MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session March 29, 1995 The Committee on Judiciary was called to order at 8:10 a.m., on Wednesday, March 29, 1995, Chairman Anderson presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Bernie Anderson, Chairman Mr. David E. Humke, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Mrs. Dianne Steel Ms. Jeannine Stroth STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Mr. David F. Bash, III, Nevada Division of Child and Family Services Mr. Robert Bayer, Director, Nevada Department of Prisons Mr. Robin Bates, Chief, Classification & Planning Division, Nevada Department of Prisons Mr. Glen Whorton, Classification & Planning Specialist, Public Information Officer, Nevada Department of Prisons OTHERS PRESENT: (Continued) Honorable Charles M. McGee, Second Judicial District Court Judge Ms. Lucille Lusk, Nevada Concerned Citizens Mr. Richard Wyett, Chief, Nevada Division of Parole and Probation Ms. Jan Weintz, Nevada Division of Parole and Probation Mr. Ben Graham, Legislative Representative, Nevada District Attorney's Association Mr. David Sarnowski, Chief Deputy Attorney General, Criminal Division Ms. Laurel Stadler, Legislative Liaison, Mothers Against Drunk Drivers Ms. Judy Jacoboni, Chapter President, Mothers Against Drunk Drivers Mr. Rob Calderone, Director, Juvenile Services, Nevada Association of Chief Juvenile Probation Officers Ms. Ande Engleman, Nevada Press Association Ms. Nancy Tiffany, citizen Mr. David Gibson, citizen Lieutenant Phil Galeoto, Reno Police Department Honorable Michael Gibbons, Ninth Judicial District Court, Douglas County Mr. Stan Olsen, Las Vegas Metropolitan Police Department Mr. Kirby Burgess, Clark County Family/Youth Services Mr. Edward Zimmer, Ironworkers 433 Mr. James J. Jackson, Nevada State Public Defender ASSEMBLY BILL NO. 317 - Makes various changes related to juvenile courts, sentencing, crimes and punishments. Honorable Charles M. McGee, District Court Judge, Second Judicial District Court, Department Two, Washoe County, disagreed with automatic certifications in Section 1. A presumptive certification of juveniles is preferred. He supported all other provisions of this bill. It is a strong and important expression of getting tough on juvenile crime. Finally, he spoke out in favor of the life skills project being promoted by the Governor's Office and the Department of Parole and Probation. In his 15 years on the bench this program is the best he has seen. In regard to certification of a juvenile down provision, Mr. Humke and Judge McGee concurred this provision is being overused by the defense bar because automatically a motion is filed causing a delay of 30-60 days. Judge McGee recommended following the Governor's lead by amending it to apply to nonviolent, single, gross misdemeanor offenses. It would curtail the abuse of this provision. Ms. Monaghan expressed concern in certification of 14 years of age and older children who commit felonies. Judge McGee noted very infrequently do children 14 years and younger commit violent crimes. It is not medically plausible to call a 14 year old a sociopath because their lack of values have not yet been set in stone. A 14 year old who commits a first-degree murder is subject to the adult court system. Judge McGee is in favor of a 14 year old and older being certified to the adult court. Chairman Anderson mentioned the committee members may observe Judge McGee's court on every Wednesday at 4 p.m. Ms. Nancy Tiffany testified as a concerned citizen in overall support of A.B. 317, except Sections 27 and 28, attached as (Exhibit C). She has a B.A. in sociology and has worked ten years for the Parole and Probation Department overseeing the parole process of the state. Ms. Lucille Lusk, Nevada Concerned Citizens, testified in support of A.B. 317. This bill combines the best of all proposals. It succeeds in focusing on the severity of the crime and use or threat of use of force rather than an instrument used to commit the crime. It allows the judge to involve the family and penalize parents when appropriate without mandating it in cases where it may be inappropriate. At the same time it succeeds in encouraging and enforcing personal responsibility of the youth offender. It also ties down the driver's license issue to public safety so that the penalty fits the crime rather than use the driver's license as a penalty when it has no connection to the crime committed. There are excellent guidelines and elements of truth in sentencing with the fact that the death sentence or life imprisonment without parole cannot be commuted. By requiring the judge to state the minimum of incarceration at sentencing in the presence of victim and public, no fiscal impact will occur. In regard to confidentiality at page 7, section 7, these cases should be open unless the judge specifically determines public interest would be served by case closure. Amendment proposed at ll. 23-28 to read, "unless the judge or in case of the referee determines in his sole discretion that closing the proceeding to the general public will serve the best interest of the public and he so orders, the general public must be admitted." She noted a minor discrepancy on page 14, l. 2, where the speaker of the assembly shall appoint two members who are assemblymen. Uniquely, this session there are two speakers. A decision has to be made as to which speaker can appoint to the sentencing commission. Value can be seen in an on-going sentencing commission; but, as a general member of the public, she would like to see overall policy decision making remain with the elected officials. The judge should consider both the best interest of the public and the child. In violent crimes, the best interest of the public has to take precedence. Many times confidentiality allows a child who has stepped over the line in committing violent crimes to escape the consequences of their behavior. Ms. Laurel Stadler, Legislative Liaison, Mothers Against Drunk Drivers, testified against A.B. 317, attached as (Exhibit D). The need for a sentencing commission was not seen; but recommended a victim advocate be added to it if established. Residential confinement concept is very appropriate if significantly strengthened by increasing limitations on eligibility and adding required treatment and employment. She recommended deleting section 27 and adding any expansion to the 305 Program to statutes. Ms. Judy Jacoboni, Chapter President, Mothers Against Drunk Drivers, testified against A.B. 317, attached as (Exhibit E) and proposed amendments, attached as (Exhibit F). She requested the committee to please improve the residential confinement program before you expand the program. Chairman Anderson closed the hearing on A.B. 317. ASSEMBLY BILL NO. 324 - Allows disclosure of certain information concerning child who is charged with committing certain delinquent acts and requires related proceedings to be open to public. Mr. John C. Carpenter, District No. 33, sponsor, introduced the Honorable Thomas L. Stringfield, Senior District Judge, Elko County. Judge Stringfield advised he handles all juvenile matters in Elko County in addition to one-half the criminal and civil workload. In terms of student population Elko is the third largest county with 10,000. He urged 12 years of age and older juvenile proceedings be open automatically and with no discretion to the public. Due to the secrecy of juvenile court proceedings, he emphasized the harm by undermining public confidence in handling juvenile crime. It has undermined law enforcement confidence in our juvenile system for the same reason. Most harm has been done to the children because we have continued overindulgent and overprotective parent attitude and now the state of Nevada steps in and continues the same philosophy with that child. It tells them we are not sure if they are the delinquent, criminal, or the victim. We are protecting these children from the natural consequences that would otherwise occur to them when they hurt people and property. It is removing them from that ordinary consequence that set them up for more and more delinquent and criminal behavior later. If they experience those natural consequences early, we would see much fewer delinquencies with these children later. Every time you hear the word discretion, it dilutes certainty. Let the message go out that every child 12 years and over is going to experience public scrutiny. This would do more good in deterring juvenile crime and costs nothing. Judge Stringfield recommended allowing juvenile courts to enter judgments against the parents due to malicious acts of their child with a $10,000 limit, including treatment costs. On abuse of certification down of juveniles, preliminary examination should be required in district court proceedings. In this manner the time between arraignment and trial can also be used for exploratory investigation resulting in no time loss. As soon as the district attorney files a petition alleging a delinquent act, it is public. Juvenile court handles two types of children: (1) children who commit crimes; and (2) status offenders who are incorrigible, truancy, runaways. Judge Stringfield noted treatment of young sexual offenders is generally more effective than older sexual offenders. Ms. Ande Engleman of the Nevada Press Association testified in support of A.B. 324, attached as (Exhibit G) with proposed amendments. It will require the courts to be consistent and treat everyone equally. Currently, judges are keeping records sealed even in the adult court system. The Honorable Michael P. Gibbons, District Judge, Ninth Judicial District Court, Department Two, Douglas County, testified in support of A.B. 76. Judge Gibbons was a deputy district attorney for 13 years. He related a case of a 15 year old rape offender and strongly recommended the age of 14 be imposed for prosecution of felony offenses as an adult. In 1992 juveniles 12 years of age and younger committed 33 murders and 638 rapes. A UNR criminologist determined from a study there will be an increase in violent crimes particularly from juveniles and gang members. The issue of lowering the age to 15 or 14 was debated by the district attorneys' association meeting last June in Carson City. After discussion, it was decided 14 was the more appropriate age. He strongly recommended the four bills before the committee to lower the age should be set at 14 years. These bills also address the issue of should the prosecution start in adult court or in juvenile court. If a juvenile of any age is charged with murder or attempted murder, the case is automatically referred to adult court. The committee will have to address what series of crimes involving a deadly weapon should be listed that automatically go to adult court. Should the prosecuting attorneys or the court decide what cases go to adult court? Judge Gibbons suggested leaving the law as it is for the automatic class of crimes that go to adult court. Authority of juvenile court should be increased to take other cases to adult court without regard to age. Judge Gibbons recommended no age limit whatsoever for certain types of crimes to be taken to adult court. It can be done by amending this bill at page 3, section 5, under discretionary certification, adding "or the offense is a felony that involves the use or threatened use of a deadly weapon or the offense is sexual assault involving the use or threatened use of force or violence against the victim or an attempt or conspiracy to commit any of these offenses." He compared A.B. 317, page 2, section 2, list of offenses require age of 16 before case goes to adult court automatically. His proposal is it does not matter what age you are; but, it is not automatic. Under Judge Gibbons' proposal the decision of jurisdiction would not be made days after a crime is committed, but a month or two later. A petition would be filed in juvenile court, the district attorney would have to request that the matter be transferred to adult court. The juvenile probation office would conduct an investigation, make a recommendation to the court outlining all the pros and cons of the transfer to adult court. Then after hearing arguments, the juvenile court judge would make a disposition. Mrs. Steel commented it seemed the case would be tried twice. She had not seen any evidence if a case went to district court first and had to stay there throughout, the district court judge would be cruel or unusual in charging of this young person. In other words the judge could make the proper disposition and discipline to the child without going through two different proceedings. Judge Gibbons advised the investigation done by the juvenile probation office is similar to a pre-sentence investigation done in adult court before a person is sentenced. It does not require witnesses to testify. It is informal. It is putting together information from the police report, prior record, impact of crime on victim. It is an evaluation of the information and making a final recommendation. It will not happen in a great number of cases to become a burden on the juvenile probation office. If a case automatically goes into adult court, and the offense proves to be a lesser offense than a felony, the juvenile will have an adult criminal record with a misdemeanor offense. ASSEMBLY BILL NO. 149 - Removes certain felonies involving use of firearm from jurisdiction of juvenile court. There was no one in attendance wishing to testify on A.B. 149. ASSEMBLY BILL NO. 150 - Makes various changes regarding jurisdiction of juvenile courts. There was no one in attendance wishing to testify on A.B. 150. ASSEMBLY BILL NO. 317 - Makes various changes related to juvenile courts, sentencing, crimes and punishments. Lieutenant Phil Galeoto, Reno Police Department, testified in support of A.B. 317. On behalf of Chief Jim Weston, he commented they were very appreciative the Governor contacted his department and discussed the various elements of the proposed bill. They have found no unfunded mandates in this bill. Specifically, the gang related elements of the bill are very important. Twice annually a survey is conducted in the city of Reno and the number one issue of concern is fear and threat level of gang activity. This bill addresses both lowering and underlining the bottom line when it comes to the ages and the types of crimes where the juveniles become involved in serious, violent criminal acts. They are identified and treated as adults rather than children. If this bill is passed in this form, it will give law enforcement a new tool relating to parent accountability. It gives the courts more control over the family and makes them more accountable. They have found the activities of the community action team people referred to as the CAT teams, who specialize in gang criminal investigation, very successful. Accountability of parents is lacking now. They are strongly in support of release of information to the public and the repeat offender elements of this bill. Chief Criminal Deputy Attorney General David Sarnowski, testified in support of A.B. 317, and read into the record a March 23, 1995, letter from Attorney General Frankie Sue Del Papa, attached as (Exhibit H). He extended Attorney General Frankie Sue Del Papa's apology for not being able to be present because she was attending the National Attorneys General Association meeting on the East Coast. The national meeting will discuss issues, such as federal habeas and inmate litigation reforms. Mr. Sarnowski proposed the following minor amendments: change "district attorney" to "prosecuting attorney" throughout the bill: P. 8, l. 23, p. 13, ll. 26 and 29; p. 17, l. 28; p. 18, l. 48. P. 20, l. 13 and p. 21, l. 2, amendment to make it clear that home confinement offenders who escape would be subject to a felony, N.R.S. 212.090 and 212.095, respectively. Mr. Kirby Burgess, Director, Clark County Family Youth Services, formerly the juvenile court, was accompanied by Mr. Ben Graham, Legislative Representative, Nevada District Attorney's Association. For the sake of brevity, Mr. Burgess appreciated the direction of the committee in terms of A.B. 317. He indicated he was available to assist a work study group to bring closure to this issue. He sees a lot of kids with serious problems in the detention center which is severely overcrowded. Due to this fact they are early releasing offenders, who probably should remain in detention. Ms. Monaghan asked for a brief synopsis of children under 14 years of age and the typical charge. Mr. Burgess advised most of the youth in detention were between the ages of 15-17. They are charged with robbery, aggravated assault, or more serious types of crimes. They are detaining the worst type of youth. Probationers are put on electronic monitoring or home management program. Mr. David Gibson, Deputy, Clark County Public Defender's Office, testified in support of A.B. 317. Mr. Gibson advised he is a lifetime resident of Nevada, attended local schools, married and has five children. From a personal point of view A.B. 317 is really an appropriate attempt by the legislature to address some very important issues to all of us. In particular, the situations our children confront on a daily basis not just on the streets but in the schools. His concerns as a father are addressed very well. He agreed with the judge who spoke of automatic certification to the district court for certain crimes. Mr. Gibson suggested the following amendments: Regarding the area of parental restitution, p. 9, section f, he asked the committee to use caution. On pp. 4 and 5, subsection 3, regarding certification insert language, "or if the case is resolved as a misdemeanor or gross misdemeanor." On p. 6, l. 10, insert "24 hours" instead of 72 hours throughout. On p. 13, l. 37, section 17, add additional member from the State Bar. On p. 17, l. 36, section 25, do not delete language. P. 19, l. 27, make sub (a) as a subsection, insert, "is not eligible who" after "must provide a public defender." On p. 21, l. 19, if provision is made retroactive it will have a great fiscal impact in post conviction relief hearings in motions for new trials based upon the fact the plea was not entered freely and voluntarily. Mr. Graham advised the retroactive provision has been deleted. Mr. Humke announced information compiled by Ms. Patricia Justice and Michelle Gamble of NACO pursuant to his request on residential confinement will be distributed to the committee. Mr. Robert Bayer, Director, Nevada Department of Prisons; Mr. Robin Bates, Chief, Classification & Planning Division, Nevada Department of Prisons; Mr. Glen Whorton, Classification & Planning Specialist, Public Information Officer, Nevada Department of Prisons, testified in support of A.B. 317. Mr. Bayer pointed out testimony this morning has shown this is one of the best reasons to support the sentencing commission. Due to the complexities of sentencing, a hearing could be had on every sentence. The expanded use of residential confinement is a very important part of the Governor's crime bill. The public wants the violent and habitual offender punished. At the same time alternatives to traditional incarceration must be found that considers not only the fiscal resources of the state but restitution of the victim. The final goals of rehabilitation to ensure recidivism is reduced. As technology advances, the concept of punishment, prisons, and cells changes. Solutions, amendments, and explanations were offered. In the terms of residential confinement, the offender is still an inmate. If they were on probation or parole, they do not have the same due process rights as someone else who would be in the same situation of house arrest,. They are still inmates of Nevada Department of Prisons even though they are in the community and supervised by Parole and Probation. If they are a threat to the community, the inmate can be returned to prison. When they are on probation or parole, certain due process rights requirements have to be met before they are returned to prison. Inmates may sit in the county jail or remain free in the community until court hearing. A very important life skills program under the supervision of Parole and Probation is designed for probationers, parolees, and house arrest persons in the 305 residential confinement program. It is a mistake to believe there is no program component of the residential confinement expansion. Mr. Bayer pointed out the low recidivism rate in the 305 program substantiating residential confinement of inmates is worth exploring further. In 1991 the parole requirements were changed to allow for those inmates serving a minimum sentence of one year. Those inmates eligible for parole prior to one year would now be eligible for parole. In a recent study it was learned only 8.6% received parole. Out of 424, 381 received denials from the parole board. In 1991 the legislature said they were eligible for parole. This is the kind of group of inmates we would be drawing from to put into the residential confinement program. Inmates are very carefully monitored. There are more protections than if they just went out on parole. Mr. Bayer could not understand why now they are not considered as acceptable risks for an expanded residential confinement program versus a straight parole. Often other agencies are not aware of the advanced technology. Department of Prisons is comfortable with the improved technology. It is important to develop as many alternatives as possible. In this manner as much safety for the public can be provided as necessary while inmates are under supervision. On p. 19, ll. 20-21, Mr. Bayer clarified there is no confusion between Parole and Probation and the Department of Prisons. In 1992 the Director of Prisons wrote a letter to the Division of Parole and Probation stating if the person is assigned to residential confinement by the Director of Prisons, the Department of Parole and Probation is authorized to establish the terms and conditions of residential confinement and to return the person to prison if he violates such terms and conditions. Further, the Director of Prisons stated he was aware the staff of Parole and Probation denied admittance to residential confinement of an individual because he could not establish a viable residence and employment plan. It was not proper for Parole and Probation to make this type of determination. Argument of authority was never challenged under N.R.S. 213.080 of who should be put under supervision of Parole and Probation. Certainly, if it should be clarified, the following amendment is recommended, "pursuant to the standards adopted by the director pursuant to subsection 2 and the standards adopted by the Division of Parole and Probation assign the offender. . .". When the question of employment is considered, once put in the statutes, then there are no alternatives. If you allow Parole and Probation to develop the regulations and to consider who they can supervise, you have a more flexible, meaningful program. For example, a wheelchair bound individual did not have employment, but he did have sufficient income, so there was no question he could live and survive. Under those conditions, one would think he might be a suitable risk for residential confinement. Mr. Bayer would rather have the Department of Parole and Probation have the flexibility to put that in their particular rules and regulations. Call to the floor summoned members. Chairman Anderson requested written testimony be provided to the committee. He further stated limited testimony will be taken during March 30, 1995, committee hearing. There being no further business, the meeting was adjourned at 11:05 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary March 29, 1995 Page