MINUTES OF THE JOINT MEETING OF SENATE COMMITTEE ON JUDICIARY AND ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session January 24, 1995 The joint meeting of the Senate Committee on Judiciary and the Assembly Committee on Judiciary was called to order by Chairman Mark A. James, at 8:08 a.m., on Tuesday, January 24, 1995, in Room 119 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. SENATE COMMITTEE MEMBERS PRESENT: Senator Mark James, Chairman Senator Jon Porter, Vice Chairman Senator Ernest E. Adler Senator O. C. Lee Senator Mike McGinness Senator Maurice Washington ASSEMBLY COMMITTEE MEMBERS PRESENT: Mr. David E. Humke, Chairman Mr. Brian Sandoval, Vice Chairman Mr. Bernie Anderson, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Mrs. Dianne Steel Ms. Jeannine Stroth COMMITTEE MEMBERS ABSENT: Senator Dina Titus STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Dennis Neilander, Senior Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Mr. Robert Bayer, Director, Nevada Department of Prisons Mr. Robin Bates, Chief, Classification & Planning Division, Nevada Department of Prisons Mr. Glen Whorton, Classification & Planning Specialist, Public Information Officer, Nevada Department of Prisons Ms. Ann Cathcart, Nevada Attorney General's Office Senate Chairman James declared we have a quorum present. Senate Chairman James stated this is a day devoted to the Department of Prisons presentation and introduced the following representatives: Mr. Robert Bayer, Director Mr. Robin Bates, Chief, Classification & Planning Division Mr. Glen Whorton, Classification & Planning Specialist, Public Information Officer Senate Chairman James stated this was an interactive process and encouraged committee members to light their microphone light in order to be acknowledged by the Chair. This presentation is for the committees to learn more about the process and are urged to participate. Mr. Bayer expressed his pleasure to be able to acquaint the committees with demographic, statistical material, explanation about sentence structure, and calculations of sentence credits which will be necessary for the committees to make informed decisions regarding legislation that may be introduced during this legislative session. Each presenter has over twenty years experience in corrections in the Nevada system. We can explain what we are doing today; but, we can also give you an idea of how we got there and how it developed. We would be glad to meet with you individually for further clarification. We came prepared to give you the tools that they believe would be helpful in analyzing and making policy decisions. Today is more of a technical session, an overview which is not aimed to address any particular piece of legislation. As legislation is introduced, they will attempt to do the best they can to give the committee as much information and as much impact in a timely fashion as they can. Relatively few individuals understand sentence credits on sentence computation. They will try to simplify this process and explain in detail in order for the committees to come up with a coherent criminal justice policy. There is a real concern to do what is right for Nevada in trying to come up with a criminal justice system that works and satisfies the various different goals of the criminal justice system. Mr. Bayer pointed out the effects from legislation that will be passed this session will not be known for a couple of years. Inmates in the system now will not be affected by the new legislation. Thereupon, Mr. Bayer introduced Mr. Bates and Mr. Whorton. Mr. Bates appreciated the opportunity to increase the understanding of this very complicated public policy area. The ten-year forecast predicts we will have over ten thousand inmates in Nevada prisons by the year 2003, an increase of three thousand inmates (40%) over today. The increases could be even larger depending on the actions of this legislature. The goal today is to describe some basic principles and facts concerning the adult prison system which will hopefully provide you with a foundation for understanding various crime and punishment measures which will come before you. An outline was distributed covering an overview of the presentation, informing who goes to prison, where they come from, their ethnicity, their ages, their education levels. Senator McGinness inquired if Mr. Bates said we were going to have ten thousand inmates by the year 2003 and requested to know the current population. Mr. Bates replied that the current population is approaching seven thousand. We will break that threshold next week or the week thereafter. Mr. Bates stated the educational levels, substance abuse problems, the types of sentences, and how those sentences are served. This particular point of the presentation will probably be the most important. How sentence credits apply to reduce the judge given sentence and how parole eligibility interact, It is the most befuddling part of the system. The size of the prison population will be shown as a result of this system. Finally, cause and effect relationships will be shown to give an idea of how the actions you take will affect the size of the prison system. Mr. Whorton presented the statistics in the handout entitled, Nevada Department of Prisons Statistical Abstract, January 19, 1995, Part I - Who Goes to Prison? Part II - Intake, Release, and Population, Part III - Projected Population, attached hereto as (Exhibit C). Yesterday there were 6,962 inmates in the in-house population, including local inmates who are in local jails awaiting legal actions. Also, some inmates who are in local hospitals. The entire jurisdictional population yesterday was 7,286, including inmates who are in our own institutions, placed in the jurisdiction of other states doing concurrent service, escape status, and pending other actions. We have to manage over seven thousand inmates, their sentences, and their locations. Mr. Anderson inquired what their bed capacity was. Mr. Bates advised that their current emergency capacity threshold is 7,072. Continuing on page three of the exhibit, Mr. Whorton pointed out 93% of the population is composed of males, with the remaining 6.7% females. About 72% of the entire population is between the ages of 20-39. About two-thirds of inmates come from Clark County. Nevada basically represents two large metropolitan areas. In comparison to other metropolitan areas, Nevada does not come out so badly. Mr. Manendo inquired why we have prisoners out of state. Mr. Whorton advised that there are inmates who are sentenced in multiple jurisdictions; for example, an inmate can be convicted in the State of Nevada, Arizona, and Missouri. Sometimes the sentences are served concurrently in the other state. In addition, there are behavioral management inmates who are housed out of state under the Interstate Corrections Compact. Nevada also receives inmates from out of state who are problem inmates. Mr. Manendo inquired if it was Tennessee, as he had read an article about eight or nine inmates in Tennessee. Mr. Bates clarified that they were Nevada Juvenile offenders. Mr. Carpenter verified the bed capacity was 7,072 and asked if July 1 was the date the Lovelock prison facility would be opened. Mr. Bates affirmed the in-house population is approaching 7,000. The Lovelock Phase I Prison in the Executive Budget comes on in October. Initiatives are being looked at to bring it on sooner. They are also considering invoking the emergency capacity provisions of the Phillips case law at the Nevada State Prison to provide additional beds and invoking the provisions of the Stickney case law at the Nevada Correctional Center to provide additional beds. All of the above would require actions of the Interim Finance Committee or the Legislature to approve supplemental appropriations or work program transfer to provide additional capacity in order for the Lovelock Prison to be phased in sooner. When Lovelock Prison is opened, Mr. Carpenter asked what type of prisoners will be placed there and what institution will have a lesser load. Mr. Bates responded that the inmates will come from the five major institutions in Nevada: Northern Nevada Correctional Center, Nevada State Prison, Southern Desert Correctional Center, Southern Nevada Correctional Center, and Ely State Prison. Phase II of the Ely State Prison was built before Phase I Lovelock because it could be brought on faster. There are medium security prisons in Phase II Ely Prison. Medium and close custody Inmates will come from those five institutions to be housed in Lovelock. Other options not requiring additional funding are being investigated. Alternatives will be prioritized. Mr. Batten inquired that if an inmate was serving time in another state is he counted as part of the Nevada inmate population. Mr. Whorton replied that they are counted as part of the entire roster of Nevada's population. We reduce our overall projected population by that counted population. In regard to prison construction, Mr. Batten asked if they had any input. Mr. Bates advised that they participate in a multi-disciplinary process with the State Public Works Board, and usually a private sector design firm. Mr. Batten questioned why a prison was built for only 500 beds when the projected prison population through the year 2000 was known. Mr. Bates advised the Lovelock Prison was designed for a build out of 1,000 to 1,250. The core facility at Lovelock Prison will accommodate a Phase II which is in the capital improvement program. In addition the State Public Works Board is looking at the possibility of making some marginal adjustments to the core facility to accept another 250 bed housing unit and perhaps another one beyond that. The ultimate build out at Lovelock could be as much as 1500. Mr. Batten stated that his point was there are 500 beds now and with projected population, would it have been more cost effective to build a 1,000 or 1,500 bed prison. Mr. Bayer explained it is always cheaper to construct in advance of today's prices, but with the amount of funding available on capital improvements is limited by bonding capacity. Choices have to be made on how funds are to be utilized. Many systems across the country have found that the most cost effective way to build an institution and to bring it on line in a timely fashion is to build a core which has most of the expensive equipment, medical, culinary facilities. As the need arises funds are appropriated for expansion. Assembly Chairman Humke offered congratulations to Mr. Bayer for taking the position of Director of Prisons. It is nice to have a home grown product in control of the prison system. Mr. Humke requested clarification on the types of capacity, as emergency capacity was mentioned earlier. Mr. Humke asked if there are tiers with the types of capacity with regard to prison population. Mr. Bates replied that there are four capacity levels beginning with design capacity. Design capacity is one inmate per cell. The next step is rated capacity which represented double bunking 400 out of every 1,000 general population prison cells. Above that is operating capacity which represents double bunking 500 out of every 1,000 general population cells. The next level above that is emergency capacity threshold which represents double bunking 600 out of every 1,000 general population cells. Mr. Humke made the following editorial comment regarding consent decrees. Members, you may think that we control the prisons and that the Governor and Executive Branch run the prisons, but there is a little aspect known as the Federal Courts. They have authority in Federal Prisons, and we currently are under some consent decrees which, in his opinion, has been a poor choice on our part to accept the consent decree because they have everlasting life. Mr. Humke requested a list of the current consent decrees Nevada is presently abiding by. Mr. Bates informed that there are three agreements relating only to the Northern Nevada Correctional Center. It says that three dormitories built in 1964 cannot house more than 172 inmates each, unless the State augments the staff in those units and provides 18 additional officers for 24-hour supervision. Then you can go up to 220 in each of those units, increasing the capacity by 144. The next agreement is the Phillips agreement. It is a condition of confinement consent decree that affects the totality of the operations. In regard to capacity, it places a cap of 739 at the Nevada State Prison which becomes its emergency capacity. Point of reference, 739 inmates is double bunking 400 out of every 1,000 cells which is a relatively low level. Phillips agreement provided for due process for administrative segregation which has been applied to the policies throughout the department. It is segregation with reduction of privileges. Taylor v. Wolf case affects the mental health service system. It prescribes staffed inmate ratios for psychologist, psychiatrist, clinical social workers, psychometric technicians and forensics. It establishes due process for involuntary confinement and medications in mental health units. Mr. Humke requested that three sets of information on consent decrees be supplied for the committee chairmen, including the consent decree itself and any court monitoring information. Mr. Humke further inquired if there are any Federal cases filed or may be filed which may result in a consent decree. Mr. Bates deferred to Ms. Ann Cathcart of the Nevada Attorney General's Office. Ms. Cathcart advised that there is only one potential case arising out of the Ely State Prison; however, it is current policy to be reluctant to consider a consent decree. The ongoing costs and consumption of staff time are the major reasons why we are reluctant to consider one. Mr. Anderson inquired if we have been able to get out of a consent decree to free up some bed space. Mr. Bates responded that under Taylor v. Wolf consent decree, Judge Burns issued an order discontinuing monitoring, as long as the Department of Prisons maintained the spirit and the letter of the agreement by continuing to maintain the staff-inmate ratios and due process requirements. We have been found to be in compliance. Senator Porter inquired when legal actions are filed by inmates or their families is the Attorney General's Office representing the Department of Prisons. Attorney General's Office, Litigation Division, represents the Department of Prisons. Senator Porter requested the amount of claims paid by the State. Ms. Cathcart advised that the vast majority of inmate litigation is either civil rights or habeas corpus. The majority of civil rights Federal cases are dismissed. In 95%-97% of those cases no money is paid out. Most of these lawsuits are not considered meritorious. We do not settle for nuisance value because we would be inundated by lawsuits from inmates. We get one or two merit cases a year with monetary awards ranging from $1,000 to $40,000. Mr. Porter asked if we were within the $50,000 statutory limit. Ms. Cathcart replied that all Prison personnel are protected by that statute. After reading the newspaper, Mr. Carpenter stated he was concerned about the honor camps. Mr. Bayer responded that he needs to analyze the entire budget. Last session a presentation was made to eliminate the camps. There is tremendous interest now to change the use of the camps to therapeutic communities. One of the reasons why you see a move in this direction is because some the programs, such as 305 DUI Program, has been so effective. A balance is struck between their wish for certain amount of justice and a fiscally responsible system. Mr. Carpenter asked for clarification; if in 2003 there are going to be over 10,000 inmates and yet the classifications of the prisoners going to the honor camps are going to be reduced. Mr. Bayer replied that as there is a greater and greater appetite to ensure that violent criminals do more time inside prison walls, the maximum and medium security beds become full. In developing more cost effective measures in alternatives to incarceration, inmates will be treated at rehabilitative treatment centers. As the population becomes increasingly more hardened criminals, there is difficulty in finding inmates to put in minimum custody. Mr. Bates explained we are reducing our requirement for minimum custody beds. In 1989, 1991, and 1993 there were measures enacted, notably the residential confinement act for DUI offenders which reduced the requirement for minimum custody bed to 23%. The eight or ten conservation camps will be enough to maintain that minimum custody population in the future. Another phenomena is the stacking effect in the institutions where long-term offenders constitute an increasingly larger portion of the total population. Mr. Carpenter confirmed that eight or ten conservation camps would remain open. Mr. Bates replied in the affirmative. There are capital improvement programs to improve the camps, Carlin, Wells, Ely, Pioche (expanding by 100 beds), all of these camps will remain in the department. In the past, legislative sessions money was requested to fund additional camps; however, minimum custody population is shrinking. Mr. Bates went forward with his prepared presentation concerning recidivism on page 3 of (Exhibit C). Mr. Bates stated nearly 50% of the inmates are recidivist; not necessarily from Nevada. They have a prior felony conviction from someplace. The male population has 17.6% prior felony convictions for violence or sex offenses. Approximately 1,200 inmates would conceivably fall under a habitual criminal statute that relates to violent priors. Male (36%) and female (20%) inmates have a prior prison sentence. The general offense distribution of the prison population is as follows: property (24.1%), drugs (19.3%), violence (34.3%), DUI (6.1% or 350- 400 inmates); sex offenses (12.7%), other category, i.e., escapes, etc. (3.5%). The most serious offense is characterized as to offense. Mr. Bayer pointed out (Exhibit E) handout of the Prisons offense distribution. In looking at the 13% sex offenders, 34% violent offenders, 50% recidivists, it becomes increasingly difficult to isolate that 20+% that is needed to fill up the camps with true minimum custody inmates without dipping into the other group of multiple offenders that represent a risk to the public. Mr. Bates explained that the (Exhibit E) handout specifies the characterization of the population. A very large part of the population (9.1%) has been convicted for sexual assault. In the case of violent crimes, robbery is the most frequent. In property offenses, burglary constitutes over 14% of the entire population. In the case of drug offenses, possession of controlled substance is the most frequent. Under the DUI offenses, the vast majority of those are third or subsequent in seven years. These figures are based upon the current population. In reference to page 4 of (Exhibit C), Mr. Bates pointed out the circumstances for which people go to prison. New Court commitments compose 78%, parole and probation violators (22%). On page 5, Mr. Bates drew attention to the fact that the rate of illiteracy in the prison population is 57%. This is a telling statistic. Less than a high school education comprise 45% of the population and 61% have some degree of alcohol or drug abuse problems. Only two percent of the population are college graduates. Mr. Bates moved onto the next part of the presentation concerning service of the prison sentence. Mr. Manendo requested the number of youths placed out of state. Mr. Bates stated that on Thursday the Director of Juvenile Corrections will make a presentation to the committees. Department of Prisons does not have any jurisdiction over youths. There are juvenile offenders in adult prisons who have been adjudicated as adults; but, the group Mr. Manendo made earlier reference to were adjudicated as juveniles. Mr. Manendo stated his constituents were interested in establishing a military style boot camp in Nevada instead of sending youths out of state. Mr. Bates thought that the violent and sex juvenile offenders were sent out of state due to lack of detention facilities in Nevada, otherwise they would be in Elko or Caliente youth facilities. In the Executive Budget there are funds allocated for the juvenile boot camp. Mr. Bates moved into the textbook description of sentence management. The body of laws and policies over the years have become complex. The State created an occupational group to manage sentences. In reference to (Exhibit D), Mr. Whorton explained that there are four types of sentences that inmates receive: death and life without parole, life with parole, sentence described as a number of years with 1/3 parole eligibility, and sentence described in a set number of years, mandatory parole minimum. Mr. Bates stated there are two post conviction, pre-sentence programs to be aware of: 120 days evaluation program or shock incarceration program, and the program of regimental discipline or boot camp of 190 days. The inmates are returned to the sentencing court for final sentence after evaluation. Mr. Anderson inquired as to the success rate of the 120 day and boot camp programs. Mr. Bates advised that there have been no studies on the recidivism rate; but, the boot camp statistics will be presented later. Mr. Whorton continued with his presentation on (Exhibit D). No inmate has a right to parole in this state. Even if the inmate is paroled, before that person could be released, he must be approved by the Chief Parole and Probation Officer. Senate Chairman James inquired what percent of inmates actually receive parole. Mr. Bates answered that if you look at a seven year average, it is about 41%. Mr. Whorton informed that there is another type of parole called mandatory parole. It is a last opportunity for parole and applies to inmates who have one year remaining on their sentence. It applies to sentences of three years or more but excludes life sentences, parole violators, or consecutive sentences. Inmates who are a risk to the community are not eligible for mandatory parole. Mr. Whorton stated the next type of release was discharge of the sentence. Senate Chairman inquired if the 41% includes inmates who are subject to mandatory parole, and if it applies to if they are within one year of their release date. Mr. Whorton affirmed it applies to one year of their discharge which would be the end of their sentence. Mr. Bayer clarified one point where one year was left to serve, if there was not a mandatory parole at that point, and then they work and earn credits, they would be out before that year is up. This is one of the complexities that the public has a hard time understanding. Mrs. Ohrenschall inquired if mandatory parole applies automatically to every inmate within one year of discharge who has not previously violated parole. Mr. Bates responded with that as long as they meet the stated criteria, they receive the mandatory parole. Mr. Whorton advised the last type of release would be court or pardons action which amount to a small percentage. Paroles and discharges depend on the amount of time the inmate earns and serves. The time the inmate serves is time he is actually physically present in prison or under supervision of parole and probation. The amount of time inmates earn are those credits earned through good behavior, work, etc. A unit of credit in terms of calculating sentences is one day, for example, 20 credits equals 20 days toward the satisfaction of either his parole eligibility or his discharge. One month represents 30.4375 days. The following type of credits were explained: First type of credits that an inmate can earn are called statutory credits or good behavior. Inmates earn 10 days per month off their sentence for good behavior. If they misbehave all or a portion of those credits can be removed. Work or program credits inmates earn through those activities, such as porter, clerk, cook, dishwasher, teacher's aide, or by going to school and progressing toward a GED or a degree. There are two ways of earning credits inside of an institution, the maximum amount of work program credits is 10 days per month. If inmate is in minimum custody working outside of institution, such as conservation camps, they can earn up to a maximum of 20 days per month. Mr. Anderson requested confirmation if inmate earned 10 days for good behavior and if worked at forest camp and defended Crystal Peak, an additional 20 days would be earned in the same month. Mr. Whorton replied that 30 days would have been served plus earned 30 days in that month, for a total of 60 days in one month. Meritorious service credits are earned by inmate's exceptional performance in some type of activity or saving of life. Inmates in conservation camps earn this credit when they fight fire and are recommended by a supervisor. Up to 90 days per year can be earned. Meritorious achievement credits are earned for program completion, for example, achieving a GED, high school diploma, associates degree, vocational, and substance abuse. In 30 days an inmate can earn up to 90 days. Senate Chairman James requested informational handouts regarding sentence credits. Mr. Bates made a distinction about statutory good time credits and the work and program credits earned on a monthly basis, as opposed to the meritorious credits which are lump sum awards. You get those once; you don't get them continually. The work time and program credits, as well as the statutory good time are awarded on a monthly ongoing basis. Mr. Anderson inquired if he were to receive a GED and then go on and get an associates degree would those be considered to be two separate events. Mr. Bates replied in the affirmative. Mr. Carpenter asked if an inmate received good behavior credit and fought fires, what would be the length of time he would have to serve. Mr. Whorton replied a specific example would be outlined next. Mr. Whorton explained that the eligibility of parole is based on the total number of credits or days that are earned and served, so it does reduce it somewhat dramatically in short sentences. In the longer sentences, it is not so obvious. When the inmate is parole eligible, he appears before the Parole Board. Again, the Board does not have to release him. If they deny parole, then the time is set for rehearing before the board. It has nothing to do with credits, nothing to do with time served. The Board sets the denial up to three years. The first appearance only is calculated. After that the Board informs the prisons when it is set for hearing. Next Mr. Whorton showed the impact of these credits Assemblyman Anderson was referencing earlier. In regard to the institutional inmates, 30 days of flat time served in addition to 10 days of statutory good time credits, plus 10 days of work program credits, if working, totaling 50 days earned during 30 day period. If you divide 50 days by 30, it equals 1.67 number of days earned per day. This is the rate the inmate earns credit. It can be applied to either the number of days or years. For example, if a five year sentence was divided by 3, it will tell the 1/3 that the inmate has to earn and serve in order to be eligible for parole. (5 X 365 = 1825 days ? 3 = 608 days) This time is reduced by those credits. Under the best case scenario, assuming the inmate is behaving and working, you take that 608 days ? 1.67 = 364 days or 1 year. Mr. Bayer added that the above will affect testimony heard during this session. It says basically an inmate must serve one year before he is eligible for parole. Remember, in some cases an inmate is incarcerated a certain amount of time in the county jail awaiting for court hearing, for example, four months could be spent in the county jail before transport to the prisons. The time starts as long as the judge awards it, as far as statutory time goes, but not work credits, from the day he is incarcerated. The inmate may be received at the prison with four months credit which further reduces his eligibility. Then policy provides the inmate must be seen two months prior to their eligibility date for enough time to get them into the proper program. In some cases when they come to prison, they may have already been eligible for a Board hearing. The purpose for pointing this out is because it is frustrating to the victim. Mr. Batten inquired if all these credits were for the empowerment of the inmate or to relieve overcrowding. He felt with all this fat and time here, victim wise and otherwise, it seems like you have a "Hug a Thug Program." Mr. Whorton responded by stating they are acting under statute. They apply the law. They take the law literally, as you say the "Hug A Thug" kind of thing, where it appears something is given away. They only act based upon statute, judgment and conviction. No assumptions are made to the inmates benefit or victims detriment. This entire process is embodied in computerized process known as Nevada Corrections Information System (NCIS). It is microcomputer based written and responsive specifically to Nevada law. Thereby the flat time, staff, work program, losses and earnings of the inmates can be tracked. The legislature can decide the orientation of this system. Mr. Bayer interjected that it is simply input and output according to the laws; but, the question was more of a policy question. In order to answer it, one must look over the last 10-12 years with statutory changes. What the preceding legislatures have tried to do was balance the existing taxing and fiscal capacity of the state with the demand on resources for education and other areas and come up with a balance that made sense, especially during two recession eras. Nevada is the number one state in the country for incarceration per capita for five or six years which has gone down. For every bill that comes under consideration, you would be able to determine how statutory changes affect prison populations. Mr. Batten's other question was in regard to mandatory release, when the last year is approached in the sentence, no matter what offense committed, will the inmate be paroled, released, or go before the Parole Board. Mr. Whorton replied that if it is not offense specific, except for the fact the Parole Board must make the determination of whether or not the inmate is a threat to the community. Mr. Batten asked if prisons officials have any input to the Parole Board. Mr. Whorton advised the Parole Board is an independent agency. Mr. Bayer indicated they work closely with the Board by providing reports and recommendations to the Board's inquiries as to public safety. Mrs. Ohrenschall inquired if an inmate had four months incarceration in county jail would he get grand fathered in for statutory good time if he had been an excellent prisoner. In other words would the inmate get four months, plus 40 days good time credit. Mr. Bates replied in the affirmative. Senator Porter recited statistics from the Bureau of Justice on violent offenses. For the record, in violent offenses across the United States, the average time in prison was three years nine months which was 38% of the sentence served. Murder was eight years eight months, 47% of the sentence served. Rape was eight years two months, 39%. Robbery was three years nine months. Aggravated assault was two years two months, 33%. In 1987 an estimated 69% of 17-22 year olds paroled were re-arrested within six years. Another study in 1985 found approximately 46% of all male convicts still would have been in prison for their first crimes at the time of their admission to prison for the second crime. It is triggering an injustice to the victims. There is no choice. Due to more crime, more space is required. It is critical when decisions are made this session. Reform is not possible without adequate prison space. Ms. Buckley requested clarification of the flat time credit. Mr. Whorton replied that the flat time credit is the amount of time the inmate is physically in prison for that month or time served. All the credits referred to previously are what is earned. In regard to statutory good time credits, Mr. Perkins asked for clarification on how they are earned and what method determines removal of credits. Mr. Whorton responded that the inmate is going to earn those credits. If the inmate has been there the full month, he earns 10 credits for that month. For a partial month, it is prorated in the computer program. However, if an inmate engages in misconduct, the disciplinary process provides for the inmate to appear before a disciplinary committee and their recommendation is reviewed by the Warden. The recommendation may remove credits based upon the type and severity of the misconduct in accordance with the specific guidelines. With 1,200 or 1,500 inmates Mr. Perkins felt it would be very difficult to not allow credits for those inmates who have not earned them. Mr. Perkins requested information on the percentage of inmates who received credits and those that were removed. Senate Chairman concurred and asked Prison officials to provide a copy to him also. Mr. Bayer interjected during the parole revocation process if they have not acted in accordance with the guidelines set up by the Parole Board and they come back for revocation, in addition to going back into an incarcerated status, house arrest, the Parole Board may also take away statutory good time credits that were earned in prison. Parole process is also a lever for good behavior. Mr. Whorton informed that 96,744 days were taken away last year for statutory good time credit which rounds off to 265.1 years for misconduct. Mr. Goldwater inquired when the credit system was instituted by statute. Mr. Bates replied that the statutory good time credits were instituted in 1967 or earlier. Meritorious service and meritorious achievement credits were instituted in 1979 or 1981. The work and program credits (and what they call blood credits, inmates received up until three or four years ago; they received a lot of credits for donating blood) date back over 20 years. Mr. Goldwater asked if any trends or recidivism were recognized based on these credits. Mr. Bates responded in the negative. The cutting edge across the United States is it is hard to make a one to one relationship between offenses and the propensity of that person to reoffend. The longer one stays in prison, he is not reoffending anybody. These efforts to shorten sentences have not increased or decreased recidivism rate too much. Mr. Bayer added that due to limited computer capability, it is difficult to take one particular variable and track it back to recidivism across the group. It is a logistical problem too. Mr. Goldwater stated that if perhaps a trend could be spotted chronologically, he was aware it would be a difficult exercise. Senator Adler commented he worked in the Attorney General's Office in 1979 and represented the Department of Prisons. As a historical note, in 1979 the legislature did a "truth in parole statute." People used to be able to be released after serving 1/4 of their sentence. After serving 1/4 of their sentence, they went before the Parole Board which skyrocketed the prison population, so meritorious credits kicked in to reduce the prison population due to the recession in the early 80's. Nevada is still the number one incarceration state in the country even with meritorious credits. If we had not kicked those in, then we would have been way above the rest of the country. He cautioned the committee that if you were going to make reform, make sure you reform everything. Some of the reforms cause more of a complicated system than what we had in the 70's, where it was a straight 1/4 of the sentence without any credits. This was the background of how the sentence credits evolved from a reform measure of the late 70's. Mr. Bates agreed that Senator Adler was correct in that the increase was from 1/4 to 1/3. After it passed, extraordinary growth occurred and they went in with these back door programs for credits. Senator Adler stated to adjust that there was a credit system implemented which got to the complicated math on the board. It probably would have been no different if no one changed the system. His point is that if you are going to implement something be really cautious as to how you implement it. You may make things more complicated with the same result. He noted an important point that if an inmate commits a criminal act in prison, it is a consecutive sentence to the original sen10ce. That sentence has to be served after their prison sentence. They cannot run concurrent. In his experience in prosecution of those crimes, an inmate could have a three year sentence, but if an offense or couple of offenses is committed within prison, they could parlay that into a life sentence very easily. Mr. Bates advised that a good deal of consecutive sentences are handed out for walk-away from conservation camps and assaults on staff. In regard to the 56% illiteracy rate in the prison population, Mr. Sandoval asked if it was fair to assume there are not that many prisoners taking advantage of the GED and high school programs. Mr. Bates deferred to Mr. Whorton, but stated it is significant. The Department of Prisons, wherever located, is a school within the county school district and are staffed by the school district. Mr. Whorton informed that last year 364 inmates achieved a GED, nine inmates received high school diplomas, and 42 inmates received an associate of arts degree. Mr. Sandoval asked if there were statistics on recidivism for those who successfully completed those programs. Mr. Whorton replied in the negative, as there is nobody in the State of Nevada that is capable of doing this kind of research. You can assume a person with an education is better prepared to deal with the complexities of life and avoid criminal involvement. The advantage of education is realized. Mr. Sandoval understood the impracticality of tracking the released prisoners. It would be fair to assume it is successful because a great majority of inmates do not have a GED or high school diploma. Senate Chairman James inquired if the prison reform of the early 70's was coupled with any type of reform on who was taking up the prison space in terms of violent offenders versus drug and property offenders. Mr. Bates replied that the last year of reform was 1967. These changes made thereafter have been made piecemeal. Thus, the system you see today is somewhat bewildering. When you look at all the various things that we have done, a lot of it has been in response to resource allocation not necessarily criminal justice motivations, like when we increased from 1/4 to 1/3, it was two years later that sentence credits were instituted to even that out. Otherwise the prison was going to be taking resources away from other worthy programs. Mr. Whorton commented that change at that point in time was so impunitive that dramatic increase in prison population primarily fueled a dramatic change in the way we do classification and was the motivation for our initial involvement in population projection process. It was an attempt to determine how we distribute the population and limited resources. That concern came after that changed the 1/3 law. Senate Chairman James stated for the first time since 1967, we will not engage in piecemeal legislation. We will try to come up with something that looks at the whole picture, puts all of the players and all of the parts together, and reforms this system pragmatically throughout. Due to time constraints, Prison officials were asked to summarize their presentation. Ms. Stroth inquired about the maximum number of good time credits an inmate could earn in one month. Mr. Bates replied, that assuming an inmate was in a conservation camp, he would be eligible to earn 30 days time served and an additional 30 days good behavior, totaling 60 days earned and served. If it so happened that the inmate successfully completed a program in education, vocational or treatment, for that month he could get an award of 30, 60 or 90 days on top of the 60 days that he earned and served. For example, he could get 90 days in one month earned and served. Mr. Whorton informed that it was not 90 days every month. That is the best case scenario for a single month. Mr. Bayer asked the committee to not disregard the cause and effect of the good time credits and why they are there. It gives us a certain sense of an ability, not only to control inmates, but to offer them incentives in order to motivate them in a positive direction. For example, why are there 20 days instead of 10 days at conservation camps, because fighting fires is a very dangerous and tough business. It gives incentive to inmates to get 10 more days per month. Mrs. Ohrenschall inquired if a prisoner with a long sentence would be able to get more than one meritorious lump award for his achievement if he undertook a second associates art program. Mr. Bates replied in the affirmative. Mr. Batten directed a question to Attorney General representative, Ann Cathcart. He asked if it was feasible to form an inmate's screening panel to decide if prisoners' lawsuits had merit. Ms. Cathcart advised since last March 1994 they have worked with the Federal Court which is where all the civil rights lawsuits are filed. Under a new program called early case evaluation hearing process, over 166 civil rights lawsuit hearings were conducted telephonically by a Federal Judge. This hearing takes place after a lawsuit has been filed and before any defendants are served. Technically the Attorney General's Office does not represent anyone but provides information to the Court if requested. The inmate with a prison case worker is on the line at the prison to answer any questions that may arise. The Court takes that opportunity to question the basis of the lawsuit. If the Court determines that all or part of the lawsuit is frivolous, the Judge talks to the inmate and convinces the inmate it would be appropriate to either dismiss all or part of the claims of the lawsuit. As a result of this process the Courts have managed to reduce the substance of the lawsuits by over 50%. Resolutions have been achieved in minor matters. On a State level there are alternatives the State could consider in providing assistance for evaluation of inmate grievances. The prisons have an inmate grievance process, whether or not the Department of Prisons believes that something in addition to that would be very beneficial, is a matter for the Department to address and advise the legislature. This is one example that is working for us and we have Court support. The Attorney General has been very supportive. Perhaps something along these lines might even work in the State system. Mr. Whorton continued with his presentation talking about the effect of good time credit on parole eligibility. For example, an inmate sentenced to five years would be eligible for parole within one year. (5 years ? 1.6 = 2.99 years) If an inmate was inside the prison for the entire period, he would have to serve three years to satisfy the sentence. For inmates in camps, the following equation applies: 608 days ?2 = 304 days or 10 months to satisfy parole eligibility. For discharge the following applies: 5 years ?2 = 2.5 years, if the inmate spent his entire time in camp which is unlikely, but could spend a substantial portion there. This is a simplified method for presentation. All the information needed for calculations is embodied in the Nevada Informational Correctional System (NICS). There are no lawsuits based upon the foregoing method of calculation. Mr. Bates discussed the 1/3 law which is the general parole. There are certain offenses which have statutory minimums. These 20 or so offenses represent the most severe in (Exhibit F) handout. Crimes of murder, kidnaping, sexual assault, variety of child sexual offenses, and drug trafficking represent those offenses which have been set aside for special treatment. In these offenses sentence credits do not apply toward parole eligibility. Mr. Whorton defined classifications by stating the inmates are divided into separate classes. Classification is basic to operation of the prisons. Two concepts are custody and security. Custody levels are assigned to inmates for the degree of supervision the inmate receives. Security concept is physical features and the policy and physical characteristics of an institution, i.e., fences, guns, towers, staff, lights. Three basic custody levels are used: Minimum is one subgroup of inmates who will behave and not walk away. Medium custody requires good behavior, but a risk to escape or walk away. Close supervision is the most restricted. The inmate will not behave and will run away. The goal is to place each inmate at the lowest custody level where his behavior can be controlled to obtain an efficient, cost-effective process. In order to do this an objective classification system is employed to distribute the population. This system consists of 67 staff to manage a population of 7,200. They have law and policy for an orderly and accountable process. NICS supports this classification system. Every inmate is reviewed and classified on a regular basis at least twice a year. Progress is reported to the Parole Board. There are only two states in the entire United States that have a higher inmate to noncustody staff ratio than the State of Nevada. Case law also must be taken into consideration in processing inmates. Mr. Anderson inquired if the ratio of the number of people in your facility to the prison population is less here in this State than any other State. Mr. Whorton advised we have more inmates per staff member. We are rated No. 3 in the United States. Mr. Anderson asked if the above was a major reason for the low inmate cost ratio. Mr. Whorton indicated that would contribute to it. We have about 10 inmates to every noncustody staff (doctors, pre-cooks, clerks). There is a low overhead in the Department of Prisons. Mr. Anderson understood this is not a real high maintenance organization, except in those few critical incidents where an event has taken place. Due to the under staffing, Mr. Anderson asked if there was additional staff that could be called in or overtime staff; and, do we end up incurring additional dollars because of the need to call in additional staff. Mr. Bayer advised there is no question they do it as cost effectively as anyone in the country. Because of that, they do have a very tight staffing ratio which does cause overtime in some situations which is unavoidable. Mr. Sandoval presented a question regarding the custodial staff. He had seen a program on television last night about an incident in another state prison. There was one guard that was beaten to death and two others beaten unconscious. The conclusion was it was the result of inadequate staffing. Mr. Sandoval asked if there was a similar problem in Nevada. Mr. Bayer informed that Nevada was very fortunate because of their procedures, very rarely is there a serious incident. As more violent offenders are incarcerated with less controls over them, we have to look at that. Staff training is his big emphasis in the next two years to make sure the staff is well trained and the resources available. Mr. Whorton informed that classifications also contribute to the aforementioned. Supervision reduces the risk of harm to staff. Major element of the objective classification system is an objective instrument. We have an instrument which is a modification of the National Institute of Corrections objective instrument. This a salient factor scoring model in which analysis of case and disciplinary factors are scored. This instrument recommends a placement for the inmate. It was modified several years ago to add a decision treatment component that responds specifically to Nevada law and policy. This instrument is embodied in NCIS. Higher the score, the more the restrictive custody level. Senate Chairman James interjected that they were trying to predict behavior to some degree that is the whole purpose. Mr. Whorton stated it is a consistent reliable way of reviewing an inmate. Senate Chairman James asked the question because one of the things these committees are going to try to do this session is to identify people who do not have a history of violent crimes or who are not in prison for violence in non-violent property offenses or drug possession, small amounts. Those persons are the ones that need to be diverted out of maximum security and into the treatment we are trying to expand in the boot camps and the shock incarceration. Mr. Whorton advised that any time you are dealing with a person, you can say given this nonviolent group of offenders, the expectation is the overall percentage will not go out and commit violent offenses. It is more difficult to look at one specific inmate and say yes he will or yes he will not. There is a risk to all of this and some will reoffend which may be violent. The risk is lower than releasing inmates who are violent. Senate Chairman James stated we have a simple choice, either we build more prisons or we change around the people who are in them now. There are only two things we can do. Mr. Bayer responded by saying if we put all sex offenders outside into minimum custody, there is risk to the public. Those prison populations need to be identified where there is less risk to the public. Then take chances on good programs. The issue was raised by Senate Chairman James because Mr. Bayer, Mr. Wyatt, and Mr. Cavakis need to help identify those populations. It is a crucial issue in parole reform. Otherwise, a numbers game is played which will bite us two years from now. Given the fact that there is emergency capacity almost right now, probably immediately, it will hit us. Senator Adler requested input from the Department of Prisons on statutory minimums as to which one should be raised or lowered in terms of risk to the community. The goal of the committees is public protection at a cost-effective ratio. Mr. Bates thought the A.C.R. 71 and 76 committees held hearings which pointed out the trafficking offenses in Nevada are not doing exactly what they were intended to do. Motivation is based on the amount of weight and it targets 400 or 500 inmates. All of those people are not drug traffickers. Some have large personal consumption habits, large quantities which fell into the amount of pounds that defined a trafficker; not because they were a provider or did interstate commerce, but because they just had that amount. This is fertile ground to look at. Trafficking statutes should be reviewed with an eye towards isolating people who are trafficking as opposed to having large amounts in their possession. Senator Adler surmised that we should look at who really are the sellers rather than who are the small fish in the equation. He noted Judge Fondi, in the Interim Study Committee, was also of the opinion that statute should be reviewed. Mr. Bates advised that the other statutory minimums in his opinion are appropriate. Crimes of violence and sexual offenses need to be raised. The habitual criminal statute needs revision to target only predators and violent criminals, and not petty larcenists and multiple burglars. A 20-year minimum is suitable for three violent crimes. Senator Adler informed a bill draft has been submitted for 20-year minimum. Senator Washington stated that basically what you are trying to do is to classify the criminal based upon his behavior and then making these statutes according to that behavior whether its habitual, new offenders, or felons, etc. Mr. Whorton responded that classification is an individual process. Information system provides guidance. Mr. Perkins echoed the comments of the Chair in regard to determining behavior and receiving information from people who have that expertise to determine which violent offenders we need to incarcerate and keep away from our society and find those that we can provide treatment for. In reference to (Exhibit F), possession of controlled substance and nonviolent property offenses, Mr. Perkins inquired as to whether or not information is available to tell if those were crimes that were charged or the crimes they were sentenced to through the plea bargaining process. He thought it was crucial to consider this when discussing programs for non-violent offenders. Mr. Whorton replied the information system does not specifically capture what the original charges were. In many cases you are correct to assume that these are offenses that have been plea bargained down to possession or possession for sales. This is a typical practice of the criminal justice system for all offenses. Senate Chairman James felt the foregoing was a critical question raised by Mr. Perkins. If the Attorney General's Office or if Ben Graham of Nevada District Attorney's Association has access to this information, it would be appreciated if they could provide it to us. We need to know what percentage involved other crimes or included offenses. Mr. Anderson noted that part of those studies came statistically from the A.C.R. 71 in looking at drugs and recidivism. Senator Adler stated that examining the originally charged offense would be a difficult analysis because sometimes the DA's offices do overcharge or have overlapping crimes with the intent of plea bargain. It would be difficult to find out the intent of the DA's office when charging the original offense. Senate Chairman James informed there was testimony in the Interim Study Committee on charging and overcharging as one of the issues. We could start there with Legislative Counsel Bureau for access to information in those reports in A.C.R. 76. Mr. Bates referenced (Exhibit G) by noting the following inmate custody percentages: 22% minimum custody, 57% medium custody, and 21% close custody. In reference to (Exhibit H), Department of Prisons Emergency Threshold Beds as of 01/19/1995, Mr. Bates pointed out 7,072 beds currently at emergency capacity and the capacity analysis on page 3. Mr. Anderson inquired if there was a higher level of female double bunking than males. Mr. Bates answered in the affirmative, 200% female and 160% male. Mr. Bayer summarized by stating he is looking forward to working with the committees and will do the best job they can. Senate Chairman James thanked the Department of Prisons for their presentation. He reminded members of the State Prisons tour tomorrow morning, January 25, 1995. There being no further business to come before the committee, Senate Chairman James adjourned the meeting at 10:38 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman Mr. David E. Humke, Chairman Mr. Bernie Anderson, Chairman Joint Meeting of the Assembly and Senate Committees on Judiciary January 24, 1995 Page