MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session February 24, 1995 The Committee on Judiciary was called to order at 8:35 a.m., on Friday, February 24, 1995, Chairman Humke 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 GUEST LEGISLATORS PRESENT: None STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Mr. William R. Souligny, UCR Supervisor, Nevada Highway Patrol Ms. Nancy Tiffany, Nevada Parole and Probation Department OTHERS PRESENT: (Continued) Ms. Jeannette Sanders, Nevada Department of Prisons Mr. Gordon Waldaias, POST Program, Nevada Law Enforcement Academy Lieutenant Phil Galeoto, Reno Police Department Mr. Eric Cooper, Nevada Sheriffs and Chiefs Association Chairman Humke announced this was a work session and no testimony to be given. The Chair asked Mr. Dennis Neilander, Senior Research Analyst, to start the work session. Mr. Neilander presented a packet of work session materials attached as (Exhibit C) and made a part hereof. This packet will be utilized when action is taken on the bills under consideration today. Also, enclosed is his memorandum of February 11, 1995, subject: treatment diversion programs for drug and alcohol offenders attached as (Exhibit D) and made a part hereof. In addition an outline of existing law and proposed revisions in treatment diversion programs for drug and alcohol offenders is attached as (Exhibit E) and made a part hereof. Mr. Neilander proceeded with the work session document: first three bills provide mechanisms to evaluate treatment programs and collect statistics concerning crimes related to alcohol and drug use and the effects on the criminal justice system. ASSEMBLY BILL 81 - Provides for study of effectiveness of programs for treatment of alcohol and drug abuse. ASSEMBLYMAN ANDERSON MOVED TO DO PASS A.B. 81. ASSEMBLYMAN PERKINS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. ASSEMBLY BILL 82 - Requires certain information concerning use of alcohol or controlled substances to be included in records of criminal history. Mr. Anderson suggested the formation of a subcommittee to consider A.B. 82. Mr. Carpenter expressed his feeling of the bill was accusation without proof. Ms. Monaghan also had concerns and concurred it be referred to a subcommittee. Ms. Steel advised Ms. Monaghan voiced her concerns. Mr. Goldwater also concurred with Mr. Anderson to refer the bill to subcommittee. Ms. Ohrenschall echoed Mr. Carpenter's concerns. Mr. Anderson advised the recommendation to move this bill to a subcommittee was to, in fact, reflect some of those concerns. The intent is not to lessen the burden of the police officer in proving individuals under the influence of a controlled substance. The purpose is to allow compilation of statistical information. If the bill is too broadly drawn, hopefully a subcommittee can reach a consensus. It is the Chair's intent to form a subcommittee comprised of Mr. Batten, Chairman, and Mr. Perkins to gather information informally with the staff and others. At least one public hearing is to be held on the bill. ASSEMBLY BILL 83 - Requires peace officers to receive training in detection of use and abuse of alcohol and controlled substances. Mr. Perkins stated the bottom line is if it's not broke, don't fix it. Under the other bills coming forward, enough data can be collected to suffice in the drug and alcohol abuse detection. Mr. Batten advised he was totally against the bill for several reasons as stated during our Las Vegas session. Currently, it seems like a mandate on different departments that have their own academy, i.e., Las Vegas Metropolitan. Officers receive training in the detection of alcohol and controlled substances now. He felt there was no need for legislation to further this. Mrs. Steel concurred with Mr. Perkins on this bill and voiced her concerns. In the future A.B. 81 has had time to be in the works. If we find more data is needed, it would be the time to consider it again. Mr. Anderson concurred with Mr. Perkins' comments from the A.C.R. 71 study. It is not trying to detract in any way from the level of training at Level I of officers. The Las Vegas Metropolitan Police academy training level clearly meets and exceed the expectations. It was a stronger statement from Legislature that this should be part of the regular training program. In future expansion to Level II officers, the training level would be consistent. Ms. Monaghan expressed concern with the fiscal note and need for additional training. Mrs. Steel understood the intent of this bill was to support the collection of statistics under A.B. 82. With the testimony she had heard, there is sufficient knowledge with our officers to be able to supply the 98% with accurate findings that these people are suspected to be under the influence. At this time, it is not a necessary bill. In the future, it can be addressed again if needed for category II officer. Mr. Batten agreed with Ms. Monaghan. Category I police officers are trained in this. Category II officers' training should not be mandated and should be left up to prison officials to train their officers. As far as collection of statistics, A.B. 82 addresses it and not this bill. Again, he voiced his opposition to this bill. ASSEMBLYMAN CARPENTER MOVED TO INDEFINITELY POSTPONE A.B. 83. ASSEMBLYMAN BATTEN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. ASSEMBLYMAN PERKINS MOVED THAT A LETTER OF INTENT BE DRAFTED AND SENT TO P.O.S.T. AND OTHER POLICE ACADEMIES TO INCLUDE THE DETECTION OF DRUG AND ALCOHOL ABUSE IN THEIR CURRICULUM. ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. Mr. Neilander stated the following six bills are intended to expand or revise the existing programs that provide diversion of certain criminal offenders from the traditional criminal justice system. Mr. Neilander referenced his memorandum of February 22, 1995, attached as (Exhibit D) and the outline of existing law and proposed revisions attached as (Exhibit E). Mr. Sandoval inquired if the people who are eligible for the diversion program are solely those people who have drug related crimes. His concern is discrimination against an offender who commits a crime and does not have a drug or alcohol problem. It is not fair to be diverted if you have a problem. If you do not have an addiction problem, one gets sentenced. Mr. Neilander advised these crimes are for the most part victimless crimes. ASSEMBLY BILL 84 - Expands circumstances under which certain criminal offenders may elect treatment for abuse of alcohol or drugs before sentencing. (Civil Commitment Statute) Ms. Ohrenschall inquired of any safeguards in A.B. 84 and A.B. 86 to prevent the revolving-door concept. Mr. Neilander referenced A.B. 84 and pointed out there is a provision in existing law, subsection 7. It provides if one is in the program in a span of five years, he is not eligible. Deletion of this language would make that person eligible if they had failed the program once. Whether they get into the program is determined by the judge if they are an abuser. Ms. Ohrenschall asked if it is specifically limited to failing once or more than once. Mr. Neilander replied it would be up to the judge's discretion under the civil commitment provisions. Ms. Ohrenschall requested Mr. Neilander to address A.B. 86. Mr. Neilander explained the current drug court provisions specify if there are prior convictions under the uniform controlled substances act, one is not eligible. The statute is silent with regard to the revolving-door issue. Revolving-door concept is possible under existing law. Ms. Ohrenschall suggested adding language to A.B. 84 and A.B. 86 to prevent revolving door issue. Mr. Batten asked if DUI was applicable to A. B. 84-86. Mr. Neilander responded in the negative. DUI is specifically excluded from both the civil commitment and drug court provisions. Mr. Perkins commented to alleviate Ms. Ohrenschall's revolving-door concern, all of the people that would fall into the net still have to be evaluated and allowed by the judge to participate in the program. Mr. Neilander affirmed that an eligibility hearing would be held first, then an evaluation to determine addiction and if able to be rehabilitated. Mr. Perkins stated it is not uncommon to fall off the wagon. Mr. Neilander recounted Judge Lehman's testimony in Las Vegas where actually falling off the wagon was part of the program. Mr. Goldwater confirmed from Mr. Neilander that victimless crimes are involved. Discretion is given to the judges which Mr. Goldwater had no problem with. Mr. Anderson expressed the very heart of the question and the A.C.R. 71 Interim Study Committee is found in the foregoing legislation. Clearly the successful programs in Miami, Portland, and Las Vegas indicates that during the one-year treatment, relapses will occur. In some cases late into the program, an individual will come clean. It is possible some people will come into the program for the second time. In order to make the program work, this type of legislation will have to be enacted. The two amendments can both be added in to make this legislation more solid. It is a well constructed, well conceived idea. During earlier testimony there were suggested amendments to authorize the judge to make sure of other alternatives for people to pay for the program by doing outside work, so that there is a buy-in. No one will get a free ride. This is a very solid piece of legislation and the very heart of whether the committee endorses the drug program or not. Ms. Ohrenschall agreed that the legislation is worthy and has no objection to giving the judge a certain amount of discretion. She felt that certain individuals do exist who will be the rotten apples in the program. It will be good to limit the number of times a person can go through the program. One must keep in mind the fact what is a victimless crime at the moment in terms of abuse of drugs if the person, in fact, is the rotten apple who abuses the system, may continue to expand into definitely a crime against a person. Judge's discretion is still possible in the bill with a limit to the number of times a person can participate in the program. Mr. Carpenter was appreciative of Mr. Neilander in putting the packet of information together. He asked if we were discussing all the bills in one context or are on a specific bill. The Chair advised we were on the concept of anywhere from three to six bills, A.B. 84, 85, 86, 87, 88, 96. Mr. Neilander advised it was his intention to give overview, close general discussion, and proceed with the work session document. Mr. Neilander followed up to questions concerning victimless crimes. He pointed out his memorandum of February 22, 1995, page 3, indicating a list of seven exclusions from the program. There could be a misdemeanor assault. The offender could qualify for the diversion program under this legislation. Mr. Goldwater suppositioned a barroom fight may be a perfect opportunity for treatment for an offender with a drug or alcohol problem. Ms. Ohrenschall observed that if we allow offenders too many times to go through the program, the only drug court in Las Vegas may be overburdened. This is one more reason to limit the number of times an individual can go through the program. Mr. Sandoval followed up on Mr. Goldwater's scenario. If there was a drug abuser who gets into a barroom fight and fights someone sober, the sober one goes go jail; the drug abuser gets a deferred sentence. Mr. Goldwater affirmed that both are charged with misdemeanor assault. Does the misdemeanor assault be deferred for the one who is drunk and does not go away for the sober one. The Chair confirmed with Mr. Neilander it is a possibility. In reference to A.B. 84, the major amendments suggested at hearings are for defendants to pay treatment cost. If unable to pay authorize the person to have a lien or community service as part of re-payment. Conceptual amendment was drafted to capture the concept. Mr. Goldwater expressed favor of a judge having the ability to issue a lien on one's assets in order to secure payment for treatment. As far as community service, he was in favor of community service as long as the judge does not assign one to the position of a health care giver, restaurant manager, or attorney. His concern is the displacement of workers. As the role of community service is extended for criminals, it may displace workers. One of the keys to drug court is getting people up and getting them out there, getting a job, and securing employment so they can sustain themselves. Very few seen in the drug court program could afford to take leave from their job in order to do community service. It is his fear that making them do community service might interfere with their jobs. He did not want to undermine the intent of the drug court. The Chair advised it was his concept the drug court was going to seize indigent people where a judgment lien will mean nothing even under the wage withholding provisions. As a practical matter it may never work. If there is nothing to lien, they have no property, no wages to attach, then the pound of flesh that can be gotten by the court would be community service. Mrs. Steel echoed Ms. Ohrenschall's concern about the revolving door and placing a limit on program participation. By deleting number four under section 1, l. 15, the parameter has been deleted. It is possible an offender could be convicted twenty times and still be eligible for the treatment program. Mr. Neilander advised it would depend on the crime committed. The felonies that are eligible are the paper-type felonies. Burglary would be an exclusion. Mrs. Steel expressed concern about no limit in the bill for repeat offenders. Ms. Monaghan inquired if the treatment program had to be an accredited evaluation center. Mr. Neilander replied that under the enabling statute explained earlier, the program does have to be accredited. Ms. Monaghan wanted to ensure against fly-by- night programs. Ms. Buckley expressed support for A.B. 84 with the amendment in regard to community service. She shares the concerns of Ms. Ohrenschall and Mrs. Steel about the revolving door and the multiple prior felony issue. One of the benefits of expansion is offenders committing crimes to support their habits will receive treatment. A safeguard is the judge's discretion as to the type of crime and if the offender can benefit from the program. Ultimate benefit would be to free up a prison bed which can be better used for a violent offender. It would give the judge the discretion to order appropriate community service in each individual case to ensure the defendants do repay for the treatment program. Mr. Batten supported Ms. Ohrenschall's concerns regarding revolving door concept, guidelines, and parameters of multiple felons being able to participate in this program. The citizens made a statement during the last election. One of the concerns was crime, but also the revolving door. He hoped their warning would be heeded. Mr. Perkins served on the A.C.R. 71 study committee and stated the genesis of the bill was there were multiple offenders who were in need of treatment programs previously unavailable. The need to offend would be taken away from the multiple offenders if they were successfully treated. Until the root problem of addiction is treated, the offender will continue to offend or occupy a prison bed. The public wants legislators to be smart and tough on crime. They did not want the prisons full of nonviolent offenders and drug users when those beds would no longer be available for the violent offenders. Mr. Perkins cannot support doing away with the convictions of domestic violence offenders. The Chair also served on the A.C.R. 71 Study Committee. We have prisons and jails in this state which contain lots of offenders who are addicts and alcoholics. If no treatment is offered during incarceration, the offender still comes out an addict or alcoholic. Upon release offenders will resume criminal behavior. The committee was asked not to lose sight of this concept. Mr. Carpenter expressed his concern with A.B. 84. For multiple convictions of a felony, the offender should have their treatment inside prison. The public is concerned that the offenders are let off. He stated he was for treatment; but it is not successful in all cases. Mrs. Steel advised her earlier comments were directed to A.B. 84, civil commitment. She concurred with Ms. Buckley's statement that the judge's discretion would stop the revolving door. Again, Mrs. Steel expressed concern about no limit in the bill for repeat offenders. Ms. Ohrenschall spoke on the revolving door aspect of all these bills one more time; she heard quite a lot of testimony that it is part of the treatment. People fall off the wagon while on the program. To correct any impercipience, she referred to people who have finished the program. It is one thing while they are in treatment being monitored; but, it is afterwards they relapse. At that point we should look at how many chances at the program they will be given. The committee should consider some sort of a cap. Mr. Goldwater addressed Ms. Ohrenschall's concern. In the Las Vegas drug court program of 176 cases, two were recidivists. If this excellent piece of legislation is killed because of a very small percentage of people that may be eligible to go through that revolving door that is one of the main problems with government today because the big picture is not focused on. The intent of the bill is to expand the eligibility for drug court or civil commitment. His concern was not to change the intent of this bill. Ms. Ohrenschall advised no one talked about killing the bill but merely amending it to put a cap. Secondly, the committee is reminded that statistics show a sociopathic personality where abuse of drugs and alcohol is merely a symptom of an underlying rotten apple. All the treatment and therapy in the world will not help this type of personality. It would behoove us to not let the person abuse the system forever with debts and overburdening the system. In order for the program not to be taken advantage of, a cap is needed. Mr. Batten echoed again tremendous support for Ms. Ohrenschall. Everyone on the panel talked about let us get to the root of the problem, and the cause of the evil. Mr. Perkins expressed confidence in the judge to detect the sociopathic personality and keep them out of the program. There is also another review process. This body meets every two years. This is a pilot program and can be reconsidered in two years. Re-offenders of nonviolent crimes will escalate into violent crimes. Then they will be excluded from this program. The best thing a law enforcement officer can do for their community is to prevent crime as this program does. It will free up the prison beds needed for more violent offenders. Ms. Buckley stressed the importance the intent of A.B. 84 remain to expand the number of criminal offenders that may be eligible for treatment to prevent reoffenses and to provide treatment. She suggested a compromise by amendment indicating where there are two or more felony convictions wherein substantial bodily harm resulted, or along that line. To ensure if someone committed multiple felonies, for example, shoplifting to support their habit, or break-in of cars, the offender could still get into treatment. Hopefully, the offender will receive a cure and not take up a prison bed; but, to not allow violent offenders to get through the program. She urged the original intent be kept so offenders can be cured through this program. Mr. Anderson reminded why the A.C.R. 71 Study Committee was formed. Due to the frustration current practice was not working. A few cases showed promise and hope. These were the drug courts in Miami, Portland, Oakland, and Judge Lehman's drug court in Las Vegas. Nevada is at a critical junction. He re-emphasized it is the heart of the whole discussion. What we are doing now is not working. Indeed, there will always be those who fail in any system. This is the reason 46% of prison beds are re-filled. The greatest single predictor of whether one goes to prison is if one has already been there. Obviously, if you are looking for rotten apples, the barrel is filled every day. What will help us increase the success rate from 10% to 60% minimum, 90% the best, is the drug courts in the U.S. Indeed, there will be failures, as there are ones who fail his American Government class from time to time. Mr. Carpenter thought the drug court should be expanded for first offenders. If one thinks you are going to cure the multiple offenders without punishment, it will not work. There are so many treatment programs available, resources are being depleted. We talk about being smart on crime. We are not being smart when these people are let into a drug court program. Let them go into a program specifically tailored to their type. The judge has that authority now. Ms. Ohrenschall made final comments on revolving door. In reference to Mr. Perkins statements, if there is no cap eventually the judge will weed out the sociopath. No doubt eventually the judge will. The drug court we saw was overburdened. They processed maybe 400 people in three observed hours. Can the court be further overburdened with looking at the revolving door issue and the number of repeat offenders? Is that wise? She stated she is not opposed to expand the use of therapy. She did not understand how a cap would prevent the expansion of the use of therapy. Finally, she expressed her concern about repeat offenders escalating their crimes. A ten minute break was declared by the Chair at 10:05 a.m. The committee was called to order at 10:20 a.m. Ms. Buckley proposed amendments at line 15 to exclude only those individuals who had three or more felonies. The last section was amended to exclude anyone who had received treatment programs more than twice in the last five years; as well as including the amendment of excluding misdemeanor domestic violence. Mr. Sandoval reminded the committee of his concern of the unequal treatment between an alcohol or drug abuser and someone who is not. He also made the statement that the universe is perhaps even bigger. It is quite common in the criminal system to plea bargain. If there is someone charged greater than a misdemeanor which is pled down to a misdemeanor, the person could then take advantage of the program and have no mark on their record. He is very troubled by this unequal treatment. It will encourage those persons without a problem to try and convince the evaluator they have a problem to get into treatment in order to receive no mark on their record. Ms. Ohrenschall echoed Mr. Sandoval's remarks and re-echoed her concern of expanding any felonies to get into the treatment program. ASSEMBLYMAN SCHNEIDER MOVED TO AMEND AND DO PASS A.B. 84. The Chair confirmed from Mr. Schneider his intent to include Mr. Neilander and Ms. Buckley, as well as proposed language of Mr. Sandoval's suggested amendments to A. B. 84. Ms. Buckley re-stated proposed amendment: Section 1, paragraph 4, would be deleted. In its place would be an exclusion for any individual who had a record of three or more felony convictions. Paragraph 7 would no longer be deleted. It would remain; however, it would exclude any individual who is admitted two times to any of the programs listed within the past five years. Third, misdemeanor domestic violence convictions, those individuals convicted of same would be excluded from eligibility for the program. Fourth, Mr. Neilander's proposed amendment from the work session document. Fifth, Mr. Sandoval's proposed amendment. Mr. Sandoval deferred to our counsel. The Chair asked Mr. Neilander if he could prepare such an amendment. Mr. Neilander did not think so because that is the status of the existing law. These changes do not affect the fact that offenders are treated differently under the current system. This has been the existing law since the statute has been in effect. Mr. Anderson wanted to make sure he understood Mr. Neilander's response. If the current statute does not allow judges to set up a separate penalty or to dismiss in this type of case where someone has been harmed, would the fine be dismissed? Mr. Neilander stated he would have to check it to be sure, but he thought it was. Ms. Ohrenschall thought Mr. Sandoval was concerned with a person having a record and fine as opposed to the person accepted into the diversion program. Getting back to Section 1.4, she expressed serious reservations about allowing a person convicted three times for trafficking in controlled substance to be allowed to take advantage of the program. Mr. Goldwater stated he too was concerned with Mr. Sandoval's points. On the plea bargain, he thought the district attorney would not let someone plead to a misdemeanor offense under the drug court provision. If that is the case, possibly a letter of intent or resolution could be issued. Fairness is an excellent point. Conviction of a misdemeanor assault, one from a barroom fight gets into the year long drug program and his opponent does not. It is good to get punishment off one's record. It does not alleviate the fairness. It imposes a serious burden. With respect to Ms. Ohrenschall's scenario of trafficking, Mr. Neilander stated under section 1.2 of the bill trafficking is specifically excluded. It would not fall under the two or more felonies amendment. Basically, we are talking about felonies not involving crimes against a person. Ms. Ohrenschall found it unacceptable too. Mrs. Steel reminded civil commitment not just drug court is being addressed. She suggested an amendment for the bar brawl scenario with an exclusion where they would not be able to participate in the programs if other people are being convicted for the same offense. Mr. Neilander advised he could request the drafters to propose language where a mutual crime involving mutual charges that are related would not be able to participate in the programs. The Chair stated the amendments will be complicated. The committee should have the amendments in writing before voting for the amendment and do pass. Alternatively, do an amend and do pass and refer to bring the bill back to committee. Research staff advised he can be directed to get the amendments without any formal action for the committee to review them. The Chair advised that would be the way to handle the Sandoval bar fight scenario. We are getting into equal protection problems. Ms. Ohrenschall had a final comment on the one year drug program. In the Sandoval scenario, one has a record and the other does not. Criminal rap sheets last longer than a year. Ms. Buckley recognized Mr. Sandoval's valid concern. She stated that she believed there was no equal protection problem because the conduct which was criminal was caused by the alcoholism or drug addiction and would support a finding of a rational basis. On the fairness problem, on one hand, no it is not fair. Same conduct different results. On the other hand, if the conduct was caused by alcoholism or the symptoms of drug abuse, then there would be a basis for treatment. They would not be taking up a prison bed and will not do it again. The court would look at the underlying purpose trying to achieve and uphold the same. Mr. Carpenter remained committed and will not vote for the bill. He stated the bill will allow someone into the program with prior violations. We need a legal opinion on subsection 1 and 2. Mr. Goldwater asked if it would help to delete misdemeanor assault and make sure that it is all victimless crimes. Chairman Humke declared the bill be sent to a subcommittee. Ms. Ohrenschall reminded in common law a voluntary act, such as voluntarily becoming drunk or under the influence of a controlled substance in matters involving serious crimes does not exculpate one from criminal responsibility. There being no further discussion, in consultation with the Co-Chair, A.B. 84 will be placed into subcommittee. Subcommittee will be Ms. Steel and Ms. Buckley. ASSEMBLYMAN SCHNEIDER WITHDREW HIS MOTION TO AMEND AND DO PASS A.B. 84. ASSEMBLY BILL 85 - Revises provisions governing placement of criminal offenders in programs of treatment for abuse of alcohol and drugs before sentencing. (Civil Commitment Statute) Mr. Anderson advised A.B. 85 is similar to A.B. 84 and recommended it be placed in same subcommittee in order that the intent may be mirrored. There being no further discussion, A.B. 85 will be placed into subcommittee. Subcommittee will be Ms. Steel and Ms. Buckley. 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. (Drug Court Provisions) Ms. Ohrenschall respectfully requested the committee consider the revolving door issue. Mr. Batten felt A.B. 84, A.B. 85, and A.B. 86 should be packaged together. Mr. Perkins stated that the concerns of the previous bills are not the same with this bill. The relapsed offender is given a chance to complete the treatment program. Ms. Ohrenschall respectfully suggested that the committee look at how many times an offender can be referred to the program. The committee has the responsibility to put a cap on the number of new tries allowed. This would eliminate the abuse of the program by making a revolving door. Ms. Buckley stated she was in agreement with either passing it or referring it to subcommittee. Currently, there is a cap in regard to drug court on the revolving door. There are controls in place and expressed confidence in the judge's discretion. Mrs. Steel did not see any language in A.B. 86 that provides one can repeat the drug court once tried. Language needed to be added where it says possession for the purpose of sale, "in the discretion of the judge". The judge should be allowed to deny a person with possession for purpose of sale the permission to go into drug court. Mr. Neilander advised the drug court statute is different from the civil commitment. In regard to section 1 of the bill, if the person tenders a plea, the court may suspend further proceedings. This gives the judge discretion in terms of whether or not to allow, even if qualified, offenders into the program. Ms. Ohrenschall requested from Mr. Neilander earlier testimony A.B. 86 does not have any protection against a possible revolving door of people who have been through the program repeating the program later. Mr. Neilander replied it does not refer to the program. It refers to prior convictions. If someone under the existing law had a prior conviction, they would not be eligible. Ms. Ohrenschall stated that if someone had gone through the program, he would be eligible under this bill to repeat the program. Mr. Neilander replied in the affirmative. Ms. Ohrenschall stressed a cap is needed on the number of times one can go through the program. Mr. Neilander advised he is providing information and not arguing one way or the other. It is discretionary with the judge. ASSEMBLYMAN GOLDWATER MOVED TO DO PASS A.B. 86. ASSEMBLYMAN ANDERSON SECONDED THE MOTION. Mr. Batten voiced his opposition to A.B. 86. The reason why there is mandatory minimum sentencing is because the judges are not doing their job. If some of the committee members are uncomfortable with the bill, it should go to subcommittee. Mr. Carpenter advised he will vote against it until he finds out what the statutes refer to. Mr. Goldwater stated that judges are elected just like legislators. It is not the job of the committee to say the judges are not doing their job. It is the people who elect the judge who say that judges are doing their job. It is legislature's role to set policy and make laws. It is the judicial branch's role to administer the policy. Putting this bill into subcommittee will only delay it and he encouraged members to vote for motion to pass. Ms. Ohrenschall maintained it was simplistic to say there is a built in cap in the court today. No judge is immortal. Our job is to set standards and she felt we should set an outer limit. Unless there is a cap on this bill, she would have to vote against it. If it were amended to include an outer limit cap, she may vote for it later. Mrs. Steel respectfully requested that her colleagues who want a cap suggest what that cap might be. The Chair advised the subject of judicial discretion was inherent in a drug court statute. Ms. Stroth addressed Mr. Goldwater's statement about the public. After working with victims organizations, she believed the public does not know what the judges are doing. There is no mechanism in force now to evaluate judges. The newspaper evaluation by defense attorneys rate judges easy on crime very highly. At this point the public has no way of knowing evaluation of judges. On this particular bill she would be more comfortable not making a decision today. In the interest of having legislative uniformity, Ms. Ohrenschall recommended this bill be assigned to subcommittee to be considered as a package. There being no further discussion on the motion of A.B. 86, the Chair called for a vote. THE MOTION WAS PASSED. ASSEMBLYMEN STROTH, OHRENSCHALL, MANENDO, BATTEN, AND CARPENTER VOTED NO. Mr. Neilander commented that both A.B. 87 and A.B. 88 are appropriation bills. 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. ASSEMBLYMAN ANDERSON MOVED TO DO PASS A.B. 87. ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. . In discussion of the bill, the Chair pointed out any district court could get a maximum of $10,000 of this money. It would be surprising if a rural county would apply for funds under this bill for the sake of $10,000. Mr. Perkins recalled there was availability for drug court funds for some, but not others. The purpose of this bill was to allow that opportunity in the rural areas. There was testimony there was a need for the funds in the rural areas. The monetary factors will be reviewed by the Ways and Means Committee. Mr. Batten doubted if $10,000 per court would be sufficient to establish an effective or fiscally sound program. Mr. Carpenter recommended rural areas be conferred with before taking action on this bill. In hearing the call for floor, Mr. Anderson stated he would be happy to delay action on these bills. ASSEMBLYMAN ANDERSON WITHDREW HIS MOTION TO DO PASS A.B. 87. ASSEMBLYMAN GOLDWATER WITHDREW HIS SECOND OF THE MOTION TO DO PASS A.B. 87. ASSEMBLY BILL 88 - Makes appropriation to Eighth Judicial District for expansion of its program of treatment for abuse of alcohol or drugs. ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS AS AMENDED A.B. 88. ASSEMBLYMAN SANDOVAL SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. There being no further business to come before the committee, Chairman Humke adjourned the meeting at 11:06 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman David E. Humke, Chairman Assemblyman Bernie Anderson, Chairman Assembly Committee on Judiciary February 24, 1995 Page