MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session May 17, 1995 The Committee on Judiciary was called to order at 8:14 a.m., on Wednesday, May 17, 1995, Chairman Humke 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 GUEST LEGISLATORS PRESENT: Senator Mark A. James, District No. 8 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: The Honorable James A. Stone, Second Judicial District Court Ms. Lucille Lusk, Nevada Concerned Citizens OTHERS PRESENT: (Continued) Ms. Judy Jacoboni, President, Lyon County Chapter, MADD District Attorney Richard A. Gammick, Washoe County Lieutenant Phillip Galeoto, Reno Police Department Mr. John Gibbons, Real Estate Division Deputy Attorney General Anne Cathcart Ms. Laurel Stadler, Lobbyist, MADD Assistant District Attorney J. Charles Thompson, Clark County Via teleconference from Las Vegas: Mr. Stephen Tanner, Stop DUI, Overton, NV Mr. Charles Collenberger, Families of Murder Victims Ms. Patricia Earl, Families of Murder Victims Ms. Gaydria Russell, Families of Murder Victims Ms. Arnetta Meagier, Las Vegas Metropolitan Police Dept.-Victim/Witness Ms. Elynne Wernikae-Greene, Las Vegas Metropolitan Police Dept.- Victim/Witness Ms. Sandy Heverly, Stop DUI Mr. and Mrs. Bill Meyers, Stop DUI Ms. Arlene Hayes, Families of Murder Victims Undersheriff Richard Winget, Las Vegas Metropolitan Police Dept. Sheriff Jerry Keller, Las Vegas Metropolitan Police Dept. Mrs. Eva M. Collenberger, Families of Murder Victims Mr. George Glanville, Families of Murder Victims Ms. Nancy Bryant, Families of Murder Victims Ms. Judy Hillberry, Families of Murder Victims Ms. Louise Lizzi, Families of Murder Victims SENATE BILL NO. 416 - Makes various changes regarding sentencing of persons convicted of felonies. Senator Mark A. James, District No. 8, sponsor, gave a brief overview of his bill. Senator James remarked crime was the biggest agenda item for all legislators. Senator James commented this legislature and Senate and Assembly Judiciary Committees have passed more hard-hitting crime legislation than any other in recent memory. A number of legislators of this committee have brought forth their own bills to fight the various aspects of crime. Senator James noted they have not been simplistic or without deliberation in doing these things. Instead Senator James noted a very careful, prudent study has been accomplished. The two judiciary committees working together, Senator James stated, addressed various aspects of crime in a prudent and reasonable fashion, relating to incarceration, protection of citizens from criminals, recidivism, rehabilitation. Some of those measures have gone to the Governor for signature. Senator James reminded the committee this session commenced with joint meetings of the judiciary committees to begin investigation into the process to determine the concerns for resolution. Senator James advised S.B. 416 is a work product of this committee's ideas, thoughts and inquiries. Senator James recalled testimony from families of murder victims and how the system needs improvement. Senator James commented S.B. 416 will reform the sentencing system in the manner the sentences are given criminals and what the sentences mean for the criminal and victim. As recently as 1994, Senator James advised Nevada is ranked as the seventh most dangerous state in terms of crime. Currently, Senator James advised Nevada has gone from seventh to the third most dangerous state in the nation, warranting bold measures for reform. Senator James distributed and gave brief introduction of (Exhibit C). Senator James reviewed the prison classification and planning division comparison of a 12-month statistical sample of average time given and served by inmates. Senator James advised this problem is addressed in S.B. 416 by increasing the sentence of the most violent crimes and changes the manner in which sentences are given and served to make sure violent felons remain in prison longer. Senator James explained the main objectives of this bill are: (1) every felony was categorized into five areas A-E, (2) requires minimum time be served before eligibility for parole or reduction of prison term, (3) gives violent felons longer sentences; (4) requires diversion and treatment for nonviolent, less serious offenses; (5) creates program of secured probation; and (6) includes provision where life sentence without possibility of parole cannot be commuted. Senator James advised under current law the statute sets forth a range within which a judge can sentence, for example, robbery sets forth a range of 1-15 years. The judge would select a determinant sentence within that range of 8 years. One third of the sentence must be served and at that time the inmate becomes eligible for parole. Unless the statute says otherwise, the term given by the judge can be reduced by sentence reducing credits. Senator James explained the time in prison actually served by the inmate bears almost no resemblance to the time given by the judge. S.B. 416 would give the same range within which the judge would sentence. If the range was 1-15 years for robbery, the judge would sentence within that range, but he would give a minimum and a maximum sentence. Every single day of the minimum sentence would have to be served. Built into the statute is a forty percent rule that the minimum term cannot be greater than forty percent of the maximum term. It ensures predictability in prison population. Senator James advised the department of prisons provided an analysis of the current law and sentence data included in (Exhibit C). Senator James informed the effect of the bill will result in hardening of the prison population by placing more violent criminals in longer confinement. Senator James advised one caveat is the requirement of shorter sentences and mandatory diversion to treatment programs. Senator James advised S.B. 416 is a very fiscally responsible proposal and the goal is to change the makeup of the prison population. If an inmate violates probation and returns to prison, the inmate is under the new sentencing regime. National Council on Crime and Delinquency (NCCD) developed a ten-year fiscal projection and a detailed computer analysis attached in (Exhibit C). Senator James informed Department of Motor Vehicles and Public Safety and Division of Parole and Probation indicated S.B. 416 would be a negative fiscal impact to their agencies. In reference to category E felonies, Mr. Goldwater asked Senator James why there is no prison time for these felonies. Senator James advised the most important reason is to have an underlying sentence. Under the existing system, the judge has the option of giving probation and statistics reveal about half of felony crimes go to prison and half receive probation. Senator James informed legislatively those offenders who receive probation with underlying prison sentence. In order to have an underlying prison sentence, there has to be a felony. Via teleconference from Las Vegas, Sheriff Jerry Keller, Las Vegas Metropolitan Police Department, testified it is important to recognize law enforcement police need tools to do their job, attached as (Exhibit D). Very often they are given implements but the real tools they need are contained in S.B. 416 to make our communities safer. Sheriff Keller advised no one strategy will ever be successful; it requires multiple strategies and flexibility. Sheriff Keller is a strong supporter of discretion in the hands of our judiciary and sends a clear message to the offender that they are going to serve time in prison. Via teleconference from Las Vegas, Undersheriff Richard Winget, Las Vegas Metropolitan Police Department, testified since 1960 violent crime has increased in the United States 371%, nine times faster than the population has grown. In Las Vegas the drive by shootings increased from 208 to 433. Undersheriff Winget expressed enthusiastic support of S.B. 416: (1) realistic, intelligent analysis to present a fiscally responsible master plan, (2) minimum sentences are instituted and good time credits will only be deducted from the maximum sentence, (3) addresses violent offenses, and (4) alternative sentencing for nonviolent offenses with treatment programs. District Attorney Richard A. Gammick, Washoe County, testified S.B. 416 is a comprehensive, anti-crime package that does more than lip service. It is putting crooks on notice that we are going after the violent criminals and those that will not listen. If they want to commit their crimes, they can go to another state. District Attorney Gammick advised he will also testify on the Governor's crime bill and others which will benefit law enforcement and the public. District Attorney Gammick expressed pleasure in the appointment of an interim commission in the Governor's crime bill. Over the next two years a commission made up of professionals in the field, legislators, judicial, and executive to watch the system to make recommendations to the next session with points to refine. Currently, offenders are getting out of prison before they process in. District Attorney Gammick advised S.B. 416 assures victims the offender will serve the minimum sentence in prison. Mr. Manendo commented they all share District Attorney Gammick's enthusiasm. Mr. Manendo remarked Nevada should consider instituting the chain gang as another deterrent. District Attorney Gammick mentioned "Cool Hand Luke" is one of his favorite movies. District Attorney Gammick advised he would have no problem with making the voluntary work program mandatory. Mr. Sandoval asked District Attorney Gammick if S.B. 416 will have any effect on incidence of trials. District Attorney Gammick replied as with any other new program it will be a shock to the system in regard to indeterminate time sentencing and time frames as opposed to past practice. Initially, District Attorney Gammick advised there will be an increase in trials because of lack of understanding. In the future District Attorney Gammick predicted more trials for violent crimes because of longer sentences. District Attorney Gammick stated S.B. 416 has enough latitude built in that Nevada will not experience the same problems California did. Mr. Sandoval inquired if the prosecutor will be the individual who will recommend to the court the sentence. District Attorney Gammick informed it will fit into the current system. Mr. Carpenter asked District Attorney Gammick if he was in agreement the minimum can only be 40%. District Attorney Gammick responded today they do not see 40% as a minimum when the violator is getting out. District Attorney Gammick advised it is actually an increase. The 40% minimum can be changed if it does not work in the next session. Mr. Anderson indicated the last response brought forth a concern of the perception of increasing the 40% minimum next session is a disservice to this bill and will impact on the court system, plea bargaining, court time. Mr. Anderson stated if it is increased to 100% minimum, every case will go to trial and it will take away an important element of plea bargain. Mr. Anderson inquired if a study was done in Washoe County system to see how many cases are currently plea bargained. District Attorney Gammick replied Washoe County is similar to Clark County. District Attorney Gammick clarified he is not advocating to come back next session to change the 40% minimum. Mr. Anderson asked if this bill overly restricts ability to continue using staff time most beneficially and given a certain level of latitude. District Attorney Gammick responded it is a great place to start and may or may not need fine tuning later. Mr. Carpenter commented with a more definite sentence, it may cut down the court and plea bargaining time. District Attorney Gammick agreed totally. Because of the shock effect of the bill, initially trials will increase and taper off to not much of an impact. The Honorable James A. Stone, Second Judicial District Court, formerly chairman of the Assembly Judiciary Committee, testified in support of S.B. 416. Judge Stone's involvement in the process of developing S.B. 416 motivated his invitation to testify from Senator James. Judge Stone expressed frustration in explanation to victims exactly how much time the offender will actually serve in prison. Judge Stone gave the most horrifying example where a fifth offense DUI violator was sentenced to two years in Nevada State Prison with 60 days county jail incarceration. Two months later the same violator was in front of him with his sixth DUI offense. Judge Stone noted S.B. 416 gives a degree of certainty of amount of minimum incarceration. At sentencing Judge Stone advised he is not bound by a plea bargain agreement or parole and probation recommendation. Judge Stone noted justice is not cheap and there has to be some way of making sure the fiscal impact is not out of control. The 40% maximum/minimum sentence accomplishes that goal. Judge Stone commented S.B. 416 is way overdue and wished he had thought of it ten years ago when he chaired this committee and urged its passage. Mr. George Glanville, President, Families of Murder Victims, testified in support of S.B. 416 and advised by increasing the minimum time of violent sentences, it would be reducing future crimes. Mr. Glanville noted anyone can be a victim even members of this committee and urged the committee to let the courts tell the truth when violators are sentenced. Mr. Glanville remarked to members to please fulfill the mandate given by the voters in November and join with the Senate and Governor Miller in passage of S.B. 416 as submitted. Mr. Charles Collenberger, Families of Murder Victims, recent UNLV criminal justice graduate, testified our laws are still based on old English common laws. These laws have been evolving through the years and changing to meet new conditions. These changes have been slightly haphazard to meet the public and political pressure of the times. Because of these pressures the punishments for different types of crimes have never been matched according to the degree of victimization. Sentences became further out of kilter. An outcry has risen for truth in sentencing. S.B. 416 is a step in the right direction. In looking at the laws as a classroom experience, father of a murdered daughter, rape crisis counselor, friend of Sandy Heverly as she strived to change the DUI laws, Mr. Collenberger realizes how confusing the laws are to all parties. Because of the scope of the bill, Mr. Collenberger imagined it could not transpire in one session. S.B. 416 is a bill with a true minimum sentence and maximum based upon the prisoner's actions while in prison. Mr. Collenberger noted this awesome bill could be used as a model for other states. He especially approved of Governor Miller's idea of a sentencing commission to oversee its operation is a perfect companion bill. Mr. Collenberger can only hope the committee will pass S.B. 416 which Senator James and others devoted their time and knowledge to develop. Ms. Judy Hillberry, Families of Murder Victims, testified her son was murdered five years ago. The perpetrator received a five year sentence and only served fourteen months in prison. Ms. Hillberry stated S.B. 416 will have a major impact on the crime rate in the state. Ms. Hillberry trusts the committee as decent caring people would vote in favor of S.B. 416 to protect the public. Ms. Louise Lizzi, Families of Murder Victims, testified her 25-year old daughter was murdered in 1992. Two perpetrators were arrested. One entered into a plea bargain and was sentenced to 15 years for robbery. The minute the female violator walked out the courtroom the 15 year sentence became a 9 year sentence. Three months ago she appeared at her parole hearing. The second perpetrator was on a life sentence when he committed the double homicide and still has not come to trial three years later. Ms. Lizzi pleaded for the committee's help in passage of S.B. 416 to aid families of murder victims. Senator James advised the committee Ms. Arlene Hayes, Families of Murder Victims, previously testified before the joint meeting of the judiciary in Las Vegas. She is the woman whose husband was murdered 25 years ago. The perpetrator was sentenced to life without the possibility of parole and was released 10 years later. Then two years ago Ms. Hayes son was murdered by a person who committed numerous armed robberies and was on parole. Ms. Hayes has become too ill to testify any further before the committee as a result of stress. Senator James added this bill gives the average time served of 184 months for murder which will increase to 312 months. Ms. Sandy Heverly, Stop DUI, testified in support of S.B. 416 and believes the victims should see some semblance of retribution and justice. Ms. Heverly stated victims should not be subjected to endure subsequent distress, frustration, and re- victimization by a system that has made a mockery of the sentencing scheme. Victims attend arraignments, bail hearings, preliminary hearings, testify, go through disappointment of postponements, continuances, and endure the frustration of dealing with numerous prosecutors. Ms. Heverly pointed out victims receive no good time credits, no early release from their pain and suffering, no parole and no pardon. Ms. Heverly stated truth in sentencing will benefit victims and society as a whole and it is time we mean what we say and do what we mean. Ms. Heverly expounded criminals must know without exception the penalties will be carried out to the fullest extent of the law. Ms. Heverly commended Senator James and everyone involved in developing this endeavor and their outstanding commitment. Mr. and Mrs. Bill Meyers, Stop DUI, parents of a 6 year old boy killed by fourth offense DUI driver, testified to the stress of appearing in court, hoping the perpetrator would receive the maximum sentence. The judge gave the DUI offender 20 years imprisonment and the parents face the rest of their life without their son. Mrs. Meyers asked for clarification of the 40% minimum sentence in a case like theirs. Chairman Humke advised he will request Senator James to respond in a letter to her inquiry. Mr. Meyers has a law enforcement background from the U. S. Army and stressed the need to continue working on these programs. Truth in sentencing is something that has to be. Mr. and Mrs. Meyers urged the committee to pass S.B. 416. Mr. Stephen Tanner, Stop DUI, testified in support of S.B. 416. His twenty year old daughter was killed by a DUI driver in 1991. Mr. Tanner advised it took almost two years until the female driver was incarcerated in Nevada State Prison. At the present time she is eligible for house arrest. Mr. Tanner noted he spent as much time getting her to prison as she spent there. Mr. Tanner remarked a very thorough job was done in developing S.B. 416 and it is what the public demands of our legislature, especially truth in sentencing. Mr. Tanner commented the victims want to be assured of the actual incarceration period. Mr. Tanner urged the committee to pass S.B. 416 to satisfy the victims. Assistant District Attorney J. Charles Thompson, Clark County, formerly a judge in Las Vegas, testified in support of S.B. 416 and represented District Attorney Stewart L. Bell, Clark County, who also supports this bill. Assistant District Attorney Thompson noted in sentencing thousands of individuals to prison, five on death row, he never knew exactly how much time an individual would serve in prison. Assistant District Attorney Thompson noted some of the penalties are changed and the more violent offenses will carry potentially more serious, longer sentences. There is encouragement for the nonviolent offenses for the courts to use diversionary programs and a mandatory probation for certain nonviolent offenses. Assistant District Attorney Thompson stated with this goal in mind to have predictability in sentencing and tougher sentences for violent offenses, S.B. 416 is designed to achieve. Assistant District Attorney Thompson commended Senator James, his subcommittee, and staff for the largest review of the criminal system in Nevada. Senator James advised of his May 18 schedule. In answer to Mrs. Meyers' question on the 20-year sentence, Senator James informed it will double the minimum under S.B. 416. Chairman Humke will provide Mrs. Meyers' address to Senator James. BILL DRAFT REQUEST: ASSEMBLYMAN MANENDO MOVED TO REQUEST A BILL DRAFT ON RELIEF TO RURAL COUNTIES ON MANDATORY DUI EVALUATIONS. ASSEMBLYMAN ANDERSON SECONDED THE MOTION. THE MOTION CARRIED. (ASSEMBLYMAN CARPENTER AND MONAGHAN VOTED NO.) ASSEMBLYMAN ANDERSON MOVED FOR INTRODUCTION OF BDR 15-1883. ASSEMBLYMAN MANENDO SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN ANDERSON MOVED FOR INTRODUCTION OF BDR 5-2015. ASSEMBLYMAN STEEL SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN ANDERSON MOVED FOR INTRODUCTION OF BDR C-2036. ASSEMBLYMAN STEEL SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMAN ANDERSON MOVED FOR INTRODUCTION OF BDR 11-843. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED. There being no further business before the committee, the meeting adjourned at 10:02 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman David E. Humke, Chairman Assemblyman Bernie Anderson, Chairman Assembly Committee on Judiciary May 17, 1995 Page