MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session February 7, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:30 p.m., on Tuesday, February 7, 1995, in Room 1006 of the Grant Sawyer State Office Building, Las Vegas, 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 O.C. Lee COMMITTEE MEMBERS ABSENT: Senator Dina Titus STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Dennis Neilander, Senior Research Analyst Lori Story, Committee Secretary OTHERS PRESENT: Eva M. Collenberger, Executive Director, Families of Murder Victims, Las Vegas, Nevada George Glanville, President, Families of Murder Victims, Las Vegas, Nevada Bill Iverson, Families of Murder Victims Las Vegas, Nevada Charles Collenberger, Families of Murder Victims, Las Vegas, Nevada Timothy R. O'Brien, Deputy District Attorney, Juvenile Division, Office of the Clark County District Attorney, Las Vegas, Nevada Lieutenant William H. Cavagnaro, Legislative Liaison, Las Vegas Metropolitan Police Department (METRO) Lieutenant Terry Lesney, Las Vegas Metropolitan Police Department (METRO) Susan D. Roske, Deputy Public Defender, Office of the Clark County Public Defender David Bash, III, Chief, Youth Parole Bureau, State of Nevada Division of Child and Family Services Bruce Alder, State of Nevada Division of Child and Family Services David F. Sarnowski, Chief Criminal Deputy Attorney General, State of Nevada, Office of the Attorney General James J. Jackson, Nevada State Public Defender Ben Graham, Chief Deputy District Attorney, Office of the Clark County District Attorney Lieutenant Lawrence Spinosa, Detective Bureau, Las Vegas Metropolitan Police Department, (METRO) Sergeant Russell J. Shoemaker, Sexual Assault Unit, Las Vegas Metropolitan Police Department (METRO) SENATE BILL 42: Makes various changes related to possession of firearms by minors. SENATE BILL 140: Requires juvenile charged with felony involving use of firearm be prosecuted as adult. Senator James opened the hearing on Senate Bill (S.B.) 42 indicating the bill was the result of an interim study committee on criminal justice, which was chaired by Senator Adler. He stated an amendment to the bill had been prepared; said amendment is attached hereto as Exhibit C. Senator Ernest Adler and Dennis Neilander, Senior Research Analyst, appeared before the committee. Mr. Neilander provided the committee with a handout, set forth herein as Exhibit D. He pointed out the last three pages of Exhibit D, which contained the recommendation of the subcommittee regarding possession of firearms by minors. Mr. Neilander referred to the statistics contained in the report regarding the increase in crimes committed by juveniles, particularly with handguns and other firearms. He directed the committee's attention to the prepared amendment (Exhibit C), which pertains to juveniles between the ages of 14 and 18 years and what activities they may engage in when accompanied by an adult. Mr. Neilander indicated the remainder of Exhibit D was entitled, "Possession of Firearms by Minors in Florida," dated December 6, 1993. He said the law enacted in Florida was used conceptually in drafting S.B. 42. Mr. Neilander reviewed the provisions of the Florida law for the committee members. Mr. Neilander advised the committee that at this time in Nevada, "...possession of a nonconcealable firearm is not a criminal activity." Therefore, he stated, a juvenile could have a shotgun in the back window of their vehicle, and it would not be a criminal activity. Mr. Neilander indicated S.B. 42 prohibits possession of a firearm under certain circumstances. He also said the penalties provided in the bill "track the Florida law" and include penalties against a parent for unlawful use of a firearm by a minor, community service and revocation or delay of issuance of a driver's license. Mr. Neilander stated the "Florida approach" called for mandatory juvenile detention and mandatory custody under certain circumstances. He said testimony before the subcommittee indicated Nevada is currently lacking in the number of housing facilities available for juveniles who have been adjudicated and are in custody. Mr. Neilander said one provision copied from the Florida statute is a segment which addresses habitual juvenile offenders, allowing them to be certified as adults if they commit certain crimes involving firearms. Senator McGinness asked Mr. Neilander for a definition of "firearm." Mr. Neilander answered the definition was written in terms of the caliber of a weapon and whether or not it was a "single shot" weapon. He indicated to Senator McGinness that he would provide a complete definition to him. Mr. Neilander stated the intent of the subcommittee was not to include BB guns, but indicated the wording could be construed to include that type of weapon. Senator Adler indicated the bill could include "high-powered air pellet guns." Senator Adler reviewed the provisions of S.B. 42, beginning with section 1. He said currently the law provides that any individual over the age of 14 years may possess a firearm, "anywhere within the State of Nevada." Senator Adler indicated section 1 has been changed by amendment (Exhibit C) to provide that "a minor between the ages of 14 and 17 shall not handle or have in his possession...any firearm unless he is engaged in hunting or target practice." He said he did not believe this would be a "restrictive standard" imposed against rural teenagers. Senator Adler referenced section 2 of the bill, which deals with selling a firearm, and indicated there was a gap in Nevada law. He said a licensed gun dealer may not sell to a minor, but there was no law covering an unlicensed person who does the same. Senator Adler referred to section 4 of the bill, describing it as the "enhanced penalty section" of the bill. He said the penalties include a requirement to perform community service and a driver's license suspension. Senator Adler stated section 6 was also an enhancement section, which provides that a juvenile may be certified as an adult under certain circumstances, and is more strict than the previous statutes. He said this section also provides that a parent may be ordered to attend classes in parenting skills "...if the child is running wild." Senator James stated there were a number of representatives of Families of Murder Victims who wished to testify. The first to speak was Eva Collenberger, Executive Director, Families of Murder Victims. Ms. Collenberger spoke in favor of S.B. 42 from a prepared statement, which is attached hereto as Exhibit E. The next to speak to the committee was George Glanville, President, Families of Murder Victims. He said all members of the organization were "emphatically in favor" of the legislation. Mr. Glanville cited several cases of gunshot murder victims in Las Vegas who had been killed by juveniles. He said he was disturbed over the provision allowing guns for juveniles for target practice and hunting. Mr. Glanville stated, "Here in Las Vegas...what targets are they going to shoot at?" Senator Washington asked if there were statistics as to where juveniles obtain guns. Mr. Glanville answered he had no statistics in that regard, and suggested the Las Vegas Metropolitan Police Department (METRO) might be better able to answer the question. Appearing before the committee was Bill Iverson, Member, Families of Murder Victims. Mr. Iverson stated his son was murdered by gang members as he walked in his own neighborhood. He said his son was not a member of a gang. Mr. Iverson indicated his son had earlier been worried because of the guns present at his school. Mr. Iverson said the problem "...is completely out-of-hand," and that kids with guns "just don't care." He reiterated the need for control. The next to speak was Charles Collenberger, Families of Murder Victims, Las Vegas, Nevada. Mr. Collenberger stated it was not only murder victims they were concerned with, but also the fact that "handguns are the weapons of choice for teenage suicide." He also cited a case of a teenager who "accidentally" killed two different persons within a year's period of time with a handgun. Mr. Collenberger stated the problem of teenagers and guns was "overpowering." The next person to testify was Timothy O'Brien, Chief Deputy District Attorney, Juvenile Division, Office of the Clark County District Attorney. He referred to section 6 of S.B. 42, which deals with certification as an adult, and said, "If you are automatically attempting to exclude firearms offenses from juvenile court jurisdiction in Senate Bill (S.B.) 140, then 6(2)(c) [of S.B. 42] would appear to be redundant." Senator Adler responded the two bills were not consistent, but are meant to be in conflict since they are the result of different recommendations. Next to testify were Lieutenant (Lt.) William Cavagnaro, Legislative Liaison, Las Vegas Metropolitan Police Department (METRO), and Lt. Terry Lesney, Special Enforcement Detail, METRO. Lt. Lesney provided the committee members with an informational packet, which is attached hereto as Exhibit F. She reviewed the statistics contained in the packet, stating "robbery is the significant increased element in juvenile arrests over the past year." Lt. Lesney stated the robbery statistics were inclusive of use of a firearm and other deadly weapons. She said the most violent age group involved in gang membership was 16 and 17 years. Lt. Lesney indicated this age group "...is causing the most destruction in the community...drive-by shootings...robberies...carjackings, etc." She said the reason for this is the fact that the older gang members realize the younger individuals "will not see any real prison time when they commit these crimes...." Lt. Lesney stated they are also seeing an increased amount of violence within the 13- to 15-year age group. She said this age group is observing the 16- and 17-year-olds receiving large quantities of money, "...and they want to make an impact in the gang...the way to do that is to commit the most violent crimes they can." Lt. Lesney referred to drive-by shootings and indicated suspect information was rarely received. She added approximately 35 percent of the drive-by shootings where they are able to identify a suspect are being conducted by the 16- to 17-year-old group. Lt. Lesney stated the gang membership in Las Vegas appears to be going down. She said the intelligence section of METRO has established a criteria for gang membership. Senator Adler said that appeared to be inconsistent with the drive-by shooting statistics presented to the committee. Lt. Lesney stated there has been an increase in racially motivated drive-by shootings. Lt. Lesney pointed out a statistic included in the packet which tracked the record of a person now 18 years old, who had committed many crimes before he reached that age and was charged with attempted murder. Senator Adler indicated this particular person, under the provisions of S.B. 42, would have been certified as an adult "long before he got that far." Lt. Lesney agreed. She then referred to the statistical record of a 16- year-old, who has been involved in robbery, weapons possession, drive-by shootings and drug possession and sales. Lt. Lesney stated, "The Back-Street Crips use him extensively for the movement of rock cocaine, as they know juveniles are less likely to get any real judicial punishment." She added this particular juvenile "basically has no parental supervision." Lt. Lesney stated the juvenile has been involved in several shooting incidents and searches of the apartment where he resides have revealed revolvers, assault rifles, pump shotguns and ammunition. She continued, "Basically that is a history of one of the juveniles we have come in contact with...that is not an exception. Unfortunately, that is an average juvenile we are involved with." Senator Washington stated, "This leads me to believe that the punishment we are trying to inflict on those that are carrying handguns, i.e., community service or delaying or revoking their driver's license, is not a very good deterrent...." He said he believed that punishment would be a "slap on the hands" for the type of individual described by Lt. Lesney, and should be tougher. Lt. Lesney answered she believed something had to be done, but did not know if the punishment set forth in the bill would be a deterrent. She did say, however, since one large problem with juveniles was the fact they had too much time on their hands, and community service would help fill that time. Lt. Lesney also stated the juvenile would have an opportunity to become involved with other members of the community "who have some beliefs and values that the juvenile may not be receiving in the home." She did agree stiffer penalties needed to be found to deal with some of the juveniles. Senator Washington stated he dealt with "a lot of kids on the street." He said for the most part, "public service to them is a farce." The senator indicated the juveniles would serve their time and then return to their former activities. He added, "Somehow, there has to be a cycle that is broken." Senator Washington reiterated that public service and the revocation of a driver's license "...is a joke and we are cheating ourselves." Senator Adler responded that community service and driver's license revocation were not the only penalties. He said the juvenile could be certified as an adult with added penalties. Senator Washington stated his concern was with repeat offenders and suggested the bill be designed to allow to bring up prior records. Lt. Lesney agreed with Senator Washington and added, "Sometimes with the first offender...it is just the first time they have been caught." Senator Adler asked Lt. Lesney where she felt most juvenile offenders obtained firearms. Lt. Lesney answered the firearms are gained through burglaries, from "old-time" gang members, on the street and from parents. Senator Adler asked if Lt. Lesney felt if the penalty were increased to a felony for providing concealable weapons to a juvenile if it would be effective. Lt. Lesney answered it would mean tougher sentences for those who were providing the weapons, thereby removing them from the community. Senator Porter asked Lt. Lesney if she could estimate how many juveniles could be rehabilitated if the provisions of S.B. 42 were enacted. Lt. Lesney referred to the "fringe group" of gang members, whom they refer to as "wanna-bees." She stated she felt this group could be rehabilitated and deterred from further gang activity. Lt. Lesney said given the right avenues and right direction these juveniles could be swayed from being involved in violent crimes. She indicated there was also a circle of youths they refer to as an "associate circle." Lt. Lesney stated most juveniles involved in this association have not become fully involved in violent crime, but they provide vehicles, safe houses, food, and storage for weapons. She said she felt a small percentage of these individuals could be rehabilitated. Lt. Lesney stated the "center circle" of hard- core gang membership have already committed so many violent crimes that it is a way of life, which they would not choose to change. Senator Porter referred to the "wanna-be" group and the "associate circle" who may be helped, and asked Lt. Lesney what she believed were the best forms of rehabilitation. Lt. Lesney answered, To be perfectly honest, I believe it is such a deep- rooted problem in society right now that no one agency, no one agency, group, program or project is going to be able to resolve the situation. It has to start from a grass-roots effort...it has to start basically in the homes, the neighborhoods, the schools, and build from that small nucleus of a family all the way up through the community, through churches, through government...and it is going to have to be impacted by all of us at one time. This includes values, beliefs, morals, education, opportunity...somebody taking up somebody's time, so they don't have all this time on their hands...there is a range of things we have to do, because there is not one simple solution to this problem. Senator Porter responded: "We tend to expect law enforcement to have all the answers...I appreciate hearing what you're saying...that we need to get back to some of those basics we can't buy...that we need to get people involved." Senator Titus referred to Lt. Lesney's statement regarding a juvenile having "too much time on his hands," and said if a young person's driver's license was taken away, that person would not be able to get to his job, which would be "counterproductive." Lt. Lesney answered the juveniles who were "going to jobs and other activities" were not the juveniles involved in violent crime. Senator Titus asked if the violent juveniles had driver's licenses and Lt. Lesney responded a portion of them do. However, she added, most of them drive with no insurance and their licenses are revoked. Senator Titus then referred to the "wanna-be" circle, and Lt. Lesney replied most of that group are not old enough to have a driver's license. Senator Washington asked a question regarding different ethnic groups involved in gangs. Lt. Lesney indicated she did not have exact percentages at this time, but stated the largest group of gang members at this time is black, followed by Hispanic, white, and Asian. She stated she would provide exact statistical information to the committee. Senator James asked Lt. Lesney if she would testify on S.B. 140, and she indicated her testimony would be the same as for S.B. 42. Senator James indicated there were substantive differences between the two pieces of legislation, although they were "not necessarily inconsistent." He said one provides for a greater amount of automatic certification as an adult, because any crime involving the use of a firearm carries that provision, while the other bill is more discretionary. Lt. Lesney indicated METRO supports both S.B. 42 and S.B. 140. She added she was personally in support of S.B. 140 because of the stiffer penalties and the automatic certification. The next person to testify was Susan D. Roske, Deputy Public Defender, Office of the Clark County Public Defender. Ms. Roske indicated she had "very grave concerns" about the certification provisions in section 6(2)(c) of S.B. 42. She indicated the language "is not discretionary as written." Ms. Roske stated she did not agree with taking away the juvenile court judge's discretion, since it would be too harsh in some circumstances. She also pointed to the cost of the proceedings, which would involve proving of prior charges and probation reports. Ms. Roske added, "I think it is a horrible service to the community to approve this bill as written. She then referred to the mandatory language contained in S.B. 140 which deals with "all children who are charged with firearm possession," and indicated a BB gun was a firearm. Ms. Rosky asked if a child who shot a BB gun would be booked into the Clark County Jail. She reiterated the language of the bill offered no discretion. Ms. Rosky stated she understood the need to "buckle down on these crimes" but added the matters should be left to the discretion of the juvenile court judge, which is the law at this time. Senator Adler reminded Ms. Rosky of the example cited by the METRO representative of the juvenile with an extensive juvenile record and no adult certification. He pointed out under S.B. 42 that juvenile would have been certified as an adult before he reached adulthood and was charged with attempted murder. Ms. Rosky responded that could have been accomplished without taking away the discretion of the juvenile court as is done in S.B. 140. She said, however, there are children who should not be certified as adults but would be because the court would have no choice because of the mandatory language. Senator James asked Ms. Rosky if she knew if the language in S.B. 42 would allow the district court judge to certify a juvenile "back down" to that status. Ms. Rosky responded there was a statute which states if a person is between the ages of 18 and 21 years and commits a felony, the district court can send the case to juvenile court for a certification proceedings. She added, "There really is no provision to allow for a second guess by a different judge." Senator Adler said if there was an automatic certification, the district court judge could determine the person was a juvenile. Ms. Rosky disagreed, saying the juvenile court has no jurisdiction for attempted murder or murder, and the juvenile would automatically be treated as an adult. She stated the way S.B. 140 is written, it provides that a judge "...cannot send back to juvenile court any crimes involving attempted murder, murder or any related offenses or any felonies involving the use of firearms." Senator Washington indicated it would be a viable deterrent for a juvenile if he understood he would be tried as an adult for possessing a firearm. Ms. Rosky indicated she has defended young juveniles for possession of a firearm and queried if locking them in the Clark County Jail would be doing a service to that child. Senator Washington answered he would "definitely lock them up." Senator Washington stated, "Basically we are spending a lot of money on social programs when we need to add some deterrent to let these juveniles know that the law really means business...." Ms. Rosky replied, "That's what we have the juvenile court for." Senator Washington said it was a different situation when a decision is made to end another person's life, the perpetrator should be classified as an adult. Ms. Rosky stated the way the law is written now, that perpetrator would be classified as an adult. She added, however, the present legislation "...would open that up to any felony involving the use of a firearm...which includes a BB gun." Senator Washington responded, "If that is the case, so be it." Senator Adler pointed out section 6(3) of S.B. 42 does allow for certification down to juvenile court under exceptional circumstances. Ms. Rosky said she would stand corrected but added, "What a colossal waste of time." She reiterated her belief the court should have the discretion in the first place. Senator Lee questioned whether providing the juvenile court with discretion worked, considering the statistics of the past few years and the testimony presented at the hearing. Ms. Rosky said she believed there has been an increase in certifications and indicated she believed the system was working at this time. She suggested language could be developed which requires a certification hearing while leaving discretion with the court. Senator Porter asked Ms. Rosky for suggestions as to what could be done in light of the increase in murders caused by firearms. Ms. Rosky answered she was satisfied with the provisions of S.B. 42, "...except for the language regarding mandatory certification." Senator Porter then asked how many cases the public defender's office has handled which involved juveniles with guns. Ms. Rosky replied, "Hundreds," and added the majority of the cases lead to convictions. Senator James read into the record a statement provided by the Nevada Wildlife Federation, Inc. Said statement is attached hereto as Exhibit G. Senator Adler stated he believed the concerns addressed in the statement had been corrected by the amendment set forth as Exhibit C. Senator James referenced S.B. 140, saying he had requested the bill be drafted on behalf of Sheriff Jerry Keller of METRO. He said the substantive provisions of the legislation are in section 2, which adds language providing that felonies involving the use of a firearm which are committed by juveniles do not fall within the juvenile court system. Testifying in favor of S.B. 140 were David F. Bash, Chief, State of Nevada, Division of Child and Family Services, Youth Parole System, and Bruce Alder, State of Nevada, Division of Child and Family Services. Mr. Bash stated the division was strongly in support of the legislation. He said they would recommend slight modifications to the language regarding exercise of judgement in transfers of juveniles to the adult system. Mr. Bash indicated they would like the language to have "presumptive certification." He said this would provide that there would be a certification hearing with the presumption the case would be heard in adult court, unless the juvenile court judge provides, in writing, his findings as to why the juvenile should be kept in the adult system. Mr. Bash stated the division wants the court to be able to "sift through and sort out" those juveniles who are still open to certification. He continued: "In real life...the circumstances surrounding the decision of what to charge...surrounding the involvement and culpability of the youngsters, is not that clear." Mr. Bash said their goal was to deter young people from having guns. He stated there were juveniles who took guns to school "out of fear" or to impress others, who would be deterred by such legislation. Mr. Bash said he would like to ask the committee members to "consider carefully an assumption that seems to be implicit in the discussions...that somehow putting [the juvenile] in the adult system is tougher or harsher treatment." He stated there are young persons who are treated very severely in the juvenile system. Mr. Bash continued: I can visualize situations where the same youngster with the same fact pattern, handled in the juvenile system would be sent to our training center, where he would be held very accountable...while going into the adult system he would be released on his own recognizance, have an extended trial period and eventually be granted probation. Are you really being tougher on someone by putting them on the street on probation, than you are incarcerating them in the juvenile system? Mr. Bash stated he believed the law should provide for sanctions which are "measured and tailored to the individual." He said if a "presumptive certification" is done, the court may exercise discretion if the child is one who can be rehabilitated. Senator Adler stated he did not believe the state had the facilities to incarcerate more juvenile offenders, since none had been added since 1980. Mr. Bash stated he was very supportive of the suggestion that there be a 40-bed secure facility for serious juvenile offenders. He reiterated he did not believe the juveniles should "all be thrown into the adult system without any discretion." Senator Adler said there should be room in the budget for a secure conservation camp. Mr. Bash responded, "You are not going to get any argument from me." Senator Titus asked Mr. Bash if he was in agreement with the testimony provided by Susan Rosky. He stated he was. Senator Titus said their arguments regarding discretion by the court were "very compelling." She then asked Mr. Bash how he would feel if the language provided that persons between the ages of 16 and 18 years were always certified as adults if they committed a crime with a firearm. Mr. Bash said it would be a compromise, but he reiterated his belief there should be a review by the court before certification takes effect. He also stated, "Seventeen-year-old youngsters are not all the same. Some are 17 going on 13 and some are 17 going on 30." Mr. Bash added he wished to make sure the system takes into account the individual, not merely that individual's date of birth. Senator Titus responded she was inclined to agree, but was looking for a compromise considering the current trend in violent crimes by juveniles. Mr. Bash stated there needed to be education provided to "break the myth that the way to gain power is to carry a gun." Mr. Alder addressed the matter of additional resources to house juvenile offenders. He said there have been changes within the division to address these needs, such as changing the facility at Caliente from an all-girl facility to an educational facility, opening 80 beds for young male offenders. He said they also have a contract with the state of Tennessee wherein serious offenders can be sent out of this state. Mr. Alder said this program was funded by the Legislature so those offenders can be treated in a "more sophisticated program." Mr. Alder provided the committee members with an article which appeared in a Winnemucca newspaper, which he described as a "classic [example] of what Mr. Bash talked about...basically good kids who do real stupid things." The article is attached to these minutes as Exhibit H. The next person to testify on S.B. 140 was Timothy O'Brien, Chief Deputy District Attorney, Juvenile Division, Office of the Clark County District Attorney. Mr. O'Brien stated he liked the bill, but suggested one change. He said he felt there should be a "bottom-end age" placed into the legislation. Senator James asked if that age should be 13 years, and Mr. O'Brien responded he would prefer the age of 14 years. Lt. Lesney indicated she wished to add comments regarding S.B. 140. She said she appreciated the testimony she had heard regarding the discretion issue and agreed a "lower-end cap" would be an excellent compromise. Lt. Lesney said with this compromise, the needs of the community could still be satisfied. She also reiterated earlier testimony that to a juvenile, a gun means power. Senator Lee asked Lt. Lesney if she would agree that the "first printed record" on a juvenile was not the first actual contact with law enforcement. Senator Lee, using law enforcement terminology, asked if Lt. Lesney would also agree that that person's "rap sheet" could be as long as both arms. Lt. Lesney responded affirmatively. Senator Adler asked Lt. Lesney if she felt there should be a secured juvenile facility in the state to take in the "middle group" that perhaps should not go into the adult system, but should not be treated on a juvenile level. Lt. Lesney answered she did believe there was such a need. Senator James asked Lt. Lesney if she would support S.B. 140 with the type of compromise suggested by Senator Titus, i.e., "automatic from 16 to 18 [years] and presumptive below 16 [years]...unless there was clear and convincing evidence why they shouldn't be charged as an adult, they would be charged as an adult." The chairman indicated another compromise would be as suggested by the district attorney's office, that is having a "bottom-end" at age 14 years. Lt. Lesney responded she would be in support of the bill with a "bottom-end," with a presumptive hearing provision for an age younger than 14. She added they have had instances of 12-or 13-year-olds who would fit into that category. The next to speak to the committee was David F. Sarnowski, Chief Criminal Deputy Attorney General, State of Nevada, Office of the Attorney General. Mr. Sarnowski indicated he wished to direct his comments to the matter brought forth by Senator Adler concerning the need for a more secure and larger "holding facility." He said he believed there would be some legislation which would be directed toward sending younger offenders into a longer "holding pattern of incarceration." Mr. Sarnowski pointed to the fact he had not heard testimony from the State of Nevada Department of Prisons and added he believed it was absolutely necessary to have their input. He stated if no other arrangements were made for sending juvenile offenders under the legislation to secured facilities, "...they are going to end up in the Department of Prisons." Mr. Sarnowski added, "Having handled...civil litigation brought by older offenders who have claimed to have been misclassified or put in harm's way...I would foresee...that the attorney general is going to be seeking additional staff to handle civil lawsuits...." He said if more juvenile offenders go into the system, there must be a place to hold them. Mr. Sarnowski stated he knew of one group who is "dedicated to doing nothing else but suing states and counties for inadequate holding facilities...where it involves offenders of a young age." He said there were other bill drafts being prepared in this regard and added the attorney general was not in a position to support S.B. 140 until those bills have been introduced. Senator Porter indicated there had been earlier hearings which involved the Department of Prisons at which time he had asked questions regarding civil suits filed by prisoners and employees. He said his recollection was that those suits were "minimal." Mr. Sarnowski answered those type of suits were filed by inmates who felt themselves to be "weaker and targets for other people." He said it was obvious that a 14-year-old would become a target for someone who was much older and had been in the adult system for a long time. Senator Lee asked if the State of Nevada was sending the more violent offenders to other states because Nevada had no facilities or because another state may allow them to be in adult detention. Mr. Sarnowski said the witnesses from the Department of Human Resources would be in a better position to answer the question. He stated, however, he believed those juveniles were sent out of the state because of this state's lack of facilities to hold a juvenile offender on a long-term basis. Senator Adler said he thought if juveniles went into the adult prison system, they would have to be kept in single cells for their own protection, which would involve additional funding. Mr. Sarnowski responded it was possible the Department of Prisons could operate a facility at the Lovelock prison, in order to keep the juveniles away from older offenders. Senator Titus stated she believed it would be helpful to have a juvenile court judge present to answer some of the questions posed regarding the legislation. Senator James agreed he would like to have that testimony. James J. Jackson, Nevada State Public Defender, indicated he wished to attempt to answer the question posed earlier by Senator Lee. He stated the State of Nevada, through the Division of Child and Family Services, has a contract with Corrections Corporation of America, which runs a private juvenile facility in Shelbyville, Tennessee, for serious and chronic offenders. Mr. Jackson said at one time Nevada had placed approximately 40 juveniles in the program. He added, "That program is for the worst of the worst of Nevada's youthful offenders." SENATE BILL 167: Revises provisions governing admissibility of certain evidence relating to children. Senator James opened the hearing on S.B. 167, stating the legislation was another aspect of the issue regarding juveniles and crimes. The first persons to testify were Ben Graham, Chief Deputy District Attorney, Office of the Clark County District Attorney, Las Vegas, Nevada, and Timothy R. O'Brien, Deputy District Attorney, Juvenile Division, Office of the Clark County District Attorney, Las Vegas, Nevada. Mr. O'Brien stated he spent the bulk of his time doing child protective proceedings. He referred to section 2(1) of the bill, saying it was basically a "hearsay statute" which allows statements to be taken from children under the age of 10 years, if they were victims of sexual abuse. Mr. O'Brien indicated criminal statutes provide for such statements, but those statutes do not apply to a child protective hearing. He then referred to section 2(2) of the bill, and said that section was a "reenactment of Nevada Revised Statutes (NRS) 50.090, which is known as the "rape shield statute." Mr. O'Brien indicated this statute referenced cross-examination of prior sexual conduct. Again, he stated, this was protective of a witness in a criminal trial, but it does not apply to a victim in a child protective proceeding. Mr. O'Brien stated it's purpose was to "...at least give a child who is a victim of sexual abuse the same rights or protections that she would be accorded at a criminal trial." Lastly, Mr. O'Brien referenced section 1(6)(b) of S.B. 167, which provides that a juvenile witness can be impeached if felony conduct is present. Senator James asked if this type of impeachment testimony was common in other jurisdictions, and Mr. O'Brien answered he did not know. Senator Adler referenced the portion of the bill relating to "hearsay" and said he believed the Nevada Supreme Court overturned a conviction based on such evidence. Mr. O'Brien responded that the state of New York allows any minor to "automatically come in" and testify regarding any type of abuse and neglect. He said that law has been upheld by the courts in New York. Mr. O'Brien added: "How they put protection around that...they say if you are attempting to adjudicate solely on such hearsay, you need some other kind of corroborating evidence before you can have an adjudication." He stated he had proposed similar legislation in Nevada about four years ago, "...and it went nowhere." Mr. O'Brien said if a child cannot testify, "...we are out the window...which means the youngest and most vulnerable of kids...it doesn't matter what they say." Senator Adler then referred to the matter of impeaching a juvenile and asked how it would be done. Mr. O'Brien responded a certified copy of the dispositional order which adjudicates a juvenile as a ward of the court would give the juvenile formal sanction. Senator Adler asked if that order indicated if the juvenile was represented by counsel, and Mr. O'Brien answered it did not. He did specify this type of order was only used in the context of a juvenile proceeding. The next to speak regarding S.B. 167 were Lieutenant (Lt.) William H. Cavagnaro, Legislative Liaison, Las Vegas Metropolitan Police Department (METRO), Lt. Lawrence Spinosa, Detective Bureau, METRO, and Sergeant (Sgt.) Russell J. Shoemaker, Sexual Assault Unit, METRO. Sgt. Spinosa stated METRO supported the legislation stating the victim would "definitely be helped." He agreed with the concept that the bill's provisions would be in line with the way things are done now in criminal trials. Lt. Spinosa said there would be no fiscal impact on the department. He added with reference to section 2 of the bill, "More children would report more crimes if they are in fact victims...sometimes children won't report crimes because they are afraid their previous conduct may have not been appropriate with persons other than the suspect." Sgt. Shoemaker asked the committee: "How would you react if I asked you to stand up and tell us in the room about your most recent sexual activities, in extreme detail...?" He added, "I ask children to do that every day...I ask a four- or five-year- old to tell me how they were touched, when they were touched, where they were touched, and who touched them...." Sgt. Shoemaker said there were cases which had been denied for prosecution because a child would speak with the police officers, but would not talk in front of anyone else, i.e., the court. He said in those cases, they need to be able to utilize the same procedures in juvenile court which now exist in the criminal court. Sgt. Shoemaker said children are threatened in terrible ways such as: "If you tell you will never see me again; if you tell, you will never see your mom again. If you tell, I will tell everyone what you have been doing; I will tell them it was your idea...it is your fault." He said a perpetrator will tell the child that he will show videos or photographs if the child testifies in court. Sgt. Shoemaker stated a child who has been sexually abused for years may well be very sexually active within his peer group. He said children need the same protection adults have within the "rape shield law." Sgt. Shoemaker indicated S.B. 167 would do that and reiterated METRO's support of the legislation. Senator Porter asked if there were things which were even "more stringent" which should be done to protect the juveniles. Sgt. Shoemaker answered, "Currently, the things which we have available to us in criminal proceedings with adults we don't have with children, such as the ability to videotape and the use of closed circuit television in court presentations. He said those were the biggest provisions he would like to see utilized in the juvenile court. Senator Porter asked if such provisions would need to be enacted legislatively. Senator James responded there was legislation enacted during the last session which dealt with videotaped depositions by children, which may be a tool which could be utilized in child protection cases. Sgt. Shoemaker agreed. The next to speak regarding S.B. 167 was David F. Sarnowski, Chief Criminal Deputy Attorney General, State of Nevada, Office of the Attorney General. Mr. Sarnowski said presumably if the state were to be allowed to pursue impeachment of a juvenile offender with prior juvenile acts, he could forsee a defense attorney obtaining access to the records of a juvenile who was not his or her client. He said there should be a restriction on the dissemination or other use of those records by defense counsel. Senator James asked Mr. Sarnowski if he could offer an amendment which would address this issue. Mr. Sarnowski answered he would work with Ben Graham to develop such an amendment. Senator Adler stated he did not believe defense counsel would be allowed to have the records of a juvenile who was not their client. Mr. Sarnowski responded the state would have all the information on a witness who may be subject to impeachment, and the defense counsel would have none. Senator Adler said there should be language in the legislation which would allow the district attorney or defense attorney to obtain a copy of such juvenile witness' records. There being no further business to come before the committee, the hearing was adjourned at 4:20 p.m. RESPECTFULLY SUBMITTED: Marilyn Hofmann, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary February 7, 1995 Page