fundamental constitutional right requiring judicial review.5

One additional observation. The court notes that its recognition that “visitation privileges are a component of the constitu*1036tional right to rehabilitation does not define their required scope or permissible limits on their exercise. Such definitions will have to be achieved in future adjudications.” Given that prisoner visitation is now a component of the constitutional right to rehabilitation, it seems to me that the Department of Corrections, State of Alaska will necessarily encounter great difficulty in attempting to justify most out-of-state incarcerations, most incarcerations of rural Alaskans in urban facilities, and most incarcerations that encompass significant geographical dislocation (e.g., Fairbanks residents incarcerated in the correctional facility located in Seward). This is not to say that I view incarceration of prisoners in locations that will facilitate visitation inappropriate. On the contrary, I think such a development is a salutary one despite the significant fiscal implications which will flow from implementation of this constitutional right of prisoner visitation.

. Article I, section 12 of the Alaska Constitution provides in relevant part:

Criminal administration shall be based upon the following: the need for protecting the public, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation.

. It is also firmly established that an inmate has no constitutional right to be incarcerated in a particular prison, either in-state or out-of-state. We have long held that placement and transfer of prisoners is a matter ultimately within the discretion of DOC. Rust v. State, 582 P.2d 134, 136-38 (Alaska 1978). In Dwyer v. State, 449 P.2d 282, 284 (Alaska 1969), this court upheld the transfer of inmates to out-of-state facilities. (At present there are approximately 200 Alaskan prisoners incarcerated with Brandon in Arizona and several hundred other Alaskan prisoners in other locations around the country.)

Under the federal constitution, Brandon does not have a right to avoid an inter-state transfer, to be incarcerated at a particular prison, or to a particular classification. Meachum v. Fano, 427 U.S. 215, 223-29, 96 S.Ct. 2532, 2537-41, 49 L.Ed.2d 451 (1976); Olim v. Wakinekona, 461 U.S. 238, 244-48, 103 S.Ct. 1741, 1745-47, 75 L.Ed.2d 813 (1983).

.We did address whether this de facto linguistic isolation constituted cruel and unusual punishment, and concluded that it did not. Id. at 533.

. See also Goodlataw v. State, Dep’t of Health, 698 P.2d 1190, 1193 (Alaska 1985) (“Rehabilitation implies a therapeutic program of working over a period of time to correct a complex problem.”) (emphasis omitted); LaBarbera v. State, 598 P.2d 947, 949 (Alaska 1979) (judicial intervention is appropriate only when the state fails "to provide an appropriate rehabilitation program.”).

. I note that apart from any constitutional basis for review of DOC’s transfer decision, no Alaska statute authorizes judicial review of Brandon’s complaint. The court relies on AS 33.30.061(b) to establish a link between transfer and the constitutional right to rehabilitation. Section .061(b) declares that an Alaskan prisoner may be moved to an out-of-state facility "only if the commissioner determines that rehabilitation or treatment of the prisoner will not be substantially impaired.” While the section requires consideration of the impact of transfer, it vests this responsibility with DOC only. Nowhere does it authorize judicial review. Indeed, elsewhere the statute declares that “the commissioner shall *1036designate the correctional facility to which a prisoner is to be committed.” AS 33.30.061(a). In Rust, 582 P.2d at 137-38, this language was interpreted to hold that all prisoner transfers are ultimately within the discretion of DOC.

Rust relied on this delegation of authority to dismiss a claim virtually identical to the one presented here. Petitioner Rust sought an order prohibiting his transfer out of Anchorage, where the presence of his family in Eagle River would "benefit his rehabilitation." Id. at 135. This court rejected the appeal. We found that placement of prisoners “is committed to the administrative discretion of the Division of Corrections," and "the exercise of that discretion within constitutional bounds is not subject to the control or review of the courts.” Id. at 137, 138 n. 11 (quoting Public Defender Agency v. Superior Court, 534 P.2d 947, 950 (Alaska 1975)).

To the extent the court grounds its finding of jurisdiction in AS 33.30.061(b), it relies on that statute to create a remedy that it plainly does not authorize. I would adhere to our decision in Rust and hold there is no statutory basis for judicial review of prisoner transfer claims.