MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session March 22, 1995 The Committee on Judiciary was called to order at 8:10 a.m., on Wednesday, March 22, 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 Ms. Dianne Steel Ms. Jeannine Stroth STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: Honorable Robey Willis, Justice of the Peace, Carson City Phil Galeoto, Reno Police Department Susan McCurdy, Executive Secretary, Parole Board Commission Lupe Gunderson, Director, Parole Board Commission Laurel Stadler, Representative, Mothers Against Drunk Driving James Jackson, Nevada State Public Defender Ben Graham, Clark County District Attorneys Association Patricia Justice, Clark County Public Defenders Office Chairman Humke opened the meeting stating a quorum was present. ASSEMBLY BILL 256 - Increases penalty for abuse, neglect or endangerment of child where substantial bodily or mental harm results. Assemblyman Mark Manendo, District 18, the primary sponsor of A.B. 256, outlined the bill stating the only change in the bill is to increase the minimum sentence from one to two years for the offense of substantial bodily harm or mental harm to a child. In addition, he stated the issue of child abuse is an imperative issue for the legislature to address. He added S.B. 113 expands the aggravated circumstances under which death penalty can be imposed for murder. A.B. 256 addresses the other side of the issue where there is not a death involved but there is substantial physical or mental abuse. Phil Galeoto, Reno Police Department testified in support of A.B. 256 as it relates to crimes against children wherein they have seen a substantial rise in these crimes. Increasing the penalties would be a positive step in addressing this very serious issue especially since oftentimes the first or second offense in these situations ends up with probation. No further discussion or testimony was presented A.B. 256. ASSEMBLYMAN OHRENSCHALL MOVED TO DO PASS A.B. 256. ASSEMBLYMAN STROTH SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ASSEMBLY BILL 277 - Authorizes residential confinement as punishment for certain convictions of driving while license is suspended, revoked or restricted. Honorable Robey Willis, Justice of the Peace and Municipal Judge in Carson City, explained A.B. 277 is a bill from the Nevada Judge's Association, specifically crafted by Judge Dillworth of Washoe County who was unable to attend the hearing today. A.B. 277 was designed to address overcrowding in the jails especially in the urban areas by affording particular offenders with residential confinement. He further explained the offender would be required to pay for the cost of residential confinement. The term of residential confinement would be for 60 days rather than 30 days. Judge Willis stated the judge should have the discretion to allow a participant in the residential confinement program and provided examples of the types of individuals the judges would typically consider for house arrest. Mr. Anderson and Judge Willis discussed the minimum requirement provision of sixty days proposed in A.B. 277 rather than the 30 day requirement for jail time if driving under a revoked or suspended license. Mr. Anderson expressed his concern with the short-term jail sentences not being eligible for the residential confinement program and perhaps that would then increase the jail overcrowding situation. Mr. Anderson did not feel A.B. 277 correctly addresses short-term jail sentences but concluded he would find the answer on his own. Judge Willis clarified the bill addresses those individuals who are driving on a revoked or suspended license and does not address the actual DUI charge. Under A.B. 277 the judges would be allowed to give the offender residential confinement for 60 days rather than mandatory 30 days in jail. Mr. Carpenter asked if a second DUI offense is charged is the mandatory jail time 30 days in jail also? Judge Willis stated the second offense DUI is mandatory minimum ten days in jail. Mr. Carpenter then asked if they can use residential confinement for the second offense DUI mandatory jail time of ten days. Judge Willis stated yes on a second DUI offense residential confinement can be used--not on a first offense but on a second DUI offense. Mr. Sandoval asked if A.B. 277 would allow a judge to sentence someone to more than sixty days to residential confinement. Judge Willis stated the way the bill is currently drafted no, but insertion of language stating "not less than sixty days, not more than six months" would be no problem. Chairman Humke concurred the amendment could be placed at line 14, page one. James Jackson, State Public Defender's Office, stated his office supported the passage of A.B. 277. He had one concern which was brought out by Mr. Sandoval regarding the clarification of sentencing no more than six months. He stated A.B. 277 is a valuable tool regarding prison overcrowding and bringing cases to a quicker resolution. He explained residential confinement would be more palatable to his clients in that not having to spend 30 days in jail would allow them to continue to work to support their families. Laurel Stadler, Legislative Liaison, Mothers Against Drunk Driving, spoke in opposition to A.B. 277. Her testimony was directed at a possible amendment to lines 21-22 which language was included during the last session. Their organization believes allowing the person who has not taken the responsibility of going down to DMV to reinstate their license should not be treated any less than others driving with a revoked license. MADD feels the responsibility of abiding by the laws surrounding the original charge of DUI is important in the treatment of these offenders. In addition, Ms. Stadler brought to the attention of the committee the term "intermittent" should be made "consecutive" on lines 23-24 relating to sixty day residential confinement. If they are allowed the privilege of residential confinement rather than jail time, it should be consecutive. Mr. Anderson asked about the individual who chooses, for whatever reason, not to reinstate his license and how the passage of A.B. 277 may affect that type of individual. Ms. Stadler clarified another driving infraction would have been charged in order for the revocation or suspended license to have been charged. Mr. Neilander offered proposed language that could be added to line 23 following the last word in the line ". . . except a sentence of residential confinement under subsection b of subsection 2." This language would exclude the residential confinement from the intermittent provision. Ms. Stadler agreed the inclusion of this language would be appropriate. Ben Graham and Patricia Justice, both from Clark County, spoke in support of A.B. 277. Ms. Justice addressed the subject of residential confinement as it may affect the detention facilities throughout the state. Reciting her conversation with Joe Levars, Clark County Detention Center, the amendment or clarification they request is as follows: "provided the person meets the qualifications of the respective agencies residential confinement program." This language should be included on line 14(b) after the comma. The detention facilities' concern is they want to make certain the individual considered for residential confinement has a working telephone, they actually have a home they live in, and there is some way to supervise these people. Chairman Humke asked if they required the offender pay for the cost of residential confinement. Ms. Justice stated yes it is currently $10 per day. Mr. Anderson expressed his concern regarding the debates brought when the issue of ankle bracelets was first seen back in 1991. The factor of having a telephone was addressed in length at that time and that criteria alone excludes a large percentage of the population from possibly being able to be placed in house arrest. He queried if Clark County had any information on how this affects the program they currently have in existence. Mr. Anderson recalled the elimination of this from the statute initially was very strong and the decision to determine the eligibility of the participants should remain with the judge rather than the detention facility. Mr. Graham stated Mr. Anderson's argument had much validity with regard to the judge's discretion. Further, Mr. Graham would like to do a survey amongst the districts that have residential confinement in place to see what alternatives, if any, they have to the telephone requirement. He also commented there was a reluctance with the prosecution and the courts to tinker with any other portions of A.B. 277. He did not believe Ms. Stadler's concerns regarding lines 21-22 have merit and the purpose of the committee should be to just expand the alternative sentencing program for the judges contained on lines 12-14. Mr. Neilander read for the committee language contained in NRS 211.250 which sets for criteria needed to be established for eligibility into residential confinement under current law and placing the discretion with the judge. NRS 211.250 states, in relevant part: Unless the sentencing court otherwise orders in a particular case the sheriff or chief of police may supervise a convicted prisoner electronically instead of confining them in the county or city jail if: 1) the prisoner has a residential living situation which is capable of meeting the standards set in the general rules and individual conditions for electronic supervision and the sheriff or chief of police concludes the electronic supervision poses no unreasonable risk to public safety . . . Mr. Neilander also stated it is not a requirement, under this statute, that the offender be employed. Mr. Humke asked for clarification if the statute would make residential confinement automatic unless the court ruled otherwise. Mr. Neilander stated it would give the judge the option of deciding if it was proper to place a person in residential confinement thereby taking away the authority of the sheriff to order that person to be in residential confinement. Chairman Humke did not believe the intent of A.B. 277 was to make residential confinement automatic but should remain in the discretion of the court. Discussion was held regarding portions of the language in NRS 205.211 being utilized for inclusion in A.B. 277 yet not referring to the entire statute as it would be too restrictive. Mr. Perkins enlightened the committee with his concern regarding the supervision of residential confinement individuals and who is responsible for these offenders, their health and safety while they are being monitored. He relayed a story he heard from Lt. Galeoto from the Reno Police Department wherein his division was called to check on a residential confinement individual who had not been checking in and upon arrival they found the individual deceased--five days deceased. Normally the placement in residential confinement is under the auspices of parole and probation. In these situations, there really is no agency to provide the supervision and there may be some liability issues in the future as we continue to move toward alternative sentencing. Chairman Humke asked if an individual could drive a vehicle while under residential confinement and if so, he did not think they should be afforded that privilege. Ms. Steel asked if an individual could work while under residential confinement. Mr. Graham stated the conditions of residential confinement vary in all instances. Further, the subject of residential confinement (house arrest) is an area everyone needs to learn more about. Mr. Anderson concurred stating the first discussions of residential confinement began in the judiciary committee in 1991and the technology does vary. Chairman Humke stated if the individual had a revoked license, then drove on that revoked license, got placed on residential confinement then is allowed to drive while in that program, that would be wrong. Mr. Graham concluded he would get together with Washoe County officials to obtain some information for the committee on the mechanics of how residential confinement and electronic monitoring devices actually work. Chairman Humke asked Laurel Stadler to comment again since further testimony and proposed amendments to A.B. 277 have been brought forth. Chairman Humke asked if she was still opposed to the bill in light of those amendments. Ms. Stadler stated MADD generally is against any lessening of the sanctions against DUI offenders. She acknowledged the trend to empty out the jails is an important measure but they are not supportive of residential confinement sentencing but do understand the need. In that light, they would like to see the residential confinement programs, if established, be as strict as possible. For example, in the 305 program, the offenders have ankle bracelets and are kept to a schedule of their events of the day. In that program, a parole and probation officer can drive by where the offender is supposed to be according to the schedule and electronically know, in their car, if that individual is inside the building. Chairman Humke speculated the will of the committee to place the eligibility of the individual in residential confinement with the discretion of the court; however, the will of the committee was not to make the changes Ms. Stadler asked for at lines 21-22 regarding the revocation period. Chairman Humke stated his personal opinion was to not allow a person in residential confinement to drive since that is the inherent nature of their offense and they have already violated the law in that regard. He elaborated further his personal feelings about the bill. Mr. Anderson and Ms. Stadler discussed in furtherance the portion of lines 21-22 as it relates to the current bill and the previous legislative session. Ms. Steel stated her concern this bill holds a stricter penalty than a second DUI offense. Judge Willis stated a second DUI offense requires a mandatory 10 day sentencing requirement. Chairman Humke announced information on residential confinement would be very helpful for the entire committee. Ms. Steel suggested the bill be held until more information on electronic monitoring devices was obtained. Judge Willis also stated they did not want to revisit lines 21-22, citing a Supreme Court decision from Oregon. Mr. Anderson suggested the committee direct staff to draft the proposed amendments discussed today. Ms. Monaghan echoed Mr. Perkins earlier comments regarding the responsibility of the care of the individuals in a confinement program. Mr. Perkins declared he would feel comfortable with making the amendments to the bill then bringing it back to committee and sometime in between holding the "Residential Confinement 101" class to educate the committee on electronic monitoring devices and related information. Ms. Buckley expressed her desire to learn more about the residential confinement program but too did not want to hold up the bill so would be in favor of taking action on it today. Chairman Humke asked Mr. Graham and Ms. Justice to provide the committee some industry specifications in writing narrating the companies currently managing residential confinement programs. ASSEMBLYMAN ANDERSON MOVED TO AMEND A.B. 277 AT LINE 14 TO INCLUDE NO MORE THAN SIX MONTHS; THE INCLUSION OF SPECIFIED LANGUAGE FROM NRS. 211.250; CLARIFICATIONS TO SECTION 5; AND THE INTERMITTENT TO CONSECUTIVE. ASSEMBLYMAN PERKINS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ASSEMBLY BILL 288 - Increases number of members of board of parole commissioners and changes number of members required to decide issues involving certain offenders. Lupe Gunderson, Director, Board of Parole Commissioners, testified in support of A.B. 288 stating it would allow the increase of the amount of parole commissioners from six to seven. She stated the need for an additional parole commissioner was due to the opening of the Lovelock facility and they would need an additional commissioner to handle the extra caseload. Susan McCurdy, Executive Secretary, Board of Parole Commissioners, stated they request an amendment to section 4 because of an on-going conflict they have received from the Attorney General stating their decisions must be a "majority" decision not "concurred in 2 or more" as currently stated in A.B. 288. Additionally, Ms. McCurdy stated the provisions in (a) through (d) of subsection 5 do not make any difference in the decision-making because the board still must have a majority to grant or deny parole which has nothing to do with the sentence or conviction. Chairman Humke asked if she had a copy of the AG Opinion to which she referred. She stated she did not have a copy but could provide one and further it was a fairly old opinion, at least a couple years ago. Basically, she would like the committee to clear up the language so no more confusion exists. Upon Chairman Humke's inquiry, Ms. McCurdy stated the parole commission works in panels of two. They also hire contract services hearing representatives to assist the commissioners at the actual hearing. She stated the hearing representatives do the exact work as the parole commissioner, preparing the file and making a recommendation. The 2-person panel makes a recommendation to the full board and then the entire commission makes a decision which must be passed by a 4- vote majority. She stated the full parole board needs to act on the decisions. Chairman Humke asked for further clarification on the parole commission operations. Ms. Monaghan asked if they get another parole commissioner would that mean some panels would consist of 3-person panels? Ms. McCurdy stated no the need for an additional commissioner is strictly to accommodate the workload in light of the Lovelock facility opening. Ms. McCurdy explained the travel arrangements and agendas for the parole commissioners clarifying a panel consists of a hearing representative and a parole commissioner. Upon Ms. Steel's inquiry, Ms. McCurdy attempted to explain the difference in why they need a parole commissioner now instead of just hiring an additional hearing representative since her previous testimony stated these positions do virtually the same thing. She surmised the difference is a hearing representative makes a recommendation only whereas a parole commissioner has a record vote. Upon Ms. Steel's inquiry, Ms. Gunderson stated they have 9 hearing representatives at this time and they can use two hearing representatives at a parole hearing. Mr. Perkins stated the fiscal note for this bill is $121,000 for the biennium which includes salary, operating costs, and travel and wondered if it was part of the Governor's budget. Ms. Gunderson stated yes. Mr. Perkins asked if the truth-in-sentencing bills and other legislation pending this session were to pass, would the parole commission's workload be less thereby not requiring an additional parole commissioner? Ms. Gunderson stated they would still have to travel to Lovelock. Upon Mr. Perkins' request for a "yes" or "no" answer, Ms. Gunderson said yes, even with less hearings before them, they would still require an additional commissioner. Mr. Anderson pointed out the expanded language in A.B. 288 which essentially provides for the inclusion of sexual offenses regarding minors. Additionally he defined what he believed they were asking for an additional commissioner for was to make their power clearer to everyone. Ms. Gunderson stated yes that was correct. Further, Mr. Anderson commented the practices of the parole board will not change if they get an additional commissioner, they will still have panels of two going out, and it will still be a panel of four that agree at the end. Ms. Gunderson stated that was correct. Upon Ms. Ohrenschall's inquiry, Ms. McCurdy responded the cost of a hearing representative (contract services) is $100 per day per service of hearings along with travel at the per diem rate. Ms. McCurdy stated the parole commissioner is paid a salary and they work full time whereas the contract person only gets $100 for sitting at a hearing. Ms. McCurdy attempted to comment on the inclusion of the sexual offenses in section 5(c) of A.B. 288 and added some clarification that all sex offenders go before the "Psyche" panel. The panel, consisting of two medical physicians and the Director of Prisons, interviews the individual prior to the eligibility hearing to determine if the individual is a menace to society. If they determine he is a menace to society, by law, the board cannot parole him. Ms. Ohrenschall asked if section 5(c) was not included in A.B. 288, would these sex offenders be afforded the possibility now of appearing before the parole commission? Ms. McCurdy stated the inclusion of section 5(c) was to make it more defined as to what cases could be heard before the parole commissioners. Ms. Ohrenschall inquired if this increases the jurisdiction of the board of parole commissioners. Ms. McCurdy concluded by stating if the committee would change the conflict from the two or more decision of the board to four there would not be any problem whatsoever. Ms. Ohrenschall stated that did not answer her question. Chairman Humke interjected the committee would take a break so Mr. Neilander could review the list of statutes applicable to the board of parole commissioners at section 5(c) which may assist the witnesses. The committee recessed for a break at 9:45 a.m and reconvened with a full quorum at 10:02 a.m. Noting discussion during the break on A.B. 288 Chairman Humke stated additional work was necessary on the bill. ASSEMBLYMAN STEEL MOVED TO RESCHEDULE THE BILL FOR A LATER HEARING SO ADDITIONAL TESTIMONY COULD BE PROVIDED TO THE COMMITTEE. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. The hearing was closed on A.B. 288 and the committee continued into a work session. Mr. Neilander outlined amendments to bills that will come to the floor clarifying in specificity Amendment No. 119 which amends Assembly Bill 186. Chairman Humke indicated the amendments above-referenced would now go to second reading. Chairman Humke asked Mr. Manendo to present A.B. 256 on the floor. Chairman Humke brought discussion of A.B. 277 back to committee. Mr. Anderson stated he believed they could move forward with an Amend and Do Pass on A.B. 277 rather than an Amend only. Through the discussion of committee members, Chairman Humke announced the action taken on A.B. 277 to Amend only would remain thereby allowing the committee to review the amendments before proceeding to Amend & Do Pass. Mr. Batten announced he has a bill which involves electronic monitoring devices pending. He provided Chairman Humke with copies of documents pertaining to electronic monitoring devices in domestic violence situations. Those documents are included herein as (Exhibit C) and were provided to each committee member. There being no further testimony or business conducted before the committee, the meeting was adjourned at 10:25 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary March 22, 1995 Page