MINUTES OF THE JOINT MEETING OF SENATE COMMITTEE ON JUDICIARY AND ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session January 27, 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 8:46 a.m., on Friday, January 27, 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 Mike McGinness Senator O.C. Lee Senator Dina Titus Senator Maurice Washington ASSEMBLY COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, 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 (late/excused) Mrs. Dianne Steel Ms. Jeannine Stroth COMMITTEE MEMBERS ABSENT: None. GUEST LEGISLATORS PRESENT: None. STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Allison Combs, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Richard E. Wyett, Chief, Nevada Department of Parole and Probation Pete English, Deputy Chief, Nevada Department of Parole and Probation Carlos Concha, Acting Deputy Chief, Nevada Department of Parole and Probation Alan Barnes, Operations Supervisor, Nevada Department of Parole and Probation Nancy Tiffany, Unit Manager, Nevada Department of Parole and Probation Judy Jacoboni, Chapter President, Mothers Against Drunk Drivers (MADD) Chairman James acknowledged this as the last day of joint meetings this week containing an overview of presentations and they may be asking people to return to educate the committees on correction and parole and other issues confronting them. Chairman James indicated that the Chairmen from the two houses would be meeting in a cooperative fashion to divide responsibility and work expeditiously to consider the various proposals of reform during this session. Chairman James introduced Mr. Richard Wyett, Chief, State of Nevada Department of Parole and Probation and asked that he come forward for his presentation. Mr. Wyett provided a general overview of the division of the State of Nevada Department of Parole and Probation. Mr. Wyett's prepared statement is attached hereto as (Exhibit C). Mr. Wyett included some personal and professional feelings and observed that the Department of Motor Vehicle and Public Safety, Director Weller and Deputy Ray Sparks were present in the room today and further, that he was very happy to have newly-appointed Director, Bob Bayer in the position he is in as Director of the Department of Prisons. Mr. Wyett acknowledged Mr. Humke's comment from Tuesday, January 24, 1995 of the pleasure in knowing that Mr. Bayer, a "home grown" individual from Nevada was appointed and Mr. Wyett echoes those feelings. He further stated that possibilities exist for cross-training between Parole and Probation, communications and teamwork overall with the Nevada Prison Systems. Mr. Pete English, Deputy Chief of Nevada Parole and Probation introduced himself and read from a prepared statement regarding an overview of the duties and responsibilities of the Department of Parole and Probation including, classification of offenders, supervision of offenders, staffing, and the use of the pre-sentence report. (Exhibit D). In addition, during his presentation, Mr. English referred to the a handout entitled Parole and Probation which sets forth further explanation of the department including statistical data. (Exhibit E). Mr. Humke asked Mr. English for the definition of a technical violation. Mr. English explained that a technical violation is also known as a "rules" violation. In other words, a new crime has not been committed but rather as an example, if an offender changed his address without notification to his parole or probation officer. They are not new criminal offenses, however, these violations are considered serious in that the department can measure how the individual is complying with their agreements of parole. Failure may indicate a relapse into the offender's previous lifestyle that got them into trouble in the first place. Mr. Wyett added that if a person addicted to alcohol or drugs is found under the influence, in lieu of revocation, the division uses alternatives within the community and within the division systems to elevate their supervision to house arrest or some other program such as treatment program, or intensive supervision. Mr. Humke recalled past legislation and called attention to the department's rather high rate of technical violations. Mr. Anderson complimented the department for the great help that was provided to the Assembly Concurrent Resolution (ACR) 71 Study Committee as much of the information was introduced or was being introduced. Mr. Anderson expressed his concern about the bail system and the statutes that were changed last session regarding the carry-over of bails in the justice court setting and asked Mr. Wyett if he felt there was a need for bail to assure the performance of the sentence when it is less than incarceration. Mr. English indicated this concept has not been explored and he was unaware of any other jurisdictions utilizing that type of system. Mr. Wyett stated when a monetary bail was placed on an offender then they are assisting in his failure to some extent since most of these individuals are making minimum wage at best. They can label a cost to them, but getting it is another storey. Of course, their main concern has always been restitution to the victim. Senator Adler added that he understood that having too large of a bail in place may provide a hinderance because then those funds could go to a deposit on an apartment to stabilize their life. Otherwise, they are more often than not placed in an unstable situation. Senator Lee inquired as to how many clients per officer, what is the national average, and when was the last time the department was granted more personnel. Mr. Wyett indicated that Deputy Chief, Carlos Concha would respond to Senator Lee's question. Mr. Concha stated he would be going over the data as to the ratio of officer per offender and the cost ratio in his presentation. Chairman James asked Mr. Concha to proceed. Mr. Concha read from his prepared statement which covered statistical data regarding the cost of supervising offenders per person and the various levels of supervision. (Exhibit F) His statement also touched on the amount of restitution recovered through the department. Mr. Concha referred to a handout entitled Work Units containing charts and graphs of statistics regarding restitution, cost of supervision, and pre-sentence reports. (Exhibit G). He went on to state that the Parole and Probation Department was doing approximately 8,000 to 9,000 pre- sentence reports per year. Mr. Concha reiterated the purposes of pre-sentence reports as used by the courts and prison systems. Mr. Concha discussed felony sentencing concurrence and provided statistical information thereto. Mr. Concha drew attention to the graph contained in (Exhibit G) which sets forth the age groups of those individuals going to prison. The majority are 27 to 31 years old. The area of 22 years to 36 years are the leading ages of those going to prison. Mr. Concha provided statistical data regarding a breakdown of supervised offenders and the costs relating to that supervision. (Exhibit F). In discussing the House Arrest program, Mr. Concha informed the committee there were currently 227 individuals in that program. Problems he sees in the intensive supervision, house arrest, and 305-DUI programs, is the cost factor. The costs are stated in detail in prepared statement (Exhibit F). The graphs show costs of housing inmates in prison versus the cost of treatment programs. In addition, 22% in 1990 were parolees being supervised. That has increased to 28% in 1994. Mr. Carpenter inquired of the panel, in regard to third-time DUI, when can someone go to house arrest or can they? Nancy Tiffany interrupted briefly to state she would discuss that question at her presentation. Mr. Anderson inquired if there was a disparity between urban and non-urban areas regarding felony sentence conviction concurrence. Mr. Concha stated there was a slight disparity in that the rural courts lean more toward the prison position. The majority of pre-sentence reports are coming out of Reno and Las Vegas. Mr. Anderson expressed his concern that perhaps in the rural areas the only choice was prison due to the lack of availability of alternatives to prison. Mr. Concha did not believe so because some of the rural areas did have alternative programs in place. Senator James asked Mr. Concha for a clarification of the cost of supervision of offenders. Mr. Concha reiterated the statistics stated in (Exhibit F), including the additional cost factor in the House Arrest program. The cost per day in this program is $6.90 which includes the ankle bracelet and the Breathalyzer so that cost is added to the other costs. However, that sum ($6.90) is defrayed by the offender if possible. Collected in FY94 from offenders paying their house arrest fees was $254,000.00. Mr. Manendo asked what the percentage was for those in the House Arrest program who paid their own way. Mr. Concha was not exactly sure but figured a ballpark figure was about 50%. Especially in the area of the 305 program, the majority of those offenders paid--maybe 80%. Mr. Batten asked about the funds for House Arrest and understanding that if the offender could not pay, the department of parole and probation picked up the tab, and wondered if that money was part of their overall budget. Mr. Concha stated there was a special account strictly for House Arrest fees which was part of the base budget. Senator McGinness asked if there was something along the lines of allowing them to pay $1 a day or minimal payments pro rata. Mr. Concha indicated that this was acceptable in order to make the offender assume responsibility for what he is getting. Mr. Wyett added that the 305 offenders pay religiously because the alternative is prison, hence making collection of those funds easy. Mr. Concha explained that the House Arrest program differed from the 305 program because the House Arrest individual is placed there in lieu of revocation because of technical violations. He stated the department is trying to work with the county jail in placing those types of individuals in house arrest rather than incarceration. If incarceration does occur it is because they have committed a new crime or there is a fear of flight. Mr. Concha concluded with a discussion on the restitution program, the return of sums to the victims of crime, and the almost double increase in use of handguns in crime. The offender is also required to pay $20 per month to the department to defray the cost of supervision. Restitution rate of collection is approximately 46% to 50%. Senator Washington wanted to know the problems the department had in collecting restitution from offenders. A discussion ensued between Mr. Concha and Mr. Wyett as to offenders who purchase items such as television sets, cars, cable television, jewelry, and other purchases but are failing to pay restitution. This affects the victims tremendously and Mr. Wyett would like to be able to seize these items from the offenders to apply those monies toward restitution. The drug and gang affiliations are handling large sums of money but the victims are still suffering. Mr. Concha stated they do attempt to make seizures through the courts; however, the victims are sometimes hard to identify and the money in that instance may just go back to the department. They are looking into avenues to improve that situation. Senator Washington asked for an estimate of the losses in not collecting restitution monies. Mr. Concha stated it would be impossible to estimate explaining for one example, an embezzlement action of $500,000--most likely unrecoverable. He also indicated one of the problems in seizure is storage of the property seized and then making sure there are no liens by others or that it is not property still owned by the bank. Senator James included that he believed there was a bill on the books already from last session that created a lien for the benefit of restitution for the victims of crimes. He added that he would be glad to look into whether there could be some sort of priority or filing done in connection with the present law which would give it some priority. Mr. Concha stated he would look into that matter along with the Attorney General. Mr. Sandoval asked if the department had the ability to garnish wages and if it would be of assistance for those offenders in the House Arrest program that were employed. Mr. Concha indicated it probably would but you would have to take a look at the means of the offender and taking care of himself and his family. Mr. Sandoval expressed his dismay with offenders on parole having possessions such as televisions, boom boxes, stereos and new cars and making payments on those items when in fact the department could be garnishing them. Mr. Concha indicated there were a number of parolees being released from prison and restitution is required. Once they are finished with probation, there is nothing the department can do about it. That is when the victims receive nothing because the parolee feels once he has been in prison, he has paid his debt. Mr. Anderson inquired about the televisions and radios the prisoners had in their cells at the prison and wondered if those items originally given to them as gifts from family would be confiscated by the department upon the prisoners' release for victims' restitution. Mr. Concha stated that could be done. Mr. Wyett interjected that the items in the prisoner's cells were not valuable in relation to trade-in value and often are sold by out-going inmates to in-coming inmates. The department is more concerned with the individual who has the ability to pay the restitution but is out buying and shopping and the victim is suffering. Mr. Batten expressed his respect to the officers of parole and probation and recognized the understaffing and lack of funds they deal with. He asked Mr. Wyett if the department had a "wish list" of three items they would be looking for that perhaps the legislature could assist them with. Mr. Wyett stated the main thing they were looking for was automation. The department of parole and probation, department of prisons, and the law enforcement agencies are all dealing with the same individuals and need to relay and provide information to each other. Automation between these entities through computers would be of great assistance. Senator Adler inquired if an automatic wage garnishment system similar to the one in place for child support where there would be an automatic wage garnishment upon these offenders getting out and getting a job would be helpful. This, of course, would include guidelines such as not being able to take more than 25% and an allowance for supporting their family all built into the wage garnishment system. Mr. Concha felt this would be effective for the individual who has the income; however, it would not work for the individual earning little to nothing. Senator Adler indicated also that there would be no "drop-off" after the individual completed his supervision, the garnishment would still be in effect. In addition, if it took effect as soon as they were released they would have to take that sum into consideration prior to purchasing other items such as a new car, new stereo, etc., because they would not have the funds available for those purchases or would not qualify to purchase those items. Mr. Concha agreed. Mr. Goldwater brought up the subject of Federal Forfeiture laws and the department indicated they have been very successful with these laws. Mr. Goldwater cautioned the committee in this area due to possible technical and constitutional implications and relayed a story he saw on 60 minutes which outlined the problems that can occur through the forfeiture laws. Ms. Buckley stated her concern that you would not get as much for the resale of items upon seizure compared to if you caught the abuse up front. She suggested a "contract" for restitution payments. After two missed payments a garnishment would commence. Ms. Buckley further noticed the statistics provided indicated that 60% on parole or probation were for drugs, DUI, and property offenses. Also, 45% of this population indicate those from the Nevada Department of Prisons (NDOP). What differentiations are there in how these two populations end up. Mr. Concha did not have any specifics but felt that some of those would probably be third and fourth-time offenders. Mr. Wyett interjected that the only life known by some offenders is prison and they do not accept rehabilitation or the chance to make a change. Ms. Buckley was looking at freeing up prison space to house violent offenders and the drug offenses and property offenses would be geared for alternative programs. She wondered why these same offenders were not now being diverted to these alternative programs--hence the statistics earlier mentioned. Senator Washington referred back to the restitution issue and including wage garnishment in the "pre-release program." He felt that restitution in the eyes of the parolee was low on the priority scale and agreed with the wage garnishment previously discussed. Mr. Wyett stated there were two types of individuals: 1) the individual unable to pay; and 2) the individual who refuses to pay. Also, most of the perpetrators know the victims in some way. The forfeiture and garnishment tools would be useful in the individual who refuses to pay. Mr. Batten approached the subject of forfeitures and the amount of revenue it can positively create. He felt a message needed to be sent out to the parolees for their responsibility of restitution and the forfeitures, seizures, and garnishments should all be utilized to the fullest. Mr. Batten expressed his interest in having the department of parole and probation come sit with him and draft a bill. Acting Chairman Humke brought the committee back to questioning the representatives of the parole and probation rather than the philosophical approach the discussions had taken. Senator Lee inquired as to whether the department of parole and probation had any authority to report to TRW or other agencies such as banks so that the individuals would be unable to purchase the items in the first place due to a restitution payment schedule rather than seizing the items afterwards which costs a lot of money for everyone. Mr. Concha informed the committee that they usually do not know about the individual's purchase until they do a home visit and actually see the items. They have no way of knowing what purchases are being made by the individuals. Mr. Carpenter asked for a work session for the bill draft of these issues. Ms. Ohrenshall asked if there were any statistics available showing the income range of their clients or the medium range. Mr. Concha stated, without automation, they do not have those statistics available. Chairman James stated someone has been working on a bill draft all interim to augment the collection ability for restitution and a report is forthcoming. Perhaps some additional language about automatic wage garnishment similar to that of the current child support laws in effect may need to be in place. Mr. Goldwater stressed the importance of placing language in the Bill Draft Request (BDR) about the ability to pay or an income level threshold so that the situation for the individual is not made worse by making them poorer which may increase their propensity to commit another crime. Senator James concurred. Mr. Alan Barnes, Operations Supervisor with the State of Nevada Division of Parole and Probation and Project Manager for the Life Skills project became his testimony. Mr. Barnes described the concept of the Life Skills program stemming from Assemblyman Anderson's ACR 71 hearings. Mr. Barnes indicated the study recognized that the criminal justice system is clogged up with the property offenders and substance abuse offenders--low level persons who are in the system doing these types of crimes to support drug habits. He stated that currently the division is supervising 6,000 individuals in this category. Further, 85% of all cases appearing before the district courts is directly related to substance or chemical abuse of some nature. The crime itself is another offense but there is always a linkage with substance abuse. These people have been in the system, having committed crimes, been adjudicated and through the system most likely starting as juveniles. Judges and society have washed their hands of them. This is one of the reasons they began looking into the Life Skills project. These offenders have three elements almost universally: 1) incomplete education; 2) sporadic or no work history; and 3) major chemical abuse program. They decided to focus on these groups. Mr. Barnes then read from his prepared statement attached hereto as (Exhibit H). He stated the State of Nevada has good educational systems, good counselors, etc., to tackle these areas but that they needed to work in a "cohesive" fashion to provide an integrated service to the offender so that each service knows what the other is doing. This is where people fall through the cracks. He relayed the current unrealistic approach on offenders today. Individuals who have never gone to a job interview, have never been up before 10 a.m., and are probably working at a fifth grade educational level are expected to become responsible people and ride buses all over the community and attend counseling and education and go somewhere else to work at a job when on probation. It is unrealistic. Mr. Barnes continued with reading from his prepared statement, (Exhibit H). He included that 90% of the people who appear in district court are not in custody. They are on the streets on OR or bail. Four to five weeks will take place before sentencing occurs--a long time to be out on the street doing dope. With the Life Skills program they will have been involved in the program from the day they enter a guilty plea. They become assessed and begin their program so when they appear before the court they can tell the judge about the program they are already working on and a foundation has been built prior to sentencing. This should enhance the classification system and help the prison systems, and provide a linkage to the community. He informed the committee that Judge Charles McGee, an advisor of the Life Skills project, has suggested that the people going through the Life Skills program, at the time they become employed will have a small garnishment of wages to help put money back into the program as an offset of the cost. Chairman James asked about the cost of the program. Mr. Barnes stated the supervision cost provided by Mr. Concha is the same. Mr. Barnes informed the committee the total projected cost in the budget was $600,000 per year. Mr. Barnes stated not all individuals will need all the components of the Life Skills program and therefore the individual cost is difficult to compute. Probably 99% of all parolees would go through Life Skills. About 60% of people placed on probation would attend Life Skills. A discussion about the added cost of Life Skills took place between Mr. Wyett, Mr. Barnes, and Chairman James. More figures as they become available will be provided to the committee. Mr. Anderson denoted his favoritism for the program and the ACR 71 study on recidivism was that it is akin to the "pay-me-now" or "pay-me-later" concept. If we do this and allow this program to take place we will cut down on our recidivist cost so dramatically and that is where the real dollar savings will come in and prison costs will not increase. It's a three-step program: the drug courts, what happens in prison; and the third component being Life Skills. Chairman James provided his thoughts about the possibility of "coddling the criminal" with these programs in the eyes of the public and the committees would need to consider this view also but that he was certainly open to alternative means rather than prison. Evidence and proof is important in dealing with this subject. Senator McGinness asked if part of the $600,000 contained a component for tracking these people so if it is approved you can come back in 1997 and show some figures. Mr. Wyett stated this would be an integral aspect to the program and he has in fact found a tracking program and is working with the advisory committee at the University Systems of the State of Nevada. Mr. Wyett assured the committee that Life Skills was not a "fuzzy, feely-good" program but is based upon simple realities. "Education helps self esteem. In Arizona, education programs have knocked the recidivism down by 23%. Employment keeps people out of prison. It puts people back into the tax base of our communities. It is a big self esteem issue. Counseling is a reality." Mr. Wyett further added that the program will not solve the war on crime but will address one element--it is a community-based project. Senator Porter opened his mind to the committee and the session that the committee needed to provide as many skills to help but at the same time he felt there was a lack of fear on the street that they will be punished because there are a lot of programs out there to prevent them from going to prison. Mr. Wyett retorted that these programs are not to be viewed as getting "soft" on crime but instead were a way to get "smart" on crime. We need to make space for the really violent criminals. Ms. Stroth inquired about the percentage of men to women on probation. Mr. Concha provided that as of January, 1994 there were 2,008 females being supervised and 6,096 males under supervision--a three to one ratio. Ms. Stroth also wondered if there were programs in place for domestic violence. Mr. Barnes indicated affirmatively and went over the Phase I and Phase II elements. Although Mr. Barnes referred to (Exhibit I) a handout entitled Division of Parole and Probation's Lifeskills Project, which sets forth an overview of the Life Skills program. Ms. Stroth expressed her interest in piloting a Life Skills program since she has worked in these areas in the past. Ms. Nancy Tiffany, Unit Manager overseeing the Pre-Release and 305 Resident Confinement Program for felony DUI offenders for the Division of Parole and Probation was introduced. Ms. Tiffany discussed the two programs in detail, including statistical data. Ms. Tiffany read entirely from her prepared statement attached hereto as (Exhibit J). Ms. Tiffany also referred to the handout attached hereto as (Exhibit K) entitled Total Paroles which details the 305 program and Pre- Release program and provides statstical data thereto. Ms. Tiffany asked Judy Jacoboni to address the committee to discuss the 305 program from a different prospective. Ms. Jacoboni is the Lyon County Chapter President of Mothers Against Drunk Driving. Ms. Jacoboni testified that she was a victim of a DUI offender. "In April, 1990, my 22-year old daughter, Michele, was driving home from work on US Highway 50 East and she got about a mile from our home in Dayton when she was hit by a drunk driver in a head-on crash and she died at the scene within just a few minutes." Ms. Jacoboni went on to describe her personal experience in going through the criminal justice system. In July, 1990, the offender was sentenced to 20 years in prison. After sentencing, Ms. Jacoboni felt that in time her wounds would heal and her family would be able to restore itself somehow with a great deal of effort. However, she anticipated that in approximately six years she would receive a telephone call from the Division of Parole and Probation regarding a hearing for the offender. She thought that about one-third of the sentence would be performed and this would give her adequate time to rebuild her family. That telephone call came in December, 1992 as a courtesy to let her know that the offender was going to be released into the community in about one month. In January, 1993, the offender was released. As a victim she felt she was not advised or consulted and felt "powerless". Those early emotions when her daughter was killed were revisited. Further, she was denied any information on the offender in reference to employment or residence until the parole hearing in June, 1993. It was at that hearing that the offender was released back into the same dysfunctional relationship she was in when the offense occurred. Ms. Jacoboni urged the legislators when they are considering everything on their agenda that they always remember "what about the victim, how is this going to affect the victim?" Ms. Jacoboni referred to the last page of (Exhibit K) as her "wish list" as the legislature expands on improving the criminal justice system this session. Mr. Wyett concluded the presentation with comments and thanks to the committee for their time and consideration now and during the session. Ms. Buckley asked what life without the possibility of parole meant. Mr. Wyett answered ten years. An informal discussion regarding this question went on between the committee, Mr. Wyett, and Mr. Robert Bayer, Director of the Department of Prisons, and it was thought that it would most probably be ten years. Mr. Bayer clarified that they could appear before the pardon's board in ten years and he would get the percentage figures for the committee. Mr. Humke spoke to the Assembly committee members to take the folders and the material that has been distributed during this week of joint meetings. Chairman James thanked the speakers for their presentation and the meeting was adjourned at 10:50 a.m. RESPECTFULLY SUBMITTED __________________________________ Joi Davis, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Joint Meeting of the Assembly and Senate Committees on Judiciary January 27, 1995 Page