MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session January 31, 1995 The Committee on Judiciary was called to order at 8:38 a.m., on Tuesday, January 31, 1995, Chairman Anderson presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. 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 Mrs. Dianne Steel Ms. Jeannine Stroth COMMITTEE MEMBERS ABSENT: None GUEST LEGISLATORS PRESENT: Mr. John W. Marvel, Assembly District No. 34 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Ms. Ande Engleman, Nevada Press Association Ms. Melissa Reed, Legislative Intern Mr. John Sarb, Administrator, Division of Child and Family Services Mr. Ben Spector, Legislative Intern Mr. John W. Riggs, Sr., Nevada State Rifle and Pistol Association Ms. Nancy Tiffany, Nevada Parole and Probation Mr. Ryan Rowlands, Governor Miller's Office Mr. Eric Cooper, Nevada Sheriffs and Chiefs Mr. Bob Cavakis, Youth Corrections Mr. Rob Calderone, Washoe County Juvenile Services The Honorable David Gamble, District Judge, Douglas County Mr. Scott Cook, Douglas County Juvenile Probation Mr. Phil Galfond, Reno Police Department Mr. Stan Olsen, Las Vegas Municipal Police Department Mr. Frank Barker, Las Vegas Municipal Police Department Mr. Terry Lesney, Las Vegas Municipal Police Department Mr. Ben Graham, Nevada District Attorneys Association Ms. Patricia Justice, Clark County Mr. David F. Sarnowski, Chief Criminal Deputy Attorney General Ms. Roberta Gang, Nevada Women's Lobby and National Association of Social Workers Mr. James J. Jackson, Nevada State Public Defender's Office ASSEMBLY BILL NO. 1 - Requires district attorney to include count of habitual criminality if defendant has sufficient convictions. ASSEMBLY BILL NO. 76 - Makes various changes regarding certification of juveniles for trial as adults and release of judicial records concerning juveniles. Mr. John W. Marvel, Assembly District No. 34, stated he sponsored A. B. 1 and A. B. 76. This is the opportune time to zero in on crime which is of great concern to the public. He realized there will be a lot of contention insofar as lowering the age from 16 to 14. The time is right now to represent to our constituents of the State of Nevada that we are serious about being tough on crime. We realize this might be a fiscal impact. At the same time, we may be able to deter the revolving door concept. Chairman Anderson advised we may be hearing sections of this particular question in some other forums. Mr. Marvel added that Chairman Humke is a juvenile justice expert on the Judiciary Committee. Chairman Anderson gave the committee a short overview of the two bills on the agenda. Basically, if one is convicted of a crime involving fraud or intent to defraud with three prior convictions involving fraud or intent to defraud, which may be punishable by imprisonment for not less then 10 nor more than 20 years. Both bills deal with the discretionary power that is currently held by the district attorneys and the judges. Ms. Ande Engleman, Nevada Press Association, supported A. B. 76. There have been a lot of problems with juveniles who have performed shocking crimes. The media is prohibited from publishing juvenile offender names. This bill would allow the news media to have access to the youth's name and publish it where appropriate. In the past juveniles have realized that they are safe from identification. In order to lure younger people into crimes, older criminals sometimes use juveniles by telling them they will never get exposed. The Honorable David Gamble, District Judge, Douglas County, testified in regard to A.B. 76, Section I, line eight. There are two categories of offense, murder and attempted murder, where juveniles are treated like adults. They are treated in all respects like an adult case. This adds to those two categories any felony committed with the use of a deadly weapon. Judge Gamble warned that the definition of a deadly weapon in Nevada is very broad and based on its use. It is not just firearms or knives. A broad net of kids could be tried as adults because of the definition in Nevada of a deadly weapon. Second section of the bill has to deal with certification up. If they beat you to death with a microphone, Mr. Carpenter inquired of Judge Gamble, what is the difference of a deadly weapon. If we start narrowing it down again, are we not in the same situation. It seemed to him whatever you may kill someone with, the person is still dead. Judge Gamble agreed and alerted the committee that this legislation is broadening the definition by a large margin. It would not just be murder. The issue is battery with a deadly weapon, assault with a deadly weapon. When those are charged as felonies, there may be no actual injury at all; but, the use of a deadly weapon by itself enhances it. Chairman Anderson suppositioned a certified 14-year old arrested at 15 years and 17 years for shoplifting. Then at 19 years arrested for robbery with a deadly weapon. He would be certified up and get the enhanced penalty because of the fact that in the first and final instance he had used a weapon. Judge Gamble informed that the individual would not have to be certified, because in the example, he is already an adult. There is no enhancement in this bill for use of a deadly weapon other than enhancement from juvenile to adult. It is actually an age change or treatment change from the juvenile to adult system. Each offense would be dealt with separately in the Chair's example. One major change in A.B. 1, Section 1, line 5, changes age of juvenile from 16 to 14. If you leave in the discretion of the Juvenile Court to accomplish that task, Judge Gamble did not believe anyone had any quarrel with the idea of changing age of certification. There are still going to be 14 year old youths that need to be treated as juveniles. There also will be 14 year old youths that need to be certified up. Mrs. Steel inquired if a 14-year old had to be certified or could it still be discretionary. Judge Gamble informed that the discretion lies with the Juvenile Court, not with the district attorney's office. In a sense it lies with the district attorney's office because it can move to certify or they can choose not to. Then the court has the option of doing either one. Judge Gamble advised there are two separate issues the bill compounds. The certification is not automatic. The district attorney and judge have the discretion to certify or not to certify. Secondly, if this bill is enacted, it says that if a juvenile is 14 years old and charged with a felony involving the use of a deadly weapon, he is automatically treated as an adult without regard to certification. The third part of the bill is the one that Chairman Anderson was addressing, and has to do with release of records. If a juvenile is charged as an adult, the juvenile records of the offender's past when he was a juvenile are available without court order under certain circumstances. This basically happens already without a court order, for example, when a young adult is charged, a pre-sentence report is furnished to the judge before he is sentenced. A pre-sentence report contains the history of his juvenile record. This would conform the law to the practice which is currently in effect. It broadens the availability of juvenile records without a court order. Chairman Humke posed a question on Section I to Judge Gamble regarding changing of certification upward. In the process of certification upward, does it mean one is giving up treatment as a juvenile to the adult justice system. Judge Gamble responded that there are certain juveniles who have no treatment modality available that will help them. The juvenile judge would have the discretion to decide after review of the juvenile case. When a juvenile is treated as an adult, it may be a deterrent. Chairman Humke asked Judge Gamble what will happen to 14-18 year olds in the adult system. Judge Gamble advised that right now when a 14 year old is convicted of murder and is sentenced to prison: (1) there will be some deaths, (2) in imprisonment cases, there is no facility currently in Nevada to house those youths. Youths in prison are basically in isolation which is a far greater penalty that what an adult would pay in similar circumstances. Chairman Humke advised some states have gone to an ad hoc system whereby if a young person is certified upward and is treated as a adult for one of these serious offenses, then the Court finds there is no place for treatment in the adult system, they will remand that young person back to the juvenile system for specialized hard-core treatment. When Judge Gamble was asked if he would favor that system, he replied "certainly." Judge Gamble noted the reason it is important to leave the discretion to the Court system cannot be overemphasized. There has been some success for Nevada youths in a hard-core program in Tennessee. Judge Gamble proposed there is another option for a felony committed with a deadly weapon. The criteria for certification up is manyfold based on the severity of the offense, age, record, etc. If a deadly weapon is added as another criterion for certification up, even presuming offenses committed with deadly weapon should be certified, then require the judge to make specific findings why he did not certify, it would be the accountability that is needed from the judges. It would also be the discretion the judges need to determine what youths can be successfully rehabilitated in Tennessee or may as well go to Nevada State Prison. In regard to Mrs. Engleman's request for newspapers to publish juvenile names, Mr. Carpenter thought it was covered in Nevada Revised Statutes 62.355 Publication or broadcast of name or race of child and nature of charge. He did not see it being amended in this bill. He inquired of Judge Gamble if this bill would do what she was talking about. Judge Gamble replied that he did not think so. The Chair informed that the committee generally discussed the major enhancement juvenile bills and an overall view will be given of how that will be processed. Judge Gamble pointed out that S.B. 42 has direct impact on A.B. 76. They overlap dramatically, as does A.B. 1. Mr. Goldwater asked if it was possible, if upon passage of A.B. 76, the State could execute a certified up 14 year old. Judge Gamble responded the possibility exists right now. For purposes of murder and attempted murder, youths are treated as adults automatically. One of the factors in death penalty enhancement is age. Judge Gamble informed A.B. 1 amends the current habitual criminal act of the State of Nevada. Since the last session, we have all heard a lot about three strikes you are out; and, basically have had it in certain forms. What this bill does is remove all discretion on the part of the district attorney and judge to determine whether the offender is a habitual criminal. Judge Gamble also noted S.B. 40 is another version of three strikes you are out in which a measure of discretion is left for the Court and the prosecutor, but it specifies what crimes are to be used. The horror story example is where someone writes three $250 checks over a period of three years, and is sentenced to 20 years or life. Judge Gamble stated he would hate to see the discretion taken away from the prosecutor and the judge. The habitual felony act now is used as a bargaining tool. If every third time felon faces the habitual felon act, they will not plead and the cases will be tried. Lovelock prison facility, for sure, will need to be opened and expanded. Mr. Sandoval requested a further expansion of what is included within a misdemeanor or gross misdemeanor where fraud or attempted fraud is an element. Judge Gamble stated fraud or intent to defraud is the idea of cheating someone out of money, or cheating someone out of something. There is a certain category of misdemeanors this would cover. Mr. Sandoval asked if most of these crimes are white collar crimes that do not involve violence. Judge Gamble advised those are included. There are a large number of nonviolent offenses included. If you are concerned about violent crimes and crimes against a person, this is not the bill to accomplish it. S.B. 40 is more directed toward the violent, repeat offenders. Assemblyman Marvel drafted a framework A.B. 1 to hang from it what you would. Dennis Neilander, Research Analyst, gave background of the bills. Three major areas of the habitual statute have been researched. Two of them are in this bill: discretion to charge by the district attorney, and discretion with the judge to find the count of habituality. The third area is addressed by S.B. 40 which lists what crimes trigger the enhancement status. It takes any crime that carries a penalty that exceeds 10 years. They are all violent and sex related crimes, serious felonies. This bill does not address the third area. However, you will see other measures that do address that later. A chart of those offenses will be provided to the committee. Mr. Carpenter stated that in his district, people are most concerned about the plea bargaining of the district attorney. He felt the discretion should be left with the judges and mandatory that the district attorneys charge the habitual criminal statute. Judge Gamble informed that the way the habitual criminal act is utilized now, even though that charge is contained in an Information, the jury does not see it until after the trial. After the trial the judge makes a determination of habituality. Then the judge sentences accordingly. The bargaining issue comes up before trial. If you take away the district attorney's prerogative to charge or not, then a higher number of trials are going to occur. Conceivably, in some ways it could be limited using the same list of violent crimes that Mr. Neilander spoke of. Also, the DUI statute now is not allowed to be plea bargained. Using a limited number of violent and otherwise serious crimes can limit the discretion and number of plea bargaining cases. Mr. Manendo cited an example of a woman who shops weekly at Smith's and helps herself to candy, eating it while shopping. Would this be considered petty larceny five times. Judge Gamble stated it would never happen; but, in theory it could now, not because of any change in this bill. Then she could be sentenced 10- 20 years. That proves discretion because it could happen now and proves Judge Gamble's point. Mrs. Ohrenschall inquired of Judge Gamble about cases where people prey on senior citizens. One case she is familiar with is where a person had three or more felony convictions for paper hanging which involved getting seniors, who are in bad health, to co-sign checks. The offender received probation. She asked if that criminal in the Judge's opinion should not be prosecuted as a habitual criminal. Judge Gamble responded he was not saying that at all. There certainly are some paper hanging cases where they should be. There is a case, Houk v. State of Nevada, where a recent decision in which an offender received 10 consecutive five year sentences was handed down. Justice Springer very vociferously dissented. The crimes against seniors enhancement could also be utilized. Judge Gamble stated appellate courts are needed when discretions are abused. Mrs. Ohrenschall concurred with Mr. Carpenter in removing some of the discretion from the district attorney and allowing it to the rest with the judge. Mr. John Sarb, Administrator, Division of Child and Family Services, noted his perspective that we are raising a tremendous crop of hoodlums in these Nevada towns. We are at a point now when we are ready to consider that some juveniles really do need to be treated as adults. There will be a lot of legislation on this subject. They seem to have five issues: (1) offenses for which children will be certified, i.e., firearms, deadly weapon, sex offenses; (2) age at which a child is presumed to be an adult for either presumptive or automatic certification, i.e., 16, 14, or 8 years of age; (3) whether or not there is a certification mechanism or discretion to move offenders between the adult and juvenile system; (4) which judge has first crack at that, whether it is a presumptive certification and juvenile judge can or cannot certify the child up or automatic certification like we have for murder and attempted murder. The adult court judge would have the prerogative to certify him down. And, (5) where the child sits during the pendency of the trial, either in juvenile hall or the county jail. Mr. Sarb further noted the following in looking at A.B. 76, and the effect in terms of number on the juvenile system. In six months if a deadly weapon was used as a standard, it is estimated there would be 44 boys and six girls subject to this provision in a year. About 12 of the boys would be handled as adults for crimes requiring mandatory prison sentences. Estimated about three of those six girls would be sent to prison. This gives an idea of the impact in terms of numbers. Interestingly, the difference between firearm and deadly weapon, is not that many, about four youth. As a Division, they support the idea. It has been unspeakable to admit there are some youth that cannot be rehabilitated. Mr. Sarb thought it was important to have judicial discretion determining what cases should be considered adults. Three cases in the last couple of years involving a 13 year old girl and a 16 year old boy were imprisoned as adults. Department of Prisons because of lack of facilities, requested the Division of Child and Family Services to provide services for. Mrs. Buckley requested what type of a deadly weapon was used in those deadly weapon cases. Mr. Sarb replied that knives were used in all cases. There is a fair amount of confusion as to what constitutes a deadly weapon. It has to be a weapon that is inherently dangerous, designed and constructed to cause harm. Weapons of choice were firearms, knives, fists, and rocks. Mr. Perkins made a couple of comments. The public is upset with the adult system and lack of discretion there. Those particular dislikes do not necessarily extend to the juvenile justice system. The important topic is where the juvenile is going to be incarcerated, the county jail or juvenile detention. The point Mr. Perkins made is that discretion is very necessary in the juvenile system. Mr. Humke addressed Mr. Sarb by stating the differences between adults and youth, his division can not only treat but deal with the families of youth. From statistics at Nevada Youth Training Center (NYTC) do the youth involved in serious offenses have any family? Mr. Sarb indicated it is a fair statement. The more violent offenders have no family to go home to or the adult members of a family are involved in criminal activity. Mr. Humke asked if he felt this were a trend of no family involved in the more serious offenses. Mr. Sarb responded that the number of parolees have no home to be released to. Mr. Humke inquired if this was an indicator of when to give up on an offender if no family is involved. Mr. Sarb stated that when they are seeing a third time offender, progressively more serious, while they try to individualize programs, there are limits. If it did not work the first two times, chances are it will not work the third time. Chairman Humke asked one more question. It has been pointed out that perhaps the loosening of confidentiality could be faulty in this bill. Philosophically, about loosening of confidentiality as to juveniles involved in criminal activity, Mr. Humke asked Mr. Sarb if he favored it as a rule. Mr. Sarb replied that generally there is room for loosening the current requirements. The bill drafts he has seen speak to the proceedings themselves or the records. The issue for each of them is presumed open unless closed by the judge or presumed closed unless opened by the judge. Mr. Sarb cited, for example, if he knew a 24-year old auto thief lives in his neighborhood, he can self protect. It does not matter to his car whether it was stolen by a 24 or 16 year old person. With regard to Mr. Perkins' statement that the public still has some sympathy for the juvenile system, Mr. Humke asked Mr. Sarb if this would change if confidentiality went away. Mr. Sarb thought that the public reaction to the juvenile system is split. One perception by the public is that nothing of serious consequence happens to the offenders. It is babysitting increasingly more dangerous juveniles. There is a benefit to the juvenile system in the public knowing what their juvenile system does. There is some worth in public peer pressure that says whether you are 14 or 24 years old, we do not like this. Mr. Ben Graham, Deputy District Attorney, Clark County, and also representing Nevada District Attorneys Association, made the following comments on A.B. 1. The real goal is to try to take the violent offender and keep them off the street for as long as we can. Presently, the habitual statute is working and may need tuning. They know when they have an individual that has committed an offense and when they may be subject to habitual criminal status. We look at the case on which the person was arrested this time. They determine the strengths and weaknesses of the case and determine what the case is worth in the sentencing structure. We know what judge will hear the case and his feelings about sentencing. Frequently, if we have a good case against a violent offender, we know they will get substantial time in prison. Generally, the only time we file a habitual criminal is when the offender will not plead. Frequently, we will offer a deal because as a prosector we have some problems with the case, i.e., witness, identity and suppression issues. We might not be able to get a conviction to send the offender to prison at all. If the case is lost, the offender walks out the door free. On the other hand, a deal will be offered to the defense attorney. They know we have problems with the case; but, they also know we have a fair shot at getting a conviction. Frequently, we will give away the habitual criminal statute in a plea knowing that the offender will take the plea and will spend "x" number of years in prison for sure. If you take away the discretion of the district attorney, the initial charge will be filed and serve notice the habitual criminal will be added. A defendant will not plead guilty because they have nothing to lose by going to trial. More cases will be tried. Fiscal costs will increase substantially. As the Chair indicated, use this bill as informational, or as Assemblyman Marvel said, maybe use this as a skeletal bill to put a consensus together. In summation on A.B. 1, as a district attorney, we are not so convinced that the habitual criminal act is not working. If a plea bargain is made, there is a reason for it; and, it is not to make it easy on the prosecutor. It is to make sure to get a conviction where maybe we would not have otherwise. Mr. Carpenter stated the perception of the public, right, wrong, or indifferent, is that there are too many plea bargains. If you are not going to be able to convict that offender, he did not understand why a defense attorney would plea bargain it. Mr. Graham replied that they know he is guilty but there may be proof problems. There may be a witness that dies or not show up. They are pretty sure they have the right person, but being found not guilty and not doing it, are two different things. Mr. Carpenter reiterated that the public perception is that they should be trying these offenders if they are guilty. Then let the public see that you had some problems. The procedure needs to be gone through if the public is going to change their perception of what has happened. Mr. Graham appreciated that sentiment. When they have a victim, they explain to the victim why a lesser charge will be offered. Basically, you elect your district attorney to make those judgment calls. Mr. Sandoval inquired of Mr. Graham if he was implying more cases will be lost without plea bargaining. Mr. Graham replied that there will be some offenders who will be found not guilty. There will be some guilty people, who would plead guilty, that will walk because we are not able to reduce the charge. Mr. John W. Riggs, Sr., Nevada State Rifle and Pistol Association, addressed A.B. 76 and advised they are in favor of this bill. The gun is always blamed for everything that happens with these children or in any crime where a gun is present. Because of too many plea bargains, the bill is endorsed. The legislators were elected to try to correct the fallacies of plea bargaining and soft on crime judges. The people of Nevada want legislators to turn this around and look for the cause and effect of crime and not necessarily the weapon that is used, but how it is used and why. His organization would prefer the age level be lowered to 12. Drugs are the biggest underlying cause in major crime today. Mr. Frank Barker, Las Vegas Municipal Police Department, advised they have a great deal of information on why they support A.B. 76. He reminded the committee a member of his organization will be here at all sessions. Any information needed, please contact one of their representatives. Mr. David F. Sarnowski, Chief Criminal Deputy Attorney General, testified that A.B. 1 needs to be reviewed along with S.B. 42. His office is here to assist in developing a proper response. If there is a requirement that it become mandatory, at least under the language of A.B. 1, he suggested that he would have two choices: (1) not to prosecute many crimes now prosecuted, or (2) if charges are filed, almost without exception, the prison defendants have at least two if not more felony convictions that would qualify them under the proposed bill. It would be enlightening if the Department of Prisons gave the committee an analysis to see how many offenders during a year would qualify for treatment under this bill. Likewise, under A.B. 76, if we are going to lower the age and we see more certified juveniles coming into the adult system, there will a point in time that it is not cost effective for Nevada to continue to send them to Tennessee. It would be more cost effective to house them here. Right now the Department of Prisons does not have the facilities or trained staff to handle the juvenile offender in large numbers. If you put large number of youths in with the predatory convicts, there will be problems in the system. The State will be putting itself at risk unless resources are provided to handle the juveniles. Mr. James J. Jackson, Nevada State Public Defender's Office, testified against A. B. 1 and A.B. 76. This is one of those times found to be in total agreement with the prosecutors. When you have a situation where the criminal defendant has no choice, he will take the choice to go to trial. For the record, the Chair requested correspondence relative to changes in A.B. 1 and A.B. 76 from Attorney Karen C. Winckler of Wright, Judd & Winckler Law Firm be entered as (Exhibit C). Chairman Anderson declared the hearing on the bills closed. A work session will be scheduled for further considerations. Chairman Anderson informed of bill introductions that require committee introduction to be made at this time. Mr. Anderson read the summaries to the committee and asked for committee introduction of the following Bill Draft Requests (B.D.R.): BDR 15-845 SUMMARY--Eliminates certain crimes relating to federal food stamps. BDR 41-917 SUMMARY--Makes various changes to provisions governing regulation of gaming. BDR 41-915 SUMMARY--Provides for regulation of inter-casino linked systems relating to gaming. BDR 3-1460 SUMMARY--Revises provisions governing short-term tenancies. ASSEMBLYMAN HUMKE MOVED FOR INTRODUCTION OF THESE BILL DRAFTS. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. There being no further business to come before the committee, the meeting was adjourned at 10:05 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Chairman Bernie Anderson Chairman David E. Humke Assembly Committee on Judiciary January 31, 1995 Page