MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session January 17, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:40 a.m., on Tuesday, January 17, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator John B. (Jack) Regan STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Maddie Fischer, Primary Secretary Marilyn Hofmann, Committee Secretary Lori M. Story, Committee Secretary OTHERS PRESENT: Ben Graham, Legislative Representative, Nevada District Attorney's Association James, J. Jackson, Nevada State Public Defender Patricia Justice, Legislative Representative, Clark County The secretary called the roll and all committee members were present. The Chairman introduced the committee members. Senator James stated that the first order of business would be the adoption of the Standing Committee Rules (Exhibit C). He noted two changes to the rules: (1) rule 12 was enhanced to state "If the Committee member intends to change his or her vote and/or advocate an opposite position, the Committee member must advise the Chairman beforehand" and, (2) rule 13 was added which outlined deadlines for bill draft request submission to the committee and for sending bills to the Senate. This change, the Chairman noted, was to facilitate a timely end to committee activity. SENATOR McGINNISS MOVED TO ADOPT THE COMMITTEE RULES. SENATOR REGAN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** Senator James next covered organizational and housekeeping issues, including the anticipated meeting schedule for the committee. The Chairman pointed out that the judiciary committee would most likely be handling more bills than any other and would be very busy. Additionally, he noted that the issues to be addressed would be very important and controversial. He stated it was his intention to fully utilize the meeting time available. Senator James stated that at the outset Fridays would be meeting days set aside for work sessions. He said it was his intention to list bills to be considered during the work sessions to allow interested parties to be present. After introducing the staff members that would be working with the committee, the Chairman moved on to address the area of subcommittees. Stating that he would periodically appoint subcommittees, he referred to his past practice of using subcommittees to "delve into a particular piece of legislation" that requires more in-depth study than can be accomplished within the "time frame of this committee." Senator James commended Senators Adler and McGinniss for their effective assistance in this concern during the previous session and noted that other committee members would be asked to participate in this capacity as well. Senator James addressed the area of amendments to bills that go to the Senate and are returned for further committee review. He stated he would attempt to allow time for committee members to review these amendments to ensure the intent of the committee is retained in the wording. The Chairman also stated he would rely on committee members to handle second readings of bills on the Senate floor. The Chairman addressed the need for and availability of floor statements which will be prepared by Allison Combs, the research analyst, for use when presenting bills in the Senate. Next, Senator James turned to the legislative adjournment in February, stating the committee is scheduled to meet in Las Vegas during the adjournment, with daily hearings on some of the criminal justice bills and other issues. He also noted that, as in the past, actions taken in Las Vegas would be ratified upon return to the capital. By presenting an extensive, but in no way complete, list of the various issues facing legislation in the criminal justice arena, Senator James moved next to discuss his plan to avoid piecemeal legislation by spending some time at the beginning of the committee's schedule learning more about the criminal justice system from experts. He hoped to use these experts further to explain how the proposed reforms would work and how they would impact the system, both fiscally and when considering public safety. He announced the first such expert presentation would be at the beginning of the next week's hearings. . Senator James stated that these meetings would be required attendance for committee members as their subject matter is integral to the activities facing the committee during this session. Underlining his desire to use a comprehensive approach, Senator James predicted a coordinated effort between the Senate and Assembly Committees on Judiciary in order to divide responsibility for major reforms to be proposed in the committees. Continuing, Senator James stated his hope for creating one or more "omnibus criminal justice reform package deals." The next order of business addressed by the Chairman was to call for a vote on committee introductions of Bill Draft Requests (BDRs). Senator James commented that he felt there was need, in his opinion, for some change in the pre-filing process because of the incongruent fashion that bills are being introduced. BILL DRAFT REQUEST 12-1289: Makes changes concerning sureties who provide security for executors and administrators of estates. Senator James stated that this request was brought to him by Judge Thompson who was formerly a probate judge in Clark County. SENATOR TITUS MOVED TO ADOPT BDR 12-1289 FOR COMMITTEE INTRODUCTION. SENATOR REGAN SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** BILL DRAFT REQUEST 12-1290: Revise procedure for determining fees to be paid to attorney for executor or administrator of estate. This request was also made by Judge Thompson. SENATOR WASHINGTON MOVED TO ADOPT BDR 12-1290 FOR COMMITTEE INTRODUCTION. SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** Senator James expressed his regret about putting BDRs on the agenda because of the resultant difficulties experienced by the front desk personnel. He felt this was necessary, however, in order to expedite the work of the committee. He stated that the BDRs presented today would be rescheduled after they had been assigned a bill number. SENATE BILL (S.B) 41: Revises provisions relating to disposition of confiscated weapons by law enforcement agencies. Chairman James noted he served on an interim study committee on criminal justice, chaired by Senator Adler, which delved into various issues and resulted in 14 BDRs, most of which had been referred to the Senate Committee on Judiciary for work. This interim committee, the Chairman noted, drafted an extensive report entitled Criminal Justice System in Nevada. (Exhibit D. Original is on file in the Research Library.) He then turned the floor to Senator Adler who presented information about S.B. 41. ASSEMBLY CONCURRENT RESOLUTION (A.C.R.) 76 of the 67th Session: Dir ect s Le gisl ati ve Co m mi ssi on to co nd uct int eri m stu dy of cri mi nal jus tic e sys te m. Senator Ernie Adler addressed the committee. He summarized what the A.C.R. 76 of the 67th Session committee considered including bail reforms, cultural awareness training for peace officers, habitual criminal sentencing, truth in sentencing, weapons confiscation, and others. Senator Adler provided a statistical overview of the depth of the problems for the criminal justice system. When addressing this bill, S.B. 41, Senator Adler stated the Nevada Division of Investigation, Metro Police, and others that felt Nevada Revised Statutes (NRS) 202.340 was antiquated in its dealing with disposition of confiscated weapons in that it required public auction of such weapons and this effectively released them back to those from whom the weapons had been confiscated. The amendments to NRS 202.340 suggested by this bill, according to the senator, removes the public auction requirement and allows for a law enforcement officer to destroy confiscated weapons. While Senator Adler expressed some confusion about the wording of the amendment, he agreed that this confusion could be resolved by staff. Senator Adler continued by explaining that some law enforcement agencies also wanted to remove a part of section (2)(b) in NRS 202.340 that require the weapons be sold to another law enforcement agency "at a price not less than the prevailing market value" so they will be permitted to sell them at less than market value. Senator Adler opined that this seemed logical and in line with the removal of the auction requirement. He then concluded by offering to answer questions from the committee. Senator McGinniss queried as to whether this would totally remove the public auction option. In response, Senator Adler explained that there were other avenues for sale of the weapons to other law enforcement agencies. Senator McGinniss questioned further about weapons that may not be useful to law enforcement agencies or weapons that such agencies might not want, and asked whether it might be useful to leave the auction option in, though not as mandatory. He explained he was thinking of hunting weapons like shotguns and his fear was that such weapons, if not useful to law enforcement would be destroyed. Senator Adler stated that he felt that this would be the effect, but explained that most of the weapons referred to in the statute were not even useful for target practice. Senator McGinniss persisted. He questioned whether this applied to the Division of Wildlife and any weapons that they might confiscate. He felt that the public auction option should, perhaps, be retained. Senator Adler opined that he did not believe this bill covered wildlife agencies, but law enforcement agencies. Senator Titus stated that she felt that the current reading of the law made public auction an option and the the purpose of this bill was to remove the option. Senator Adler explained that currently there were two options, sell the weapons to another law enforcement agency or offer them at public auction. He expressed his opinion that If the weapons are not sold to another agency they must be sold at auction and could not be destroyed because there is no "destroy language" in the statute. Senator Porter wondered if there was a problem with having a public auction. And Senator Adler responded that the Las Vegas Metro Police Department intentionally avoided having such auctions by classifying all weapons under section (5)(a) of the statute, as dangerous to the public. Senator Adler reiterated that the larger metropolitan agencies felt uncomfortable selling the weapons at auction. Senator Porter pointed out that other law enforcement agencies might want to purchase the weapons, but not at prevailing market value. Senator Adler affirmed this point and stated that he felt the "prevailing market value language should be taken out...." At this point Senator Regan offered Senator McGinniss a statutory explanation excluding hunting weapons from the dangerous weapons definition. Under NRS 202.350, Senator Regan pointed out, hunting weapons were not held to be dangerous. Senator Adler agreed, and expressed his assurances that it did not apply to Division of Wildlife weapons. This concluded the presentation by Senator Adler. The Chairman called for proponents or opponents to S.B. 41 to speak. None appeared. Senator James scheduled the bill for the work session on Friday, January 20, 1995. He closed the hearing on the bill. BILL DRAFT REQUEST 15-544: Expands aggravated circumstances under which death penalty may be imposed for murder. Senator James opened the hearing on BDR 15-544 which he stated would be introduced on the Senate floor that afternoon and would at that time receive a Senate Bill number. The Chairman stated he was the sponsor of this bill and wished to introduce the bill personally. Senator James explained the bill was an amendment to NRS 200.033 which is a list of aggravating circumstances for first degree murder under which the death penalty could be imposed. The senator referred to the case of Furman v. Georgia, from the 1970s, which challenged the fair application of the death penalty, claiming it was arbitrarily imposed against minorities. He continued his explanation, stating the result of this case was the need for states to outline certain, specific aggravating circumstances under which the death penalty could be imposed. This bill, the senator stated, would add the aggravated circumstance of "murder committed upon a person less than 18 years of age," and would cover the murder of a child as a result of child abuse, or when one of the other aggravating circumstances on the list does not apply and the victim was a child. He then turned the floor to Ben Graham, Legislative Representative of the Nevada District Attorney's Association. Mr. Graham again explained the origins of the statute being amended. He also proffered history and some explanation of the process for prosecuting first degree murder, along with the evolution of NRS 200.033 and its list of aggravating circumstances. He cited NRS 200.035 (Exhibit E) which lists mitigating circumstances, in order to point out the defense's opportunity to escape the aggravating circumstances and the death sentence. Mr. Graham told of the case of Willie Blockson, a man who killed a sleeping12 year-old boy. Blockson escaped the death penalty because there no circumstances that fit the list in NRS 200.033. Mr. Graham offered to answer questions. Senator Titus asked Mr. Graham if NRS 200.033(8) did not address the child abuse concern. Mr. Graham answered that he felt depravity of mind was a very difficult thing to prove and might result in constitutional challenges. Senator Titus continued by questioning whether senior citizens and handicapped individuals be included since the amendment was an attempt to protect defenseless persons. Mr. Graham stated that the district attorney's office had, indeed, requested a bill draft which would include victims over the age of 70, but it had not considered handicapped persons or others. Senator James interjected the courts were prone to narrowly interpret the aggravating circumstances. The Chairman offered the example of prior murders being an aggravating circumstance. The senator told of the case where a man went through a house and killed first one person in one room and then another person in another room, and the courts found that these killings were not prior murders and they were, therefore, not aggravating acts. This, Senator James felt, was a very narrow interpretation. The immediate bill is a means to avoid such interpretation, explained the Chairman. Senator James agreed that including senior citizens and handicapped persons would be a positive step, but that this bill was of personal interest to him and to individuals who had approached him on the subject, and he wished it to be heard as written. Senator Regan made inquiry about the fiscal impact. Mr. Graham claimed that there would be no fiscal impact upon local government and that there might be some insignificant cost as a result of a death penalty hearing. Senator Regan next asked whether this amendment would be used against the "punks" in the drive-by shootings. Graham expressed his view that, while these crimes are somewhat random, there might be consideration of them as an additional aggravator. At this point, Senator James explained the bill further in regard to the age of 18 as opposed to 14. The senator felt that by extending the age to 18 it included all school-aged children and would offer additional deterrence. Mr. Graham felt it necessary to expand his response about additional aggravators. He noted that when one aggravator was removed, the next would be offered in order to achieve the death penalty. Mr. Graham's testimony was then ended. The Chairman called for further testimony in support. No one stepped forward. Next was a call for opponents. Mr. James Jackson, a Nevada State Public Defender, took the stand. Mr. Jackson stated his opposition rested on the claim of no fiscal impact. Mr. Jackson pointed out that with the presence of any aggravators, the defense incurred "a high degree of accountability and incumbency" to explore all avenues of mitigation. He made the point that any aggravator removed a case from that of a simple murder case to that of death penalty case with its attendant work and cost increases. Mr. Jackson also opposes this amendment, he stated, because he considers it to be overbroad. He submitted that allowing additional aggravators moved murder cases back to the times of arbitrary and overbroad application with the attendant uncertainty as to what really fits the death penalty requirements. Quoting statistics received from Michael Machetta of the Death Penalty Resource Center of Nevada, Mr. Jackson stated that over 80 percent of the first degree murder cases filed in Nevada had aggravators indicated. He expects that the addition of new aggravators would only increase that percentage, thus impacting costs. Next, Mr. Jackson pointed out that consistency across criminal statutes should lead to the amendment reading 14 years of age, not 18. Senator James addressed questions to Mr. Jackson. The Chairman inquired as to the possible unconstitutionality of a child victim aggravator. Mr. Jackson said he had found no other state with such an aggravator and based upon that, he would respond "in the short term, no, it would not be unconstitutional." Senator James reiterated that it was impossible to rely on depravity of mind as the aggravator and that by clearly stating that killing a child is sufficient as an aggravator, you removed that uncertainty. Mr. Jackson agreed with the correctness of Senator James' statement. Finally Senator James asked Mr. Jackson if he had a fundamental policy objection to giving the death penalty to people who kill children. Mr. Jackson explained that he was only concerned with the fiscal and constitutional aspects of the proposed amendment. Senator Adler asked Mr. Graham if he was aware of any states that had a similar aggravator as the one proposed, and Mr. Graham stated that his recollection was that there was another state which did, but that he did not have the information with him. Senator Adler asked him to provide the committee with that information. Senator Adler then queried the aspect of intent in cases of random killings or when the age of the victim was not obvious. Mr. Graham stated he did not read the amendment to require intent and Senator Adler expressed his concern about the constitutionality of the bill. Senator James offered the example of killing a plainclothes police officer, and brought out that the penalty phase of the trial does not consider mens rea, or state of mind, but rather the circumstances surrounding the crime. Senator Adler disagreed. Mr. Jackson spoke next. He felt that Senator Adler raised a good point and he offered an example where he defended a man accused of killing a police officer which involved aggravator number seven on the list (NRS 200.033(7)). He explained that this aggravator requires the defendant knew or should have known the victim was a peace officer. Further, at the inquiry of Senator Adler, Mr. Jackson affirmed that he felt the bill should provide clear wording to avoid constitutional attacks and over-breadth. Senator Titus asked about the prevelance of crimes such as those covered by the bill. Mr. Graham stated that he did not believe it was a "big" problem, and that while he had stated there would be no fiscal impact, what he really should have said was there would be little fiscal impact. The next witness to speak in opposition to the bill was Patricia Justice, representing Clark County. She stated that she had received some figures from Clark County's financial officers which revealed that in one case alone, without defense costs included, the cost was $100,000 for prosecution and court costs. Senator James requested that Ms. Justice provide more thorough figures to the committee. He also asked for the figures from the previous sessions work on a similar bill. Ms. Justice also reported that the head of the Public Defenders Death Penalty Resource team had indicated a concern about equal protection or Fourteenth Amendment due process problems with the bill. Senator James requested further information in this regard. There was no further testimony and the hearing was closed. The committee meeting was adjourned by the Chairman at 10:00 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary January 17, 1995 Page