MINUTES OF THE JOINT MEETING OF SENATE COMMITTEE ON JUDICIARY AND ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session February 8, 1995 The joint meeting of the Senate Committee on Judiciary and the Assembly Committee on Judiciary was called to order by Chairman Bernie Anderson, at 8:45 a.m., on Wednesday, February 8, 1995, in Room 4401 of the Grant Sawyer State Office Building, Nevada Legislature, Las Vegas, 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 Senator Dina Titus ASSEMBLY COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman absent/excused Ms. Barbara Buckley, Vice-Chairman Mr. Brian Sandoval, Vice-Chairman Mr. Thomas Batten Mr. John Carpenter Mr. David Goldwater Mr. Mark Manendo Ms. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Mike Schneider Ms. Dianne Steel Ms. Jeannine Stroth STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Allison Combs, Research Analyst Denice Miller, Sr. Research Analyst Patty Hicks, Committee Secretary Jackie Valley, Committee Secretary OTHERS PRESENT: Honorable Jack Lehman, Eighth Judicial District Court Judge Joseph Guild, Attorney at Law, State Farm Insurance Companies Sandy Heverly, Executive Director, Stop DUI Tom Pitaro, Attorney at Law Kathryn Tisdial Graves, private citizen Paula Treat, Nevada Judges Association Mel Adkins, Clinical Director, Nevada Salvation Army Eric S. Cooper, Nevada Sheriffs and Chiefs Association Chuck Short, Court Administrator, Eighth Judicial District Court John W. Marr, Managing Partner, Choices Unlimited Joe Rychic, private citizen Ted Manos, President, Nevada Attorneys for Criminal Justice Karen C. Winckler, Attorney at Law Honorable Brent Adams, Second Judicial District Court Judge Paul Corbin, Chief, Nevada Highway Patrol Dan Hammack, Nevada Highway Patrol Jim Hawke, Department of Motor Vehicles and Public Safety Judy Jacoboni, Chapter President, Mothers Against Drunk Driving Liz Breshears, Chief, Bureau of Alcohol and Drugs Nancy Tiffany, Unit Manager, Nevada Parole and Probation Dave Kladney, Attorney at Law ASSEMBLY BILL 86 - Expands circumstances under which proceedings and sentences for persons convicted of certain offenses relating to controlled substances may be suspended or reduced. Denice Miller, Senior Research Analyst, Legislative Counsel Bureau, introduced herself to the committee indicating that she served as staff to the Assembly Concurrent Resolution (A.C.R) 71 subcommittee. Ms. Miller explained Assembly Bill 463 from the previous legislative session dealt with the expansion under which someone could be admitted to a drug court program to include unlawful use of controlled substances. During subcommittee hearings, testimony showed increase in eligibility requirements was working well for the Drug Court. The Drug Court in Clark County has been highly successful. Accordingly, A.B. 86 expands those requirements. Ms. Miller stated testimony from Judge Lehman will address the success of the program. Studies have shown in Miami, where the use of Drug Courts is widely used, the recidivism rate was 80% and that has been reduced to as much as 20% in certain circumstances. This was with a Drug Court program that had only been established for one year. The success is measured on the recidivism rate. Ms. Miller explained the eligibility requirements proposed have been expanded to include "unlawful possession for sale." The subcommittee considered but did not adopt certain proposals pertaining to trafficking offenses. Chairman Anderson stated 10% of those who appear in the Drug Courts do not repeat based upon their first brush with the law. The best scenario has proven to be the Drug Court program in Miami, Florida. The Oregon system was not as successful. The data was developed out-of-state because at the time of the study there was no program in the State of Nevada. Eligibility requirements of drug courts vary from state to state. The conference in Miami showed the program coordinators there wanted to completely open up the eligibility requirements. The subcommittee found that Drug Courts across the states are all looking at expanding their eligibility requirements. Ms. Miller explained the idea of establishing Drug Courts was first made in Miami about seven years ago. Current Attorney General, Janet Reno, was involved in the initial concept. A tremendous effort was made to curb the drug trafficking there but it was not working so the idea was made to catch someone at the time they were arrested for a drug crime and get them into treatment immediately, without going through a trial, then a good effort was made at getting the individual the help he needed. In a normal criminal procedure, at the moment of crisis (the time of arrest), the person is convicted, goes into prison where there is no treatment, then comes out of prison with the same substance abuse. The Drug Court was intended to reach the individual at the time of crisis, get them into immediate treatment with a Drug Court Judge who acts as a father/confessor. The individual has to come in weekly and frequent urinalysis is conducted on the offender. In most cases, they are required to pay a certain sum so they have a vested interest in the program also. There are relapses, but that individual is not evicted from the program immediately unless a consistent pattern develops. The offender has a good deal of incentive because they know if they get through the program, there is no conviction. It is a two-fold program because they are getting the treatment they need and the prison costs are not elevated by incarcerating these individuals. The advantage of no conviction is those individuals are more readily employed without a conviction on their record. Another advantage pointed out during subcommittee is the savings on the expense of a trial. Of course, there are costs incurred in the managing and staffing of a Drug Court. The offender's fee is intended to cover some portion of that. Chairman Anderson pointed out in A.B. 86, page 3, section 4, subsection 3, lines 37-38, this language broadens the opportunity for a judge to put someone into a Drug Court Program who is helpful in convicting a more serious offender. Ms. Ohrenschall wondered if under the current system of justice, doesn't the judge and the prosecution already have that power? Chairman Anderson explained that that particular language broadened the power of the judge for dealing with certain individuals who are "helpful." Ms. Ohrenschall reiterated that she believed the court already had the power to act in that capacity. Honorable Jack Lehman, Eighth Judicial District Court Judge, testified that the matter of Drug Courts was brought up about two years ago primarily by the Defense Lawyers Association, Tom Pitaro. Judge Lehman stated at the present time the Drug Court does not allow persons charged with the sale of any drugs into the program. He emphasized a drug addict will often buy enough to support his habit for an extended period of time so he may be carrying around a quantity sufficient to be put in the category of possession with intent to sell. However, in reality, he has not been caught selling and he probably got a better price by buying a larger quantity. This is the type of person that belongs in the Drug Court Program because he is a drug addict. The program would include those individuals who do not wish to participate and cooperate with the Narcotics Division to supply names of people who are supplying drugs. In addition, at times the District Attorney's office is not willing to plea bargain because the offender has more than one prior drug conviction and/or arrest. Therefore, this individual would be included in the Drug Court Program. Judge Lehman explained A.B. 86 was mainly designed to expand on the eligibility of persons attending the drug programs. The State of Oregon Drug Court program has very expanded provisions. Judge Lehman expounded on their philosophy somewhat. Mr. Carpenter asked if the current legislation would allow sellers into the program or not. Judge Lehman stated he did not think so. The decision on who gets into the Drug Court is made between the District Attorney's office and Judge Lehman. Judge Lehman indicated that he leaned heavily on the District Attorney's recommendation. However, he would oppose anyone caught selling drugs being allowed into the program. Mr. Carpenter inquired about the expansion of the legislation to other jurisdictions and what if those judges were not as tough as Judge Lehman would they have that power to let sellers into the program? Judge Lehman stated that if the charge was reduced to possession with intent to sell, the answer would be "yes." Judge Lehman indicated that Judge Brent Adams and Judge Peter Breen, from the Second Judicial District Court in Reno, Nevada, have been consulting with him, watched the program in action, and attended the National Association of Drug Court Professionals conference in Las Vegas, and they would have the same inclination he has. Judge Lehman felt that Reno was the only area currently large enough to be considering a Drug Court Program. Judge Lehman favors the legislation as written. Ms. Ohrenschall inquired of Judge Lehman if he viewed A.B. 86 as assisting the individual who has had prior drug problems but for one reason or another has not had the opportunity to go into the Drug Court Program. Judge Lehman stated that was correct. Ms. Steel wondered what the difference was between a "trafficker" and a person charged with "possession with intent to sell." Judge Lehman clarified that it involved the amount of the drug. There being no further testimony on A.B. 86 the Chairman opened testimony on the next agendized item. ASSEMBLY BILL 88 - Makes appropriation to Eighth Judicial District for expansion of its program of treatment for abuse of alcohol or drugs. Chairman Anderson explained A.B. 88 would allow the sum of approximately $250,000 of state funds into the administration of the Eighth Judicial District Court and the expansion of the Drug Court Program. He further explained the various types of funding of the Clark County Drug Court Program currently and the state's role in the funding of the future of the program. Judge Lehman introduced Jon E. Marr, Director of the Clinic that administers the acupuncture and counseling for the program, and Chuck Short, Court Administrator of the Eighth Judicial District Court who has worked in the program since the beginning along with Anna Peterson (not present). Judge Lehman thanked the legislators for their attendance and invited everyone to attend his program at any time. He gave the committee a background of the Drug Court Program he manages. He reiterated Ms. Miller's earlier comments about the establishment of the Drug Courts in the State of Florida because of the influx of the enormous amounts of cocaine in that state. He explained the average "brick" of cocaine that was purchased for $18,000 wholesale is then "diluted" ten times before hitting the streets and is turned around and sold for approximately $250,000.00. The war on drugs in the 80's was to intercept the drugs, causing the price to go up, so the usage would go down. However, studies show that regardless of how many kilos of cocaine are seized, the price of cocaine had not fluctuated even five cents. The Florida Supreme Court decided to go after the users because then you can do something to the people using it. The Florida Supreme Court also felt that putting addicts in jail does not accomplish anything. Hence, the first drug courts became effective in the State of Florida. He discussed the initial concept of the program by Judge Goldstein in Florida. In Miami, the commissioners arranged for a percentage of the fines to go to the Drug Court program and it was funded in that fashion. Those funds enabled them to hire an administrative staff, open a clinic for counseling and acupuncture, and put 1,000 people into the program. The Miami program has been in effect seven years and that is why Judge Lehman still refers to that program as they have the best statistics. Mr. Tim Murray, with the Miami program, informed Judge Lehman that after seven years of operation, their recidivism rate, including all arrests (re-arrests and misdemeanors) is 26%. The average recidivism rate for programs using counseling alone is between 50 and 60%. The people incarcerated as addicts have a recidivism rate of 80%. The Miami program has expanded their program as far as eligibility requirements to include not sellers but persons charged with non- violent crimes. Judge Lehman stated that the Drug Court Program in Nevada started in October, 1992. In 1990 he was elected as Chief Judge of the Eighth Judicial District Court. During his training of that position he attended a seminar regarding Drug Courts. Sitting on the bench he saw the enormous impact that drugs had on the court calendar--approximately 70 to 80% of the cases coming before the criminal court were drugs or drug-related. In 1991 a variety of persons from the Nevada area went down to view the Miami Drug Court. Later in the same year, several of the same persons went to the State of Oregon to view their program. The county opened up two schools, one for reckless driving, and one for driving under the influence, and those funds were used to fund the Drug Court Program in Clark County. During the first year of operation the above-referenced schools have netted approximately $400,000 per year. A clinic called Choices Unlimited originated in Reno, Nevada, wherein the doctor who was a board-certified internist heard about the Drug Court Program and decided to open the Reno clinic which was quite successful. This internist was charging $2,800 for a one-year program. Judge Lehman asked him what he would charge if we were to establish a Drug Court program in Las Vegas. He quoted them $1,000 per year. During the first year, 400 people were placed in the program. Now, in the 28th month, the Vegas program has maintained about 400 people in the program at all times. The cost, including all the urinalysis, is $1,200 per year, per individual. The program has 174 graduates. Of those 174 graduates, the recidivism rate is two. The program works. Judge Lehman went on to discuss the clinic's involvement in the Drug Court Program. The offenders, if qualified, waive their right to a speedy trial. The first two weeks, Phase I, the program requires six days per week attendance with an acupuncture treatment, counseling and urinalysis every day. At Phase II, they attend three times per week for eight weeks which includes counseling, and acupuncture at their option. At Phase III, they attend two times per week for twelve weeks with the same provisions as Phase II. During the last six months of the program, Phase IV, they attend one time per week. During this phase, if they do not have a high school degree they are pushed to accomplish and obtain their degree or equivalency. There may also be in effect very soon some job training through federal programs. Judge Lehman indicated all participants in the program contribute somewhere between $5 and $20 per week depending on what they can afford. Further, they cannot graduate from the program until they have had three consecutive months of clean urine. At graduation, the charges are dismissed and their record is sealed. The charges are not dismissed and the records are not sealed if the participant owes the program any money. Then they have to pay a certain sum each month until paid in full. Only then will the charges be dismissed. In the 28 months of operation, the Las Vegas Drug Court has collected approximately $60,000 to $70,000 in this fashion to be put back into the program. Judge Lehman explained what he does with the person who cannot seem to make it through the program, usually because of positive urine results. In reviewing the offender's records the judge will make him keep coming back to see him until he gets the results he wants. If this does not happen they are locked up in the Clark County Detention Center for four days. After that time, they are given one more chance to attend the clinic and complete the program. He estimates this has occurred with approximately 40 offenders. Most of those 40 have completed the program, but one has been kicked out and one has dropped out on his own. Mr. Sandoval asked how many individuals could be added to the program taking into consideration the $250,000 that is proposed to be contributed from state funds. Judge Lehman indicated approximately 200 individuals would be added to the program. Mr. Sandoval wondered if the $250,000 sum would be spent exclusively to add participants to the program or were there other items he is considering the funds for. Judge Lehman believed it would be spent in its entirety on adding participants to the program. He also has begun a program to obtain funding for other issues such as transportation and administrative staff. Chairman Anderson included that the funds are a supplement to the program rather than a trade-off from other money sources. Mr. Carpenter asked Judge Lehman for clarification on the number of persons in the program. Judge Lehman reiterated he maintains about 400 persons at all times and has graduated 174 participants. Mr. Carpenter wondered about the other 226 participants. Jon Marr, Director, Choices Unlimited Las Vegas, indicated that out of the 900 participants admitted to the program since its inception, approximately 180 of those persons have either opted out or become ineligible for the program based on court appearances. Approximately 170 persons have been terminated from the program or dropped out of the program on their own volition. There are about 440 persons active in the program presently. Mr. Carpenter asked if during the first two weeks of the program do all the participants receive acupuncture? Mr. Marr stated that was so. Senator James commented that in addition to the successful statistics presented today he felt it was further beneficial that the committee was able to view the Drug Court in action. However, A.B. 88 would be required to go before the money committees because it is a budget enhancement so it is going to have to be sold to the two committees making that decision. He suggested that perhaps Judge Lehman could get some of the key members of the money committees and present the same testimony for their benefit. Senator James felt it was important that some of the money committee members actually view the Drug Court in considering this legislation. Judge Lehman stated he would be testifying before those committees as well and, further, he would be sending his five-page report on the Drug Courts to give them somewhat of an introduction prior to his testimony. The Drug Courts in Las Vegas are held every Wednesday from 1:30 p.m. to 7:30 p.m. with an hour off between 4:30 to 5:30 p.m. Senator James inquired about certain fee increases that may be applied to the Drug Court and any problems that may arise in that system, such as bail increases. Judge Lehman acknowledged the possibility of this problem. Chairman Anderson stated the persons working on the subcommittee in the interim have addressed these issues with the money committees. Ms. Ohrenschall wondered about the individual who successfully completes the program, graduates, his record is sealed, is there any provision in the system for such a person if they were to commit a drug-related offense including violence in the future? Because that prior record was sealed, would the system view him as a first-offender? Judge Lehman stated yes. Upon Mr. Goldwater's inquiry, Judge Lehman felt the high rate of success was because of the relationship of the judge, in a position of authority, lets them know they are doing well and how terrific they are for keeping their urine clean. The positive psychology coming from a person in authority seems to work. Chuck Short, Court Administrator echoed those comments. Senator Adler stated there was a Senate Bill before the Senate Judiciary Committee which directed bail money in some fashion which could possibly be amended so the money went to the Drug Court. Senator Porter wondered how the DUI schools were able to net $400,000 some of which was earmarked for the Drug Court Program. Judge Lehman clarified the fees that were obtained through the two separate schools which are required by DUI offenders to attend. The Drug Court Program is receiving some of the money from the DUI schools and is also being funded by the money the Judge collects in the program from the participants. Senator Washington commented on the DARE program for kids and his feelings that prevention is the key to the whole drug situation facing our state. He further believed in the positive reinforcement tactics being used in the Drug Court Program. Judge Lehman added that the Department of Justice statistics state the average addict commits between 50 and 100 crimes per year. As the crime rate is concerned, getting people off drugs reduces crime. The cost of one prisoner in the Clark County Detention Center is approximately $14,000 per year; the cost of one prisoner in the Nevada State Prison is approximately $20,000 per year and neither one of those institutions gets them off drugs. Going through the Drug Court Program costs $1,200 per year and the addict is off drugs. Chairman Anderson stressed that the Drug Court Program was the most integral portion of the entire A.C.R. 71 Study and shows the clearest track records thus far. Jon Marr, Director of Choices Unlimited, Las Vegas, added that from the treatment prospective he felt the program was successful because of a combination of many things. Obviously, the judge is a critical component. Also, most of the participants are not hardened criminals. He also felt that the frequency of drug testing played an equally vital role. If they are using drugs, the court is going to know it and they cannot get around that. The Drug Court Program is not dealing with just the client's addiction. There are usually many other things going on in their life other than their criminal charge. Approximately 73% of program participants, at entry level, are unemployed. One of the goals of the Drug Court Program is trying them in job training and placement programs and monitoring their compliance with those programs. A large percentage of the participants are basically homeless and we may need to get them into shelters or housing of some sort to establish a stable lifestyle situation. All this directly affects the effectiveness of the program. Chuck Short, Court Administrator, stated in 1994 the caseload filed in Eighth Judicial District Court was 49,000 cases--approximately a 50% increase over the last five years. The Drug Court Program is a new, creative way of governing. The program relies mostly on users rather than taxes. It is proactive in trying to prohibit behavior reoccurring from those entering the program. These are the types of programs that are needed today. They cannot come to the Legislature every session asking for more judges--that would be the old way of doing business. Chairman Anderson asked for the specific statistics regarding the program and the case filings. Mr. Short stated he would supply those statistics to the committee. Senator James addressed the issue of prison over-crowding in that it relates to crimes of persons being diverted to the Drug Court Program. Senator James asked Judge Lehman to provide some analysis relating to how the Drug Court Program will eliminate offenders from going to prison. Paul Conner, immediate past director of the Clark County Detention Center, was convinced the Drug Court was having a significant financial impact on the prison out there. Obviously, getting them in the program rather than incarceration would be a substantial impact. Obtaining those figures statewide on an annual basis would be difficult to develop overall. Chairman Anderson stated there was an approximate 10-1 ratio of the costs of the Drug Program versus the costs of incarceration. There has been no less than a 6-1 ratio in terms of dollar cost benefit to the state. Ms. Ohrenschall asked if there was any provision that could be instituted regarding the participant and graduate of the program who commits another drug crime but is represented as a first-time offender because their record was sealed in the Drug Court. Judge Lehman felt this was extremely difficult and could be harmful to the system. He compared the sealing of these offender's criminal records to that of a sealed adoption proceeding and the access thereto. The persons whose records are being sealed through the Drug Court program are generally first-time offenders. Mr. Schneider asked if the Drug Court Program included alcohol also. Judge Lehman emphasized that while the participants are in the program they are not allowed to drink any alcohol whatsoever. Alcohol can be picked up on a urinalysis test, although not as readily as a controlled substance because it does not remain in the bloodstream as long, but participants in the program can relate to the fact that alcohol is also a concern and a requirement of abstinence to conclude the program is necessary. Ms. Stroth asked if the Drug Court would operate independently or in coordinated efforts with the Life Skills Program. Judge Lehman stated he was working with the Parole and Probation Department which is developing the Life Skills Program and he wants to take advantage of all programs that would get these people to go to work. He further stated he has established a committee including members from every entity tied into the program which meets once per month. One of the suggestions through that committee is to require Drug Court participants to fill out a form weekly regarding what employers they have contacted for work. He believes the Drug Court will be working closely with the Life Skills program, especially to elevate the self esteem of these individuals. Chairman Anderson again stated there were three separate elements to the A.C.R. 71 Study--one element is the Drug Court Program and expanding the eligibility of the participants thereby eliminating incarceration; the second element deals with individuals within the prison system; and finally, the Life Skills for those individuals without the skills to deal in our community. ASSEMBLY BILL 87 - Makes appropriation to bureau of alcohol and drug abuse in rehabilitation division of department of employment, training and rehabilitation for support of certain programs of treatment for criminal offenders who abuse alcohol or drugs. Chairman Anderson indicated A.B. 87 dealt with the sum of $10,000 for any single Drug Court, and $90,000 for any aggregate court, as found at line 3 in section 1. Chairman Anderson stated Judge Adams may want to direct his testimony to both A.B. 88 and A.B. 87 regarding the cost package and where the dollars are going to come from as they are not currently in the Governor's budget and therefore the money committees will have to be convinced these are worthwhile programs. At the request of Senator James, the testimony of the Honorable Brent Adams has been transcribed verbatim. Adams: My name is Brent Adams. I am presiding judge for Department No. 6 for the Second Judicial District Court. I will try to be very brief this morning and not repeat what others have told you. The more I have listened to talk about urine tests, the more I realize the virtue of an occasional restroom break and maybe it is a good time to do that. I don't get down here very often. I don't get anyplace very often in my job. I want to share with you briefly the last appearance I attempted to make before a committee at the Legislature. A couple of years ago I came down to testify on something which we euphemistically called Family Court and I was scheduled to testify before the Assembly Judiciary Committee. I wandered all over the building and could never find the committee meeting. Finally I got so frustrated I stopped wandering around and called to a guard and introduced myself and explained I was very confused, I'm lost and I came down here to testify before the Judiciary Committee and I can't find the meeting and I see all these people in the hallways arguing and yelling and bickering and calling each other names and nobody's doing the public's business, I really am confused. The guard said buddy you really are confused, you're in the Nevada Supreme Court building. I want to tell you first of all that I totally support A.B. 88 to continue to fund the good work that Judge Lehman is doing in Clark County. The reason I am here is because I'm probably the toughest or among the most toughest sentencing judges in Washoe County. I tried to figure out the other day and it seems to me that about five and a half years in this job, you and I and our fellow taxpayers are going to burn up something in the area of five to ten million dollars to pay for the people who have been sentenced in my department. I am here because I want to tell you that first of all the criminal justice phase of our caseload is consuming the courts. What Mr. Short told you is exactly true. It is particularly true in the two most urban counties in our state. What we are doing in the criminal cases by and large is accomplishing absolutely nothing. We spend most of our time moving people around and scheduling appearances that do not occur. We schedule the arraignment and at the arraignment we schedule the preliminary examination and the defendant waives the preliminary examination and we set the trial. Way over 90% of the cases, nobody goes to trial. And then at the sentencing we say some words and then the defendant literally disappears. Senator James asked awhile ago an apt question I thought about our prison system. Do drug courts have an impact on our prison system? Well, one way to look at that is to ask, who is in prison? Over 65% of the inmates today in the Nevada State Prison are addicts who are on probation and continue to use and ultimately the judge gave up on them and they were revoked and they're in prison. Easily, 80% of the criminal cases that come before me everyday involve drugs. Over 65% of those in Washoe County involve methamphetamine. The only study recently done involving human beings and methamphetamine was conducted by Ember University. They found that chronic methamphetamine use results in psychosis in 100% of the cases. The medical literature since that time contains no exceptions. Now folks I don't care what you do about drugs, we can legalize them, we can try to interdict supply lines, but the fact is that unless addicts change their behavior, the economics and social consequences in our communities is disastrous. The reason I'm here is because what we are doing does not work and what Judge Lehman is doing, Judge Haas in Portland, Judge Goldstein in Miami, the judge in Bakersfield, the judges in Chicago, what they're doing in their drug courts is working and we gotta give it a try. Here in Washoe County what we did last month is organize a group of 33 community leaders chaired by Sheriff Kirkland and myself. We decided that no matter what, if we didn't get another dollar or another staff person, we were going to implement and will implement a drug court in Washoe County, Nevada by July 3, 1995. We have organized ourselves into five groups to study first of all, drug court models, to look at the success of the Las Vegas program, and also look at Miami, Portland, Chicago, and Bakersfield, and select those elements best suited for our county. Second, we have another group at the same time working on admission criteria to decide the best group of criminal defendants to come into our court. Third, we are surveying all the community resources in Washoe County to find out what treatment programs here have to offer and how much they cost. Fifth, is a group of, what I call the politicians group on public education to go into our community and explain to the people of Washoe County how desperately important this is. When your report of the interim committee was written, Bulletin 95-9, which I have read and which I tell you is the best publication I've seen from the Legislature on the subject of criminal law in my memory. When that was written, we didn't have a drug court in Washoe County and so A.B. 87 proposed this stimulus money to try and encourage drug court programs around our state. My recommendation to you today is very simple. I hope you will amend A.B. 87 and not give the state bureau $90,000 to sprinkle around the State of Nevada but give Washoe County, the Second Judicial District Court, a one-time funding of $100,000 and make it the exact language of A.B. 88, except put in there Second Judicial District Court and $100,000 and that will give us the stimulus money we need to get to work immediately and provide drug treatment. We are also trying to do something that has not occurred in Clark County and that is develop a juvenile drug court simultaneously with the adult drug court. As Assemblyman Washington from our county just pointed out awhile ago, and as the people from the Bureau of Alcohol and Drug Abuse tell me, the most important thing we can do is try to change addictive behavior as early in a person's life as possible. That is my recommendation to you. I would be happy to answer any questions you have or discuss any of the other subjects that members of your committee have raised today. Acting Chairman James thanked Judge Adams for his powerful testimony. Senator McGinness asked if Judge Adams was "writing off" rural Nevada and wondered what the opportunity for this program would be for the rural counties since he only requested the funds be applied to Washoe County Second Judicial District Court. Adams: No. I don't mean that. The two most urban places in Nevada are obviously Clark County and Washoe County. The two greatest crime areas are Clark County and Washoe County. Now there are significant other urban areas in our state of course and other areas where drugs are a significant problem, the chief among those would probably be Carson City, certainly Elko county. There is a burgeoning metropolitan population in Fallon and elsewhere. The reason I am here is because this approach works and we ought to be doing it absolutely everywhere there is a significant drug problem. Don't get me wrong, we should be doing it everywhere and government as well as private foundations ought to support this effort. But if the proposition is that we got in the neighborhood of $100,000 to spend beyond the Clark County program then we ought to use that in the area with the biggest crime, the biggest risk, and the biggest problem. For instance, if we had $10,000 to help the drug court in Washoe County, that doesn't do very much. Maybe that helps us put a few people through a program. $100,000 gets us into business in a very serious way. In fact, I met with Judge Breen and Judge McGee the other day and we were hoping that with $100,000 commitment we could put something in the area of 150 people through our program including perhaps 20 to 25 juveniles within the first year. I also don't mean to be understood to suggest that the state should fund this indefinitely. The fundamental funding source ought to be a local, stable, predictable source in the county and whether we can follow the same approach as Judge Lehman and the Clark County Commissioners did I don't know. My general proposition was that instead of taking small amounts and putting them in many different areas, we have best use of our money if we take a substantial amount for the commencement and operation of a drug court here in Washoe County. I think that is my answer. Senator Washington offered to lend his services to the program Judge Adams referred to regarding public officials educating the public about the program. Adams: Well that is wonderful. We just made our committee a committee of 34 Senator and I added your name on it so thanks a million. I appreciate your help because it is so important. I am meeting with the Gazette-Journal editorial board in the next day or two. This is not a question of north versus south or liberal versus conservative or hard or tough on crime or anything else. We have to desperately find some things in our system that work or literally the criminal caseload is going to consume our entire legal system. It is going to push out any substantial civil caseload and the danger to our families and communities is extremely serious. Honest to God I wouldn't be here today . . . I haven't actually appeared to advocate anything before the Legislature for many years and I'm here because I'm willing to give a try to anything that will do something more than what we've been doing which is making big bonfires out of public cash and burning it up. Ms. Ohrenschall expressed her interest in the juvenile drug court concept and inquired about the implementation of the same and any additional problems the judge could foresee with the juvenile drug court. Adams: I think the thesis is the same and I think they both work very well together; however, I asked Judge Lehman about this and some other authorities and generally the thinking is you have to have two separate institutions both as a matter of law and also because it seems to work best that way. Let me also add, I don't take an easy approach about crime. I personally support a number of measures you have before you now to treat juveniles as adults in many respects. We have to get serious about juvenile crime and particularly juvenile violent crime. I know from speaking with Judge Lehman that the Family Court in the Eighth District is going to be developing a juvenile court and I don't criticize them for the fact that their juvenile court did not develop at the same time as their adult drug court program but I see an awful lot of interaction. I also want to comment very briefly on another question you raised earlier, Ms. Ohrenschall and that is to the sealing of records. One of the reasons our committee is looking at drug court models throughout the country is because they are different. In some of those drug courts the defendants actually enter a plea of guilty and they receive a conviction and that conviction is not erased. In other drug courts it is. I agree with Judge Lehman that providing that record sealing is an additional inducement to people in the program. I am not completely sure that it is necessary for a successful program. For instance, I believe in the Portland program conducted by Judge Haas there is actually a conviction and the records are not sealed. So there are many different ways to develop drug court programs. Ms. Ohrenschall suggested perhaps the sealing of the records occur provisionally based on if an individual recidivates. She agreed that the time has come to make juveniles responsible for their criminal activities. Senator Adler asked if an administrative assessment would be helpful in terms of funding the drug court program in Washoe County. Adams: I haven't really thought about that Senator, and I don't have any view about it but I agree with Judge Lehman. We've got, as public officials, to scour the countryside and find money somewhere for this kind of a program. If we can do it by increased fees or contributions from charitable foundations. I know one way Jack Lehman does it every single day is that in his drug court every time somebody comes to court they pay some amount of money and they take it right out of their pockets and pay it in the courtroom. That has raised, the last figure I heard, was something over $70,000 but it is probably higher than that now. Another quick example is the administrative assessment fee that we already have in criminal cases. About two years ago the Attorney General wrote the judges in the State of Nevada and she pointed out that the amount we were actually collecting was a very small percentage of the criminal case conviction, even the group of people who were not in custody but were out working. So a number of the judges in my district, about four of us now, tell the defendants when they plead guilty and come back in 30 days you are going to have to pay the drug fee and the administrative fee in cash in court. And guess what? 100% of the people that are out of jail pay the money in the courtroom. But if we simply add it to the judgment of conviction and assume that it will be paid later, it isn't going to get paid. If I can just add a quick footnote to what Senator James said. If you want to be convinced about drug court do two things: Go in and watch 30 minutes of Jack Lehman's drug court and see what he is accomplishing and then watch 30 minutes of the criminal calendar in any other court in the State of Nevada. Senator Porter expressed his concern that millions of dollars are spent statewide on programs, establishing them and maintaining them statewide whether the programs are working or not. He feels as legislators and for better government, they need to eliminate the programs that are a waste and provide the money to the programs that are actually working. He believes if the drug courts are working then they should take the money from programs that are not working and put those funds into more drug courts. Adams: Thank you. I'll tell you one place that we could save a lot of money that works in connection with drug court. As Judge Lehman pointed out, if these people can be assessed very shortly after their arrest, within a day or so after their arrest in the jail, and found suitable for the drug court, then we can move them right into that program and stop paying money for public defenders and district attorneys to go to these many scheduling of non-event appearances in our criminal justice system, we can cut down on the jail population, we can take what money they have and put it into treatment instead of burning it up with bail bonds companies, we can reduce the number of court proceedings and thereby hopefully reduce the growth in costs for district court judges and justice court judges and so on. You are absolutely right. We ought to focus in government on things that work and then when we see proceedings that are time-consuming and expensive and don't accomplish anything then we have the duty, I think the judges, as the managers of our judicial system, to reduce those. I'll tell you another big savings and a lot of my colleagues won't agree with me. You want to stop spending money for courthouses, just have a simple proposition that the judge is not the owner of the courtroom and if we could use the facilities we have economically . . . if I could go to a different courtroom everyday instead of the same courtroom, we wouldn't have to build a three-story building we are building across the street right now in Washoe County at the expense of about 18 million bucks for the taxpayers. As long as we have the assumption that each judge is entitled to one courtroom then we are wasting public money that could go into schools and teachers and so on. So that's my whole idea. Ms. Ohrenschall commended all the judges involved in drug courts and their enthusiasm in implementing and maintaining these programs. Senator Porter expressed his appreciation for sharing facilities rather than building new buildings. Additional prepared comments of Honorable Brent Adams are attached hereto as (Exhibit C). Dr. Mel Adkins, Clinical Program Director of the Salvation Army, and representing Nevada Association of State Alcohol and Drug Abuse Program (NASADAP), spoke in support of A.B. 87 and A.B. 88. Dr. Adkins read into the record the Mission Statement for NASADAP which set forth their philosophy regarding treatment and prevention of addiction and improving the quality and quantity of services statewide by affecting public policy of treatment and prevention of drug and alcohol abuse. Dr. Adkins expressed his support of A.B. 87 and A.B. 88, including the expansion of a drug court in Washoe County and to some of the rural counties. Areas of concern he saw involves the eligibility requirements in that perhaps while considering expanding those requirements they consider diagnosis-specific treatment in the referral system. The drug courts are geared for the mild to moderate drug addict without a significant record who could be treated on an outpatient basis. This does not reach everyone involved in drug addiction. He believes there is a need for developing a mechanism for referrals of diagnosis specific treatment. At some point, the Drug Court will be required to use more than one treatment facility. A realistic assessment of the statistics involving drug addiction must be made between the program completion rate with the graduate recidivism rate, using the BADA program and the Choices Unlimited program. NASADAP would also like the committee to be aware there are a number of BADA-accredited and funded programs in the state who are presently receiving mandated referrals from the court system into their treatment programs. For example, the Salvation Army, EOB, Westcare, and NTC, right now 30% of his caseload has been mandated for treatment through the court system. The courts routinely refer cases for treatment. In the Salvation Army program, roughly 71% of those assigned for treatment by the court complete the residential phase of treatment and better than 60% of those remain clean and sober a year later. Dr. Adkins wants to make sure the committees confirm that the drug courts work with the other courts and programs established and make a differential decision at the time of diagnosis. All the dimensions of care within the state need to continue to be supported. Treatment works in all the facilities, not just in the one established with the current Drug Court in Clark County so consideration of the entire spectrum is absolute. Chairman Anderson asked if Dr. Adkins had specific statistical data, not in relation to the Choices program currently in effect in the Drug Court, concerning the success rate in cutting down the recidivism rate and what kind of mechanism do they use. Dr. Adkins replied that regarding the Salvation Army program the completion rate is within 3% of the mandated client and the self-referred client. The method of tracking recidivism for the mandated client is through the probation department and he believed that was less than 25% at the current time. Senator McGinness asked if Dr. Adkins' programs are used if an individual does not complete the program established through Choices? In other words, are Dr. Adkins' programs ever used as a back-up? Dr. Adkins stated that Choices does refer cases to them which are more severe and/or chronic cases. However, the referrals are not coming directly from the Drug Court but rather primarily from Choices. Senator McGinness asked if Choices had an exclusive agreement with the Drug Court. Dr. Adkins believed that all the Drug Court cases are referred exclusively to Choices. Dr. Adkins receives referrals from the other courts. Former Senator Smith was recognized from the audience by Chairman Anderson. Mrs. Kathryn Tisdial Graves, a 75 year old private citizen and native of Las Vegas stated that she was a robbery and assault victim. She asked if anyone in audience or on committee had ever been robbed or assaulted. She relayed her experience of being assaulted six feet from the front door of the home she had lived in for 36 years. She was bent over lifting groceries out of her trunk when a man dragged her backwards toward the gutter tipped her upside down and threw her on the ground and grabbed her purse. She spoke in opposition of A.B. 87 and A.B. 88 and was disgusted with the previous testimony discussing "druggies." As a landlord having approximately 100 tenants, she oversees and hears many conversations on the grounds of her complex. She believes that Judge Lehman's requirement of these individuals to bring money to court is fostering more crime because the ones that are unemployed are selling drugs to get money to go to court--that is what she overheard. Her assailant got about $3,000 from her in cash and personal checks, along with all her personal identification. He was 26 years of age and he had done it before. Mrs. Graves relayed more personal opinion about her lifestyle and the changes that have occurred since the mugging. She feels the proposed legislation is getting "soft" on addicts and the committee should re-think the drug court programs. She does not like living scared and does not go out after dark any longer. She relayed Detective Trimble told her "we catch them and they turn them lose." She expressed her discouragement in the entire system. However, she felt if acupuncture worked, then send them there and then make them work for what they are given. If they need jobs, get them jobs, make them work for it. She wants a stop to the "freebie" programs. Chairman Anderson reassured Mrs. Graves the committee was very concerned with the issues she raised. He further explained the program they were discussing today was only one aspect of future programs in hopes of preventing the type of individual she described from performing that crime again and again. Mr. Manendo observed Mrs. Graves' testimony of her unpleasant mugging experience. Ms. Ohrenschall inquired about the handling of her particular case regarding what happened to the assailant. Mrs. Graves relayed she was mugged on March 17, 1994 but the matter has not come to court yet. Mrs. Graves vehemently disagrees with the sealing of court records in drug cases through the Drug Court. Ms. Ohrenschall wondered how Mrs. Graves felt about an individual who came before the Drug Court a second time. Mrs. Graves was unsure about her feelings in this regard as it would depend on what the individual had done in the interim. Karen C. Winckler, Attorney at Law, practicing in the area of criminal defense, spoke in support of A.B. 88 and in support of the Drug Court in general since she has personally appeared before the Drug Court on many occasions with her clients. The type of clients she usually represents in Drug Court are those individuals who have been charged for the first time for being under the influence of a substance or having possession of a controlled substance. The judge will usually ask "how long have you been taking this drug" and she was shocked that the usual time was 7-12 years yet this was the first time they got caught. They are just now being confronted with their affliction. She feels the Drug Court is very important to all. Many of the individuals appearing before the Drug Court are working professionals in our communities who, if having gone through the regular criminal justice system, would lose their license. The Drug Court has given them a chance to get back on track in their life and removed their addiction. The other individuals she sees the Drug Court helping are the young men in their early twenties who have only been using a controlled substance for two or three years. These individuals have become addicted to a certain extent but the Drug Court will allow them to go forward with their life and accomplish their dreams. A drug conviction on their record would hamper their ability to become a professional working individual and put their goals at risk. She explained that her clients struggle while going through the program and they are not always as receptive as she would like them to be. But, at the end of the program, they are in awe of themselves. They learn to be productive citizens by the end of the program. The important thing about the Drug Court program is that it lasts one year--a long time in a young person's life. They must make an enormous commitment to the program and must believe in the program and in themselves. The changes they make in their lives during that year is immense and it affects not only them, but their families as well. She explained Judge Lehman requires the people who are living with the addict to attend the program in some capacity also since those around you have such an impact on you. If those people continue to use drugs, the chance of an individual returning to drugs is strong. She indicated she has had 20 cases before the Drug Court. She has had only one individual who has not completed the program. It is a tremendous struggle for individuals to complete the program. In addition, they have to understand they can never use drugs again. Senator Lee expressed his concern for acknowledging restitution for the victim. Ms. Winkler indicated she was not familiar with a program established through Drug Court to address restitution for the victim. However, the Drug Court does not accept participants who have committed violent crimes. Her experience has involved people using or in possession of a controlled substance. The assailant of Mrs. Graves, she believes, would not be allowed into the Drug Court program. Chairman Anderson explained that there is currently underway drafting of language to current legislation that would expand the judge's ability to deal with restoration and requiring payment by the attendees of the program to fund the program so it is not a direct cost to the taxpayers at all. Those questions were dealt with in yesterday's testimony. Ms. Ohrenschall again brought up the issue of a successful completion of the Drug Court Program by a substance abuser who later on commits a violent crime and then in the system that individual is considered a first-time offender and perhaps there should be an alert to the system so that individual has an increase in restitution or increased penalty. Ms. Winckler did not feel she was in the position to address the question of sealing of records but she believed in her clients' situation that was truly the incentive for completing the program and assuring them of obtaining, maintaining, or securing employment. Chairman Anderson referred the committee once again to the A.C.R. 71 Study regarding the type of defendant that would qualify for the drug court programs also acknowledging that the Portland, Oregon Drug Court Program does not seal records. Senator Adler stated a reading of the proposed bill shows a conviction can be used for additional penalties for enhancement purposes so it is not a "blanket" sealing of the record. Ms. Ohrenschall wondered if the language should be "must be" rather than "can be." Chairman Anderson stated that the specific language of the bill could be addressed by the committee at a later date during a work session. Joe Rychic, a private citizen in Las Vegas, commented that the housing authority (HUD) received $500,000 for "drug use" yet the drug problem is still there. Perhaps the judge could look into that and work together with HUD to possibly obtain some of those funds. Chairman Anderson reminded everyone the bills agendized today would all be heard again upon return to Carson City. The committee took a break at 11:30 a.m. ASSEMBLY BILL 96 - Provides for deferred prosecution of certain persons accused of driving under influence of intoxicating liquor or controlled substance. Chairman Anderson explained A.B. 96 was in part founded as a recommendation from the A.C.R. 71 Study Committee and based strongly upon the request and recommendation of the defense bar in southern Nevada. He also mentioned the background paper 95-10 available through publications which the committee may want to review dealing with the Nevada laws of driving under the influence (DUI) in this state and provides a historical background of the DUI laws prior to S.B. 83 in the 1981 session and A.B. 305 in the 1991 session. 1. Tom Pitaro, Attorney at Law, practicing law in Las Vegas for the past twenty years, testified in support of A.B. 96. His concepts are also representative of the Nevada Attorneys for Criminal Justice and they strongly urge the passage of A.B. 96 which would allow for the diversion of drunk driving offenses. Mr. Pitaro stated the bills coming before the legislature this session regarding drug and alcohol abuse will make the criminal justice system work. He felt the least effective system in America today was the criminal justice system and the most ineffective way of dealing with these problems is incarceration. History in the past 25 years shows that incarceration has not solved our crime problems in America. The "lock-them-up" philosophy has not proven to work. Alcohol abuse and substance abuse is a tremendous problem and treatment is the only solution. The Nevada Legislature should be commended for the study and for addressing these problems. A.B. 96 takes people who are involved in the criminal justice system by violating the DUI statute and you try to divert them out of the criminal justice system into a treatment modality. The problem is not getting arrested for DUI but rather the alcohol abuse. A first offense DUI now results in the arrest, a little school, and that's the end of it. If you get a second arrest, you get fined, or a couple days in jail which accomplishes nothing. The underlying problem is not addressed--the alcohol abuse. He does not feel you are going to solve drunk driving until you get people to deal with their alcohol abuse. He feels A.B. 96 deals with that concept and makes the justice system more effective for everyone inside and outside of the system. Chairman Anderson identified for the record those persons who will be testifying in opposition to A.B. 96 in the north when these bills are heard again: Mr. Sarnowski, Mr. Paul Corbin, Ms. Judy Jacoboni, Mr. Joseph Guild, Eric S. Cooper, and Paula Treat all deferred their testimony until rehearing in Carson City. Sandy Heverly, Executive Director of Stop DUI, spoke in opposition of A.B. 96 stating this bill decriminalizes one of the most frequently committed violent crimes in the nation today--driving under the influence. Her reading of A.B. 96 indicates DUI offenders could get charged time after time for driving under the influence without ever getting prosecuted for a third-offense DUI. They do not believe many DUI offenders will not admit they are alcohol abusers just so they can get their charge dismissed. Preparation of these offenders by their attorneys would make them well-versed in answering the questions correctly during the evaluation for the treatment program. Stop DUI is not opposed to treatment as long as it is in conjunction with punishment. They believe part of the punishment for DUI is to have the conviction on your record for seven years. Even though these are misdemeanor charges, there are misdemeanor victims also. A DUI conviction is important to the victim should they wish to pursue any civil action against the offender. A.B. 96 does not consider the impact on the victims. What about the misdemeanor DUI where the child enhancement is involved? Would that be dismissed also? She feels watering down the DUI laws gives no consideration to the victims of these crimes. She stated the only difference between a misdemeanor DUI and a felony DUI is luck. Finally, she stated DUI is attempted murder. Senator James agreed there was a substantive difference between the possession and something where there is intoxication and that is something that has to be considered as a violent crime. He felt the diversion programs the legislature is currently considering is for nonviolent crimes--DUI is a violent crime in his opinion. Mr. Manendo stated the track record for incarceration of third time offenders of DUI was 84% in the Nevada State Prison currently. Ms. Heverly's testimony regarding "luck" was applicable he felt and he stated his opposition to A.B. 96. Jim Hawk, Department of Motor Vehicles and Public Safety, Division of Special Services, stated he and several of his colleagues will testify in the North. A letter from Sharon Zadra, a victim of a drunk driver, is attached hereto as (Exhibit D). Although Ms. Zadra was not present to testify, her letter has been included in opposition to A.B. 96. A statement from Judy Jacoboni, President of MADD is attached hereto as (Exhibit E). Although Ms. Jacoboni reserved her testimony for rehearing of A.B. 96 in the north, her comments are included here for the record. There being no further testimony, Chairman Anderson adjourned the meeting at 12:23 p.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 Senate and Assembly Committees on Judiciary February 8, 1995 Page