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

Petitioner, 

v. 

TREVOR STEFANO, 

Respondent. 

,

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 ) Supreme Court No. S-17892
 

Superior Court No. 3AN-19-09950 CI 

O P I N I O N 

No. 7616 – September 2, 2022 

) 

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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 DOCrequired 

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 

EL E C T R O N I C MO N I T O R I N G (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 convictedfelons. With respect to Stefano’s termination fromelectronicmonitoring, 

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 

heardStefano’s “inappropriatestatements to[his]wife”intherecorded calls fromprison. 

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 aclaimthat his removal fromelectronicmonitoring 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 

incidentsapparently stemmedfromthesamefactual 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 fromelectronic 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 

DOCto reinstateStefano onelectronicmonitoring,thecourt heldthat “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 fromelectronic 

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 programfrom 

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 library “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 improveacriminal’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 

rehabilitativeprogramfromhispartial dissent in Brandon, we do not undercut thecourt’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, wehaveconsidered 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), 

h t t p : / / w w w . a k l e g . g o v / b a s i s / M e e t i n g / T e x t ? M e e t i n g = H J U D % 

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 postsecondary 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(describingthefour custody levels and 

explaining that “[t]he custody status assigned to a prisoner is based on . . . the 

classification process”). 

68 Hertzv. Macomber, 297P.3d 150,157(Alaska2013)(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, theelectronicmonitoring programresemblesanextension,inmany 

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 thatpromotepublicsafety and providesfor theresponsiblereformation 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 himto 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). 

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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 implicatetheconstitutional 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 oftheseopportunities availableto prisoners in custody, DOCargues, 

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 incustody 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 

acorrectionalfacility (includingsomeopportunity to obtain theserehabilitativeprograms 

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,408U.S. 471, 482-84,489 (1972)(discussing parolee’sprotectedliberty 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. 

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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 

sentenceonelectronicmonitoring. Servingtheremainder ofone’s sentenceon 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 “nonemployment-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...) 

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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 programis 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. 

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restraintson aconvicted prisoner’sfreedomimplicateafederal-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 fromelectronic 

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. 

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constitution only.111 We again applied the standard articulated in Sandin, under which 

“theonly state-created liberty interests protected bytheFourteenthAmendmentarethose 

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...) 

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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,hisremoval fromelectronicmonitoringresultedin 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,explainingthat 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 

AdjudicativeProceedingProducing ARecordAdequateForAppellate 

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 thepoint in theproceedingwhenpresentationsend 

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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 

notfacilitatemeaningfulappellatereviewofDOC’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 fromthe 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 fromholding 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 SeeOwen v. Matsumoto, 859 P.2d 1308, 1310(Alaska1993) (“Any alleged 

violation of fundamental constitutional rights must be afforded judicial review. 

However, Owen has not shown that reviewby administrative appeal is the proper avenue 

for judicial review of an alleged miscalculation of his sentence.”). 

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