MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session March 28, 1995 The Committee on Judiciary was called to order at 8:12 a.m., on Tuesday, March 28, 1995, Chairman Anderson presiding in Room 119 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: Governor Robert Miller Richard Gammick, Washoe County District Attorney Sue Edmondson, Washoe County District Attorneys Office, Juvenile Division Sheriff Dick Kirkland, Washoe County Stewart L. Bell, Clark County District Attorney Jerry Keller, Sheriff, Clark County Ben Graham, Clark County District Attorneys Office George Glanville, President, Families of Murder Victims Bill Iverson, Families of Murder Victims Eva Collenberger, Families of Murder Victims Bill Parker, private citizen Karen Winckler, Nevada Attorneys of Criminal Justice Tom Pitaro, Attorney at Law Larry Hyde, American Civil Liberties Union Rob Calderone, Nevada Association Juvenile Probation Officers Laurel Stadler, Mothers Against Drunk Driving Judy Jacoboni, Mothers Against Drunk Driving Lucille Lusk, Nevada Concerned Citizens David Sarnowski, Criminal Division, Attorney Generals Office Jim Weston, Reno Police Department James Jackson, State Public Defenders Office John Sarb, Department of Child & Family Services Nancy Tiffany, private citizen Chairman Anderson announced a quorum was present. ASSEMBLY BILL 317 - Makes various changes related to juvenile courts, sentencing, crimes and punishments. Governor Robert Miller presented testimony surrounding his proposal of A.B. 317 and his desire to be "tough" on crime. The bill addresses, in addition to other issues, penalties for juveniles, certifying juveniles as adults for committing certain crimes, parent accountability for juvenile offenders, victims rights, elimination of plea bargaining for repeat offenders, habituality, expansion of the residential confinement programs to non-violent offenders, establishment of a Sentencing Commission, truth-in-sentencing, fighting crime without raising taxes, restructuring the criminal justice system, and prison population. The Governor stated he is committed to these proposals. The Governor's prepared testimony is attached hereto as (Exhibit C). Upon Mr. Batten's inquiry, Governor Miller stated the initiation of parents' accountability for the criminal activities of their children would be left to the discretion of the judge after reviewing all the facts. Such accountability may be in the form of fines, restitution, and/or counseling. Mr. Humke asked if the lifting of the confidentiality rules regarding juveniles would be done in a case by case situation. Governor Miller stated yes it would be necessary once again to allow the juvenile judge that discretion on each case. Ms. Buckley inquired about felony DUI offenders and individuals who committed felonies in other states. Specifically, she asked if these individuals would be affected by the provisions on lines 38-39, page 19 pertaining to eligibility for a residential confinement program. Governor Miller stated the intent of the bill was to be restrictive in residential confinement eligibility. Governor Miller added the committee may want to make such inquiries to the law enforcement officers testifying today since they are the experts in that area. Upon Mr. Sandoval's inquiry, Governor Miller stated it would be the purpose of the Sentencing Commission to review truth-in-sentencing. Further, he stated his suggestion would be to have fixed minimums and fixed maximums. Ms. Stroth asked if A.B. 317 addresses illegal aliens in our prisons. Governor Miller stated he has made a formal demand individually and in conjunction with other states to obtain relief in this area from the federal government. Upon Mr. Goldwater's inquiry, Governor Miller stated there are two components addressing the "three strikes and you're out" theory. First, the application of habitual criminal statutes for third-time offenders needs to be on the books as it currently is not; and secondly, a points in prison systems would be an alternative to the three strikes and you're out law. Personally, he does not feel being "tough" on crime always constitutes being "smart" on crime. The points in prison would characterize each crime on an individual basis creating negative points rather than just setting forth the blanket of three times, you're out. Mr. Batten inquired about the effectiveness of a Sentencing Commission as it does not appear such commissions have been effective in the past. Richard Gammick, Washoe County District Attorney, testified in support of A.B. 317 but felt there was some fine tuning necessary. He stated he supports the lowering of the age for certifying juveniles as adults and he advocates for the rights of victims. He does not see the bill as a war on criminals but rather a war on violent crime. He believes truth-in-sentencing is a misnomer in the state of Nevada. Juvenile crime accounts for 3% of the crime in Washoe County and even though that may sound low, it scares and concerns people. He stated although the Legislature makes laws, the people who are enforcing and applying them would be necessary and imperative individuals to have on a Sentencing Commission. He supports the concept of a Sentencing Commission. He believes in house arrest programs for non-violent offenders. He believes the commuting of offenses should not be considered. If someone is sentenced to 20 years they should serve 20 years. Mr. Gammick stated Section 4, page 3 should be removed from the bill entirely regarding certifying a juvenile down between the ages of 18-21 because it clogs the system even more. Upon Mr. Humke's inquiry, Mr. Gammick stated even though Section 4 addresses those juveniles between the age of 16-18 years, he would like to see the entire section deleted since these offenders are violent offenders. Mr. Gammick asked the committee to amend Section 25, page 17, with regard to "impeachment" by adding the language "or other lawful purposes." He cited the evidence code as blocking this particular provision. Discussion among Mr. Carpenter, Chairman Anderson, and Mr. Gammick was held regarding the drug laws in the state of Nevada and the reality of how drug cases are truly handled in the courts and charged out by prosecutors. Ms. Steel commented she did not see how Mr. Gammick could make an ex parte policy of charging a misdemeanor when state law holds possession of an uncontrolled substance is a felony. Sue Edmondson, Deputy District Attorney, Washoe County Juvenile Division, testified in support of A.B. 317. Ms. Edmondson stated she began as a juvenile prosecutor ten years ago and at that time she prosecuted kids. Today, she prosecutes criminals. She stated last year in Washoe County, juveniles were arrested for participating in 12 drive-by shootings, 16 armed robberies, 17 brandishing of deadly weapons, 44 batteries with deadly weapons, and 105 incidences of carrying concealed weapons. From September, 1994 to March 10, 1995, 28 guns were found in the schools--the majority of which were loaded. Also, guns are all over since it is not illegal for kids to have guns per se and, hopefully, this Legislature will be able to address that as well. Further, Washoe County has identified over 800 gang members. Ms. Edmondson stated currently the Nevada Youth Training Center is the most severe punishment for juveniles. The maximum sentence a juvenile receives there is one year but they do not actually do a year because with good behavior they can be out in nine months. She believes a message needs to be sent that just because you are a kid you will not be saved from going to prison. She stated the intent of A.B. 317 is not to send all juvenile offenders into the adult system but rather take a small number of truly violent criminals and place them where they belong--in the adult system. Ms. Edmondson stated she supports any and all inclusion of victims rights in A.B. 317. Sheriff Dick Kirkland stated he supports passage of A.B. 317 in an attempt to address the violent crime aspect which is completely out of control, in his opinion. Sheriff Kirkland supports the portions of the bill involving youthful violence and it could even be stronger and the age for certifying a juvenile up could be made even lower. Further, educating the communities regarding the passage of laws involving juveniles needs to be implemented especially in targeted areas where these bills are most likely to play a role. He believes educating the public is essential and should be performed statewide so the language of the law is clear as to what the punishments will be for violent offenses committed by juveniles. Sheriff Kirkland agrees with the provisions applying to victims. He has no problem with the confidentiality portions of the bill. Sheriff Kirkland supports the house arrest programs but an amendment may need to be included at Section 28, lines 26-27, page 20 because the intent of the bill probably was not to delete the possibility of employment during house arrest. Being able to work while on house arrest helps provide funding for the program. Mr. Humke inquired if some of the older gang members use a young gang member to carry and pack firearms and would that be cured under A.B. 317. Sheriff Kirkland stated yes it is a factor as the violent criminal elements of our society are very flexible. They will find a hole in the system and adhere to it. For example, in drug cases six years ago law enforcement would seize the expensive vehicles and cash found in a drug bust. Now, these same offenders are renting cars and carrying less cash, etc., to adjust to the laws. Sheriff Kirkland concluded with regard to confidentiality of records for juveniles he is more concerned with addressing the needs of the victims in these cases and opening up the courts to them in assuring good public policy. In addition, the majority of cases he sees are multiple offenses and repeat offenders so if they are going to engage in that conduct it ought to be public information. Stewart Bell, Clark County District Attorney, Ben Graham, Clark County District Attorneys Office, and Jerry Keller, Sheriff, Clark County testified in support of A.B. 317. Mr. Bell provided the committee with a graph regarding the age of juvenile offenders and is attached as (Exhibit D). In order to make the bill more effective, Mr. Bell outlined and explained specific amendments he would like to see to the bill: 1) Strike the words "and sentenced" at page 1, lines 6-7; 2) Page 2, line 17, clarify "manslaughter" in relation to traffic accidents; 3) Page 3, line 28, delete "misdemeanor" in reference to certifying a juvenile down; Chairman Anderson interrupted for a moment to provide to the committee a copy of the amendments proposed in a Memorandum dated March 27, 1995, by the Governor's Office attached hereto as (Exhibit E). Mr. Bell's specific amendments continued: 4) Page 4, line 20, change "certified for" to "subject to"; 5) Page 5, line 44, place "violent" in front of the word "crime"; 6) Page 6, line 7, "6 hours" should be changed to "72 hours"; In discussing Section 6, Mr. Humke stressed there was a great amount of federal law addressing how juveniles are to be treated in jails and lock-ups so certifying juveniles up in the adult criminal justice system may pose some federal implications. Ms. Monaghan requested clarification regarding Section 5. Mr. Bell explained the difference between being 14 and committing a crime and being 15- 17 and committing a crime and the burden is on the district attorney to go to the judge and leave it to the judge's discretion on certification. Ms. Buckley expressed her concern that housing juveniles with adults in prison may turn out "better criminals" when the juveniles are released. Further, how will placing more juveniles in prison affect the overcrowding of our prisons? Mr. Bell estimated less than five juveniles per month would be taken directly to jail. Those few are committing a great risk of harm so it is important. He guessed with the 14 year old certification there would only be one or two per year actually going to prison in Clark County because he sees the proposed legislation as a deterrent effect. Sheriff Keller stated he could provide the committee with statistical figures for the last year on juvenile crimes and the amount incarcerated. Mr. Bell stated he went to a conference regarding the confidentiality issue for juvenile records. Generally, no one thought strict confidentiality was in order in this day and age. He stated the public perceives the word "confidentiality" to be tagged with "secrecy" and anything done in secret is viewed with distrust. Essentially, the outcome of the conference was to make the proceedings of a 14- year old or older charged with crimes which if they were an adult were a felony, remain open. If you are under 14 years of age, confidentiality would remain. If you are over 14 and it is a minor offense it would still be confidential. If you are 15 doing a felony, it would be open. He feels this holds the entire system accountable. Mr. Bell felt the committee should come up with a policy regarding the confidentiality issue and hold to it but allow the judge's discretion for borderline cases or cases that may cause more harm if the records are left open. Continuing with the requested amendments: 7) Page 12, Sections 11 & 12, fingerprints and photographs, Sheriff Keller believes they should be allowed to keep these records in preventing and addressing juvenile crimes; 8) Page 13, Section 14, there needs to be some flexibility regarding the non-violent habitual criminals. Also, add the language "or Information" after "Indictment" at lines 25 and 27; 9) Page 13, Section 17, add "representative" to lines 41 and 42 and other than that they support the idea of a Sentencing Commission; 10) Page 15, Section 18, line 10, change "guidelines" to "changes"; 11) Page 16, Section 21, line 12, add "except as when otherwise prohibited by law" which allows for the nonprobational crimes that may be changed in the laws from time to time; 12) Page 16, Section 21, line 34, change 30 days to 45 days; 13) Page 17, Section 24, line 27, "not less than 20 years" needs to have some strength as this language is ambiguous regarding parole eligibility; 14) Page 17, Section 25, lines 38-39, delete ". . . but such . . . offense,"; 15) Page 19, Section 27, delete (e) at lines 38-39; Mr. Bell stated his most important concern is at Section 29 and he thinks the most important law they can pass is to "make life without the possibility of parole" mean just that. Also, delete the date of July 1, 1995. As prosecutors, if they knew that "life without" means "life without" then they will not ask for the death penalty in many cases. Also, defendants do not see a distinction in life with the possibility of parole and life without the possibility of parole. More defendants will plead guilty because they know the difference. Money would be saved in our state because less trials would be held. Further discussion was held regarding due process and commuted sentences. Mr. Goldwater asked if there was a fiscal impact surrounding Section 29. Mr. Bell stated there would be little to no fiscal impact. Going to the teleconferencing held in Las Vegas, Chairman Anderson acknowledged Mr. George Glanville, President of Families of Murder Victims. Mr. Glanville stated they support A.B. 317 with the exception of Section 17. Mr. Glanville read into the record statements from previous commissions established approximately nine years ago regarding sentencing. Nothing has been done since that commission so he does not believe another commission should be established to study the sentencing structure of our state but rather the Legislature should just act now to establish policy. Mr. Glanville's prepared testimony is attached hereto as (Exhibit F). Mr. Bill Iverson, a private citizen of Las Vegas, and a member of Families of Murder Victims, and Ms. Eva Collenberger testified in support of A.B. 317. Mr. Iverson directed his testimony to possible strength in the bill regarding restitution to the victims. Ms. Collenberger's testimony was directed at expanding the definition of a victim. Bill Parker, a private citizen of Las Vegas, stated he supported passage of A.B. 317 and he commended the Governor for proposing the same. Specifically, Mr. Parker believes the confidentiality issue surrounding juveniles should be lifted. He was a victim of a crime committed by a juvenile and he had much difficulty obtaining information regarding the case and/or attending proceedings involving the crime committed against him. If these juveniles are committing adult crimes they should be treated as such and their names should be revealed. In Clark County, he believes there are 8,000 to 9,000 known gang members. Additionally, Mr. Parker disagrees with the provisions in Section 25 which require additional court review of convictions to determine if someone is a habitual criminal as pointed out by Ms. Ohrenschall, and the provisions regarding felonies occurring outside the state of Nevada as pointed out by Ms. Buckley. Sandy Heverly, of STOP DUI, testified in support of A.B. 317. They would like to see amendments to page 1, (a) through (f) at line 9 and where that language appears elsewhere in the bill as it does not address "substantial bodily harm." Secondly, page 7, lines 28 & 30 change "shall" to "may"; and page 20, line 27, address employment regarding restitution. She concluded by stating if a Sentencing Commission is enacted, a representative of a victim group should be included in the composition of the Commission. Karen Winckler, Attorney at Law, Nevada Attorneys for Criminal Justice testified they support A.B. 317 with the inclusion of a member from the private defense bar to the Sentencing Commission set forth in Section 7 of the bill. Ms. Winckler stated they will also supply the committee with written documentation regarding their concerns. Mr. Tom Pitaro testified in opposition to A.B. 317 surmising that he feels the bill places juveniles into an adult criminal justice system which the Legislature has complained does not work and is ineffective. Further he believes A.B. 317 removes the discretion from the court to make a case by case determination. Time prohibiting further testimony, the chairman adjourned the meeting at 11:06 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary March 28, 1995 Page