MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session May 19, 1995 The Committee on Judiciary was called to order at 8:11 a.m., on Friday, May 19, 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. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth COMMITTEE MEMBERS EXCUSED: Mr. Richard Perkins GUEST LEGISLATORS PRESENT: Senator Mark A. James, District No. 8 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Ms. Kathy Jacobs, Victims In Crisis Turmoil or RecoverY (VICTORY) Ms. Kim Walsh, Treasurer, VICTORY Mr. Ben Graham, Nevada District Attorneys Association Ms. Toni Angelini Rash, VICTORY Ms. Adriene Angelini Hoover Ms. Elizabeth B. Kolkoski, Chief of Elder Rights, Nevada Division for Aging Services SENATE BILL NO. 416 - Makes various changes regarding sentencing of persons convicted of felonies. Ms. Kathy Jacobs, Victims In Crisis Turmoil or RecoverY (VICTORY), testified in support of S.B. 416. On February 27, 1990, she was assaulted in her home by a man with five prior felony convictions. Ms. Jacobs has four children who were present at the time of the assault. Through a plea bargain agreement the perpetrator was convicted of first degree kidnaping and received a sentence of life with the possibility of parole. In reality, the sentence only meant he was going to spend five years in prison before he was eligible for parole 11/94. Parole was denied for three more years. The parole hearing brought back the pain and suffering her family went through in 1990 by reliving the crime. Ms. Jacobs stated every person who is sentenced has a victim in his crime, and the victim is sentenced to the same amount of time. Ms. Jacobs asked the committee to support S.B. 416, as it is fair for the victims of the crime. Ms. Kim Walsh, Treasurer, VICTORY, testified she is a victim of a crime. Ms. Walsh commented the criminal will know that this is no longer an easy street. The offenders will go to jail for a minimum sentence, and good time credits will not make a difference. Ms. Walsh urged the committee to support S.B. 416. Ms. Toni Angelini Rash and Ms. Adriene Angelini Hoover, VICTORY, testified their father was murdered and urged the committee to change the laws regarding victims' rights. In the early morning of May 2, 1990, Anthony Angelini was murdered by Donald Joseph Rogers, an ex-felon with a lengthy criminal record of violence where he had been paroled or given probation each time. Ms. Rash and Ms. Hoover asked for passage of S.B. 416 so no other grandfather and father has to lose their life to a violent criminal nor any other grandchildren have to ask why a bad man would kill their papa, so no other families will have to search for answers that will never come. They expressed their concern that victims have no voice in the appellate court. Ms. Elizabeth B. Kolkoski, Chief of Elder Rights, Nevada Division for Aging Services, testified in support of S.B. 416, attached as (Exhibit C). Chairman Humke inquired if she suggested amendment to A.B. 585 or make the provisions in S.B. 416. In the event A.B. 585 does not pass Ms. Kolkoski advised the provision of 1-20 years in S.B. 416 be considered. Chairman Humke will confer with the committee but indicated they would probably be inclined to amend A.B. 585 with the provisions she suggested. Senator Mark A. James, District No. 8, sponsor, advised he reappeared to answer any more detailed questions the committee may have on S.B. 416. Senator James reiterated every sentence set forth in the bill is a revision and would be a longer sentence. It will provide at least a one year minimum, in some cases, two, three, or five year minimum based on the statutes. In addition, it is whatever minimum the judge gives within the forty percent rule in order to keep violent criminals in prison longer and release nonviolent criminals into probation sooner. Presiding Chairman Sandoval recognized Ms. Buckley, who expressed concern with the hardening of the prison population and ensuring safeguards for staff and guards. Senator James agreed the bill should go forward and there is demonstrable proof this bill will enhance public safety. Mr. Anderson said Ms. Buckley has spoken to part of the concerns as it is our responsibility to make the record clear of an increase of costs in prison operations. Mr. Anderson advised the current facilities will have to be refurbished to meet the needs of this hardened population as evidenced by the prison tours. Senator James commented the prison population will not be substantially changed until later on, five years. Senator James did not see it as a large capital issue. Mr. Carpenter commented he fully supports S.B. 416 and did not see a fiscal note. Mr. Carpenter advised monies will be available in the Governor's budget to take care of the next two years. One issue not discussed is the deterrent factor which could cut down the number of incarcerations. Mr. Carpenter noted one new prison will open by July with another under construction. If communities are to be kept safe, the price has to be paid. What was done in the past has not worked and Mr. Carpenter said it was time for change. Mr. Carpenter referred to p. 95, ll. 34-41 of S.B. 416 and asked for clarification. Senator James advised the provision is the concern in the two aspects of the truth in sentencing bill: (1) no parole eligibility until the minimum term is served, (2) sentence reducing credits can only reduce the maximum term. Senator James stated the amount of credits accumulated against the sentences does not have an effect on the parole decision. The forty percent rule ensures that the sentences are not flattened out. Mr. Carpenter asked Senator James if the judge has the discretion to use the forty percent rule or the minimum established by statute. Senator James advised under category A where the minimum is established by statute, there is no forty percent rule. Mr. Goldwater expressed pragmatic concerns similar to Ms. Buckley and Mr. Anderson. Mr. Goldwater stressed because the current system needs improvement, a strong look is warranted at where resources are being dedicated and is it enough to ensure safety of prison personnel. Senator James appreciated those concerns and tried to take them into account. Senator James offered the statistics of a paroled felon who is committing violent crimes costs as much as $430,000 in costs to society. When it is traded against the $15,000 per year to keep the felon in prison, it is put into perspective. Senator James said there is no way to calculate the costs for the loss to victims. In conference with Department of Prisons and Parole and Probation Department Mr. Sandoval asked Senator James to discuss the concerns and how they were alleviated. Senator James advised when the bill was developed, full knowledge of effects in every aspect were considered. At first Senator James advised they tried to develop a plan for dealing with fiscal concerns. Funds were located to extend the contract with National Council on Crime and Delinquency (NCCD) to analyze and travel to Nevada to develop a special computer program for a fiscal analysis of this bill. Mr. Manendo recalled the prison tour of the southern Nevada correctional facility where 10-12 guards were on duty. Mr. Manendo went back to the facility over the weekend on an individual tour and learned guards were recruited for a good showing during the legislators' tour. Eventually, inmates with addiction problems will be removed from prison for more room for the hard-core violent inmates. Mr. Manendo was concerned with the 220:1 ratio and personnel safety, as the southern Nevada correction facility experienced problems and were locked down several times recently. Ms. Stroth commented about keeping prisoners incarcerated longer, as it cost society 17% more when a serious offender is released and recommits a crime. Ms. Stroth stated it will take a significant period of time to change the percentages to have a larger percentage of maximum security based upon the ratio of minimum security. Ms. Stroth asked how long until the prison guard ratios needed to be changed. Senator James advised he has those percentages and will provide it later. Mr. Anderson advised it was in the packet of material Senator James already provided from the National Council on Crime and Delinquency (NCCD). It is not until 1997 before a measurable change will be noticed, reaching a maximum in type B offenses until 2001. Senator James concurred and will meet with Ms. Stroth. The current custody distribution: Minimum Medium Maximum Males 22% 57% 21% Females 53% 31% 16% Governor's bill: Males 21% 58% 21% Females 50% 30% 17% Senator James advised the projections indicate those numbers will move up by a percentage point or two in the medium and maximum. It progresses like that until it levels off and later on NCCD said those numbers will harden or fix. Then you will have a greater percentage of people in medium security and somewhat greater in maximum security level. Mr. Ben Graham of the Clark County District Attorney's Office testified on behalf of that office and other sixteen elected district attorneys to offer their support to S.B. 416 and to understand it together. Mr. Graham remarked he is more excited about it than comfortable with it because once it becomes law, it will be an educational process for parole and probation, prosecutors, and defense attorneys impacted by this bill. Mr. Graham noted one of the main comments he has heard is it is not totally understood. It can improve the system much better than anything now in effect. Mr. Graham addressed several security concerns raised. Mr. Graham advised the prison population will harden gradually. There will be a lessening of costs at the bottom end. Because of the increased prison population, a dollar increase will not be realized but can be identified on a percentage basis. Mr. Graham referenced A.B. 317 and the sentencing commission which are important tools. Mr. Graham advised the chance of rehabilitating criminals of heinous crime is very minimal. Realistically, to benefit society and keep criminals off the street as long as possible and hopefully do some rehabilitation. On the lower end of the spectrum in the D and E categories, Mr. Graham advised a lot were the younger offenders who may be rehabilitated in treatment programs. Mr. Graham utilized (Exhibit C) of May 17, 1995, minutes as a matrix of S.B. 416. Mr. Carpenter pointed out life sentence with a five years minimum or 15 years with five years minimum for parole, asked if the judge has the discretion to use the forty percent of 15 years which is six years plus add one year if the judge desires. Mr. Graham believed he could. Mr. Carpenter commented it needs to be clarified if this is possible. Mr. Goldwater asked for those crimes where prison is a deterrent are the sentences reduced and is it thrown off balance. Mr. Graham responded once a month he talks to groups being released from prison at Jean and Indian Springs. Prison releasees have advised Mr. Graham they are leaving Nevada once released. Mr. Graham was delighted this session has been able to reform the judicial system. Mr. Anderson expressed surety concerns in Section 204, p. 83, l. 14-16. Mr. Graham noted bondsmen will insure anything if there is adequate security. Mr. Anderson asked in a normal course of action if it would make the bondsman the collection agency for state funds. Mr. Graham could not think of an incident where it was done. There is a forfeiture procedure for failure to appear and escape by the district attorney. Mr. Graham advised the surety issue has been a concern of the public defender and others. Because a personal surety would be adequate, Mr. Graham stated no one because of impecuniosity is precluded from participating in alternate programs. In reference to p. 80, categories C-E Mr. Anderson stated one may not have the ability to meet the criteria of the surety bond and he would like to make sure one is not precluded. Mr. Graham advised parole and probation is already operating in this manner. Mr. Graham explained it is another tool the court can utilize in getting a person to abide by the rules and conditions of their probation. Mr. Anderson asked if Mr. Graham actually believed the defendants would get unbiased treatment under this bill. Mr. Graham advised the person with more resources may end up getting a more difficult task than a person without the resources. Mr. Graham reasoned it was inclusive rather than exclusive treatment. Previously, if a person was eligible for probation from parole and probation, Ms. Buckley stated now a court may order instead of the regular terms of probation this new remedy. If the court chooses the new remedy, it is then exclusive for this probationer. If they cannot obtain a surety, a person who is previously eligible for probation would now not be eligible. Ms. Buckley does not see it as an additional tool; but, an exclusive means of denying a poor person probation. Mr. Graham advised he is of the opinion it is not necessarily exclusive. If it could be used as exclusive, Mr. Graham said it is not the intent. Mr. Carpenter remarked he read it as not being exclusive. He read it in the context it would free up public resources for the people who cannot afford the surety bond. Mr. Carpenter stressed a need to make sure it addresses the intent of the bill. Presiding Chairman Sandoval commented there was no repeal under present parole and probation laws and would more than likely be constitutional because of indigence. Mr. Graham visualized someone getting probation where he may have resources available who may not receive probation under the current system. Ms. Buckley suggested adding the phrase, "whenever a non-indigent person has been found guilty of. . ." Mr. Graham stated he did not know if it would interfere with the intent. In regard to modification of a sentence on p. 87, ll. 44-47, Mr. Graham illustrated a probationer may violate his probation with an infraction and receive another ten years. Realistically, it would not be appropriate, and Mr. Graham advised in the interest of justice it would be a good tool and not be abused. Mr. Graham referred to p. 2 of the matrix provided as (Exhibit C) of May 17, 1995, minutes and advised there are several formulas placed in the habitual criminal statute. The most significant is the more violent prior felonies in injury to persons, there is a more severe habitual criminal statute with mandatory filing by the district attorney. Mr. Graham advised the less violent offenders have remained the same; again, the effort is to get the violent offender off the street. Mr. Graham stated this provision sets some minimums which must be served for the violent type criminal. Sale of controlled substances to a minor Mr. Graham advised are severely punished. Trafficking in narcotics on a larger scale Mr. Graham advised is life to ten years minimum and are severe sentences. Mr. Graham stated it was an area of concern for some as it looked like in some areas the penalty was being lowered for trafficking in narcotics. Mr. Graham advised the amount one has to possess in most narcotics is fairly small for trafficking offense. Mr. Graham illustrated with one packet of Equal as equivalent to one gram. Twenty-seven grams equals one ounce. In reference to category B which are more severe offenses of attempted murder, conspiracy to commit murder, robbery, rape, mayhem, placing a child in scalding water, battery with intent to commit rape, murder, Mr. Graham noted the minimum sentences. Mr. Graham referred to pp. 4 and 5 of the matrix provided as (Exhibit C) of May 17, 1995, minutes and reviewed assault with deadly weapon, battery on all types of persons including school employees, stalking, spreading HIV, drive by shooting offenses, with reduction of the top end and increase of the bottom end of the sentence. Mr. Carpenter referred to p. 3 and asked if the forty percent rule could be utilized in NRS 200.380. Mr. Graham referred to p. 1 of S.B. 416, term of imprisonment, minimum term and maximum term must be within the limits prescribed. The minimum term that must be imposed must not exceed forty percent of the maximum imposed. Mr. Graham asked the research analyst if he had reviewed this. Mr. Neilander advised his understanding is within the statutory range, for example, robbery 2-15 years, the judge has to determine the maximum length. Mr. Neilander stated the judge must pick a minimum and maximum length of time within that range. Once the judge picks a maximum, the minimum chosen must not exceed forty percent of the maximum. When the judge determines a sentence, Mr. Neilander informed he has to look at the top end in order to come up with the bottom end. Chairman Humke announced a break at 10 a.m. Chairman Humke declared the committee was continuing as a subcommittee at 10:25 a.m. with five members present. Mr. Graham reviewed more categories of the crimes, drive by shootings, ex-felon in possession of a firearm, arson, burglary, burglary with a weapon, on pp. 5 and 6 of the matrix provided as (Exhibit C) of May 17, 1995, minutes. Mr. Graham advised restitution was added as an option and can be mandated. In larceny crimes the sentence has not been increased. Chairman Humke declared a quorum was present at 10:27 a.m. BILL INTRODUCTION: ASSEMBLYMAN ANDERSON MOVED FOR BILL INTRODUCTION OF BDR 9-2084. ASSEMBLYMAN BATTEN SECONDED THE MOTION. THE MOTION PASSED. (ASSEMBLYMEN MANENDO, GOLDWATER, PERKINS AND MONAGHAN WERE NOT PRESENT.) ASSEMBLYMAN ANDERSON MOVED TO REFER TO FLOOR WITHOUT RECOMMENDATION OF A.B. 612. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION PASSED. (ASSEMBLYMEN GOLDWATER, PERKINS AND MONAGHAN WERE NOT PRESENT.) On p. 6 Mr. Carpenter requested clarification of molestation of a minor. Mr. Graham responded he has seen it used as a "catch all" for situations that do not arise to open and gross lewdness or attempted sexual assault. It is not normally charged as a primary offense. In regard to category A Mr. Sandoval questioned the reason for a life sentence with a five-year minimum. Mr. Graham replied it is a potential life imprisonment, but there are the options of the numbers being crunched where one could get out in five years. If it is not, then one has a potential for being in prison for life. Ms. Steel asked if it was because the sentence proposed is life, but the judge does not have to impose the entire sentence. Ms. Steel surmised the judge could propose 20 years but in no way less than five years. Mr. Graham advised it would depend on each specific offense. The material included a handout entitled, "Comparison current sentencing practices, truth-in-sentencing." On p. 4 Mr. Graham advised it addresses 1-10 years sentence dealing with the forty percent aspect. Mr. Graham informed the judge does not have to give the forty percent, he can give 1-10 years or 1-4 years. The minimum time to be served can be the forty percent which can be 4-10 years. The offender would spend 4 years before he would become eligible for release. Ms. Buckley requested research staff to comment. Ms. Buckley said the judge determines the maximum and automatically assigns a minimum based upon the forty percent. Mr. Graham advised that was not accurate. Mr. Graham stated if the judge sentenced the offender 1-10 years, the minimum eligibility is 1 year. The offender would be able to expire his sentence completely in 6 years. Mr. Neilander advised the judge has to pick two numbers within that range, a maximum and a minimum. If the judge decides to pick the maximum which is 10 years, then the minimum cannot exceed forty percent of 10 years. Mr. Neilander informed it would give these options: If judge picks 10 years as the top, he can then pick 1-10, 2-10, 3-10, 4-10 years, but not 5-10 years because if he picked 5-10 years, mathematically there is a possibility the two will clash and the inmate could flatten out their time before they came before the parole board. Mr. Neilander pointed out this was the whole reason for the forty percent. BILL INTRODUCTION: ASSEMBLYMAN ANDERSON MOVED FOR BILL INTRODUCTION OF BDR 2-2018. ASSEMBLYMAN BUCKLEY SECONDED THE MOTION. THE MOTION PASSED. Mr. Graham referred to p. 6 of the matrix provided as (Exhibit C) of May 17, 1995, minutes and advised of significant adjustment of habitual criminal mainly to incarcerate the violent criminal longer. On p. 7 in reference to trafficking of controlled substances Mr. Graham advised the more serious quantity violators are going to spend more time in prison and those with lesser quantities may not be spending less, but the sentencing structure is realistic along the lines with what they are receiving now. On p. 8 in reference to the last of the category B crimes, the reckless, Mr. Graham informed willful conduct remains at 1-6 years; DUI with substantial bodily harm or death, a minimum of 2-20 years. Mr. Anderson commented the prison system had problems in the past where parole and probation take someone who is out and put them back into the local facility, raising the jail population until a determination is made to return to prison or release on probation. Mr. Anderson noted the bail bondsman is at risk. Mr. Anderson surmised a class D-E felon would return to court and ask for a new bond because he has broken a condition of probation. Mr. Graham advised this is an area that will have to be developed. Mr. Graham sees this as another method of assisting people to comply with parole and probation rules. Mr. Graham stated ultimately this may lead to an area where a private entity helps the people successfully complete their probation. Mr. Anderson remarked it continues to cause an uneasiness about the surety concerns. On pp. 9 and 10, category C felonies, Mr. Graham advised of limited prosecution in these situations. Chairman Humke asked if the maximum sentences are reduced because they are seldom used. Mr. Graham concurred and stated realistically the penalties have been within 1-5 years. Mr. Graham stated they are a nonviolent offense. From a deterrent standpoint the sentence is adequate. From a penalty standpoint it is well within what is being done now. Chairman Humke asked if they were all white collar crimes. Mr. Graham concurred. Chairman Humke called attention to the treason provision as seldom seen. Mr. Carpenter did not agree with reducing the penalty for statutory seduction and asked if it could be inserted under category B. Mr. Graham explained the maximum sentences on these cases have been below what the provision would be with regard to 1-5 years. Chairman Humke asked if it commonly known as statutory rape and as practical matter, how frequently is this statute used for enforcement. Mr. Graham advised the most frequent situation applied to both genders is where a young lady who had not reached the age of consent and close in age to the perpetrator, the less the penalty is. Mr. Graham advised the statute for statutory sexual seduction is seldom used. Generally, if it is used it is in a relationship between a young man and girl. Problem of proof, the victim must be willing to testify and the family willing to let the victim go through the court proceedings. Under the circumstances that normally arise, Mr. Graham commented the reviewers felt it was adequate punishment. Below the age of 14, it is a more serious crime. Mr. Anderson inquired if this was similar to a bill draft in 1991 relatively new at the time in response to a Supreme Court decision. Mr. Graham advised it may have been revised then. Mr. Graham informed from a prosecutorial standpoint this statute is not utilized often. Mr. Manendo recalled the statute regarding victimization of a senior citizen where the sentence would be doubled and asked about the relationship to S.B. 416. Mr. Graham informed the enhancement penalties for weapons and victimization have not been altered and come into play. Mr. Manendo asked if it was 1-10 years, then it would be 1-20 years or is the minimum doubled. Mr. Graham commented it would be depending on the individual statute; and, the offender goes to prison and the sentence is doubled. Mr. Graham assured it is not altered by S.B. 416. On p. 3 (Exhibit C) of May 17, 1995, minutes as a matrix of S.B. 416, Mr. Carpenter requested clarification of categories E's receiving probation instead of imprisonment; and, if remanded to the county jail offender is not eligible for probation. Mr. Graham advised probation is not precluded and only deals with felonies and attempts. On p. 23 Mr. Carpenter pointed out where one automatically receives probation; and, he was concerned with p. 3, where conviction of a gross misdemeanor may be imprisoned in the county jail. Chairman Humke clarified Mr. Carpenter referenced the shaded area of p. 23 of (Exhibit C) of May 17, 1995, minutes as a matrix of S.B. 416. Mr. Carpenter requested this area be researched. Chairman Humke advised the court could suspend the sentence and the one year county jail term could be suspended; however, it is necessary to have the hammer in the event of a violation. Mr. Carpenter asked why fill up the county jails if our objective is to reduce prison sentences. Mr. Graham verified that they did not deal with gross misdemeanors or misdemeanors in this case. Mr. Graham stated under certain circumstances one could be sentenced to the county jail; where if it were a felony it would be a probational situation automatically. Chairman Humke requested Mr. Graham to be a resource person during Monday's work session on May 22, 1995. Mr. Anderson reminded the committee of the full schedule next week and the effort to deal with the bills quickly and judiciously as possible. There being no further business to come before the committee, Chairman Humke adjourned the meeting at 11:02 a.m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman David E. Humke, Chairman Assemblyman Bernie Anderson, Chairman Assembly Committee on Judiciary May 19, 1995 Page