MINUTES OF THE SUBCOMMITTEE MEETING OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session February 14, 1995 The subcommittee meeting of the Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 1:45 p.m., on Tuesday, February 14, 1995, in Room 1006 of the Sawyer State Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Maurice Washington Senator Ernest E. Adler STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary Maddie Fischer, Primary Secretary OTHERS PRESENT: Steven Twist, Attorney, American Legislative Exchange Commission Donna Hunzeker, Program Manager, National Conference of State Legislatures Stewart Bell, District Attorney, Clark County, Nevada Charles Thompson, Deputy District Attorney, Clark County, Nevada Ben Graham, Chief Deputy District Attorney, Clark County, Nevada, and Nevada District Attorneys Association Robin Bates, Chief of Classification and Planning, Department of Prisons Senator James addressed the subcommittee and those scheduled to make presentation to the subcommittee outlining the goals of the subcommittee and thanking Robin Bates, Steven Twist, and Donna Hunzeker for their attendance and patience. He referred to Exhibit C, a list of crimes and their punishments in Nevada, stating that it was an integral part of the process necessary to enact a truth-in-sentencing bill. He then called Mr. Twist and Ms. Hunzeker to testify. Steven Twist, Attorney, American Legislative Exchange Commission, addressed the subcommittee. He noted that Robin Bates was one of the most important persons in the effort to enact truth in sentencing. He told the committee the process the State of Arizona went through to enact their similar law. The Arizona legislature, he noted, asked the department of corrections in that state to come up with the average time served for every category of offender and every category of offense. Next, he said, they considered this list of offenders and offenses and compared them with the presumptive sentencing system that was then in effect in Arizona, trying to determine how the sentence ranges would need to be adjusted to accommodate the "increase in the legally required time-served percentage." He noted, the process was rather smooth because Arizona already had a crime classification in place, along with a narrower "presumptive range" of punishment. Additionally, Arizona already had one-half to two-thirds of sentence served as a requirement, according to Mr. Twist. Mr. Twist explained that once this categorization of crimes and punishments is in place, it is much easier to decide which crimes should be addressed in the current legislative session and which ones might reasonably be postponed to a later time. Senator James asked Mr. Twist to provide the subcommittee with the Arizona law, as well as asking him and his associate Dr. Block to be available to assist the subcommittee in the drafting of the bill. The chairman offered to keep Mr. Twist apprised of the developments of the subcommittee and asked him if he could provide to the subcommittee articles which talked about other social factors which contribute to incarceration/crime rates. Donna Hunzeker, Program Manager, National Conference of State Legislatures, offered to provide the committee with information and a "checklist" that outlines what information or statistics other states had gathered in their own deliberations of truth-in-sentencing laws. This, she suggested, will "prevent you from having to reinvent the wheel." The chairman agreed that such things will be invaluable. Senator Adler asked the witnesses if they think it is appropriate to recategorize the crimes into "four, say, main criminal categories," and then work back from the numbers. He stated he is simply trying to figure how to think about the process logically. Mr. Twist agreed this would be an effective process. He elaborated from his own experience in Arizona, talking of classifying each felony into one of six classes; one being the most serious, and six being "open-ended offenses that can be prosecuted as either felonies or misdemeanors, or sentenced as felonies or misdemeanors..." Through this classification, the legislature organizes in a logical way the punishment of the offenses, Mr. Twist added, rather than the usual, haphazard approach used by many legislatures. Several senators agreed that there is no real system to assigning punishments to crimes, which results in inconsistent levels of punishments for similar criminal activities. Ms. Hunzeker noted her agreement with the need for a categorization of the crimes in order to better approach and analyze the severity of the crimes and to "group them according to which crimes require the most truth." Senator Adler asked her to provide the subcommittee with an example of a uniform code, or samples of categorization statutes from other states. Senator James referred to testimony by Stewart Bell, Clark County District Attorney, at the previous hearing which dealt with the "systemic problem" of dealing more harshly with `personal use drug crimes' than violent crimes such as burglary or aggravated assault. Mr. Twist admitted Arizona had experienced the same thing where sale of any quantity of a controlled substance had a mandatory prison sentence. Now, he noted, with the reform, there is a threshold quantity before mandatory prison terms apply. Senator Washington speculated that drug sales might be a separate category of crimes, with very large quantities being class- one crimes and small quantities falling into the less serious classes. Mr. Twist agreed this would allow the differentiation between a small time user/seller and the career drug dealer. The next witnesses were Stewart T. Bell, District Attorney, Clark County, and Charles Thompson, Deputy District Attorney, Clark County. The chairman asked Mr. Bell to recount his views on truth-in-sentencing for the subcommittee. Mr. Bell stated there are certain propositions which must be kept in mind when approaching truth-in-sentencing. First, there are limited resources in the system, (e.g., limited police, limited prosecutors, limited judges, limited jail space) which requires prioritizing the use of those resources, the district attorney noted. He emphasized the two classes of criminals which should be allotted the most resources are violent and habitual offenders. Mr. Bell put it this way: We have to, basically, allocate prison space to violent criminals and habitual offenders. Those are the two classes of people. Those people, who by a single act have demonstrated a disregard for life and limb such that society needs them isolated; and those who, although in a single act haven't done anything, they have demonstrated by a course of conduct, that they have made crime their career, and they are basically doing life in prison on the installment plan. The only issue is, how many times during that life in prison do they get out, each time committing a number of crimes. He expressed his view that those types of individual need to be recognized and imprisoned early and for as long as possible. Senator James asked the district attorney if he felt the truth-in-sentencing should apply to the violent criminal and the proposed habitual criminal statute should apply to the other. The witness said that truth-in-sentencing does not mean abolishing the parole system, but there is a need for a sentencing structure that is easily understood by the public. He explained that judges understand how the current system works, that it requires an exaggerated sentence to assure the criminal will spend a minimum amount of time in prison. Unfortunately, he noted, the victims and other members of the public do not understand that when a sentence of 15 years is given, it actually means 5 years will be served. They hear 15 years and they expect the defendant to spend 15 years in prison. The witness stated that his office has a plan for the future. He explained, the district attorney would find out from the prison officials what the minimum time served will be on a particular sentence, and then they will send a letter to the victims of the defendant informing them of this difference between sentence given and sentence served. He reiterated his view that it is imperative to review the "laws and make sure that our priorities are in the right place." Turning to habitual criminals, Mr. Bell explained the current status of statutes pertaining to habitual criminals. He stated that his office has a policy that anyone with three felony priors, no matter what they are, is charged as a habitual criminal. This is because this defendant has shown a propensity for crime, usually in an escalating rate. On the other hand, the witness noted, if a defendant comes up who has multiple convictions for "say, forgery," even though "they're kind of habitual, and maybe they ought to be in there 5 to 6 years," it is unlikely the charge of habitual criminal will be made because it takes up a bed that would be better, "in terms of public safety," filled by a more dangerous or violent criminal. This particularly applies to the drug user who has been in jail five or six times "because he is addicted to cocaine," opined Mr. Bell. The district attorney stated it is his understanding the subcommittee is planning to introduce a bill making it mandatory for a fourth offense, violent criminal to be charged as a habitual offender. This causes him no problem, he said, because it is the policy of his office anyway. He pointed out there will be some impact on the district attorney's ability to negotiate pleas in certain instances, "but so be it." Senator Washington asked Mr. Bell if he feels it would be better to consider nonviolent and violent criminals differently when discussing habitual criminal statutes, or if "three strikes and you are out" is acceptable. Mr. Bell replied "Three strikes and you're out is just not a good thing," adding this is because such an approach does not allow any "prioritizing" of resource allocation, but indiscriminately fills prison beds with people who are not as much a threat to public safety as others. Mr. Thompson added his comments in regard to the proposed habitual criminal bill, stating his agreement that the way it is written (i.e., a third charge for a violent crime preceded by two convictions for similar offenses results in a mandatory habitual criminal charge) causes his office no problem because it is already the policy in Clark County. Senator Adler interjected that Robin Bates, of the prison system, has run some figures regarding the bill and has concluded there might be approximately 10 people per year "who were kind of slipping through the cracks." Robin Bates, Chief of Classification and Planning, Department of Prisons, explained this was partially a result of these people already receiving "10 year minimums" on the original offense, and so, it would take 10 years for the figures to change. Mr. Thompson asked if some of the individuals sentenced to life without the possibility of parole are subsequently paroled. The reason he asked, he said, is to bring out the point that even though people are sentenced to life without the possibility of parole, they are paroled. "If you want to talk about truth-in- sentencing, there is one sentence that ought to mean something, and that is life without the possibility of parole," he said. District Attorney Bell emphasized that point, noting, the one thing the committee could do "to ensure the safety of the public and save millions and millions of dollars," would be to make a sentence of life without the possibility of parole just that. Doing this would precipitate other positive effects, such as, prosecutors not seeking the death penalty because they would be assured the convict would not "see the light of day," the witness noted, continuing that each time a death sentence is sought results in $1 million to $5 million in costs. Further, Mr. Bell noted, inmates know that "life without" does not mean that, and this leads them to force a trial because there is not much difference between a negotiated "life with" and a jury sentence of "life without." This also results in huge fees for court-appointed counsel for the defendant, costs to the prosecutor's office, to the courts, to parole and probation, all of which could go to other things. This single change would be number one in terms of benefits to the entire system, Mr. Bell stated, both in terms of fiscal responsibility and in terms of public safety. Senator Washington asked the witnesses how this change might impact the process of plea bargaining for the prosecutor. Mr. Bell responded that plea bargaining is necessary because of the 13,000 felony and 20,000 misdemeanor cases they must prosecute each year. With the current number of courts and judges, and prosecutors it would take 40 years just to prosecute the 1994 cases. This means, he explained that 98 percent of the cases must be negotiated. His office particularly likes to plea bargain murder cases, if the defendant will take a life sentence (either with or without possibility of parole) because this saves the great expense of a trial, there is no chance of losing, and there is no appeal, he said. He expressed his understanding the public does not like plea bargaining. It is, however, a fact of life, he said, and "...a tool of "life without" [parole] would save us a number of murder trial and millions of dollars every year, and get into the system of priorities that we are taking about." The chairman asked the witnesses to continue their discussion of the various crimes and their ranking of them. Mr. Bell replied that following murder is kidnapping, sexual assault, armed robbery, attempted murder, and armed robbery, followed by mayhem, and battery in attempt to kill or battery in attempt to commit sexual assault. These crimes are the most serious and carry the longest sentences. Mr. Thompson addressed the subject of truth-in-sentencing by illustrating his own experience as a judge where he had to sentence someone to 15 years in order for him to serve 5 years, with part of the remaining 10 years on parole. He suggested the best way to allow for truth-in-sentencing would be to give the judge a range of time for sentencing for each offense (i.e., not less than 5 or more than 10 years) and have that sentence actually be at least 5 years long and no longer than 10 years. Senator Adler noted the speakers had made some good points and he then referred to the interim study done by the Senate. He pointed out there are many disparities in the sentencing structure as it currently stands. Everyone agreed. At this point, the chairman outlined what the subcommittee needed to do in the future in order to reach the goal of creating a criminal justice reform package. Mr. Bell stated his willingness to help in any way possible. Reviewing a bit, Senator James noted Mr. Thompson's remarks about retaining some of the discretion to the judge, stating a way to make that possible would be, perhaps, to increase the minimum sentences to be given and allowing the judge to work within that framework. This would also require, he noted, that good time credits or other things that come into play to reduce time served, not have any impact upon the minimum required sentence. Senator Adler suggested using the list of crimes produced by the interim study (Exhibit C) as a basis for categorizing the crimes and their sentences. Mr. Bell emphasized the need to focus on the violent offenses at this time and let the other, nonviolent crimes go until the committee has dealt with the first group. He also suggested that a statute be enacted that would exempt the most violent offenses from the application of good- time credits. Senator Washington wondered whether they really meant to say that good-time credits could not apply until the minimum time has been served. Mr. Bell pointed out there are currently statutes that only allow good time credits to be "applied to the back end, but not the front-end." This means, he explained, that the convict must serve the minimum term in `flat' time without any credits being applied, but after that, if the convict were to serve his entire sentence without parole, the good time credits would apply to the back end and he would be out in "say 15 years instead of 20, or whatever the number might be." Mr. Bates noted that all the statutory minimums work this way, that is to say, good time credits do not apply to the parole minimum (i.e., the minimum amount of time that must be served before the convict is eligible for parole). Mr. Bell stated, "The only time they come into play is when the person isn't going to be paroled, but the amount of time they actually got, less good time, is less than the minimum amount for parole eligibility." Senator Washington expressed his view that this is exactly what the public finds so confusing and frustrating with the sentencing system. Mr. Bates pointed out the current state of the sentencing system is the very reason that reform is necessary. Statutory minimums, under current law, apply only to parole eligibility, not discharge, he continued. He gave an example of an inmate who receives an 8-year sentence for second degree murder, with a 5-year minimum parole eligibility. This individual, he explained, cannot go to the parole board before 5 years, but they will discharge that 8-year sentence before 5 years is up. The chairman stated changing this is one of the goals of the committee. Senator Adler noted the interim committee received numerous complaints from sentencing judges regarding the astronomical fines assessed against convicted drug dealers. These fines, he stated, are never collected because they are completely unrealistic. He asked if the witnesses thought the drug trafficking statutes need review in this regard. Mr. Thompson agreed, noting in his experience as a district judge he had imposed $50,000 fines "dozens of times," and he was certain these fines were never collected. Mr. Bell suggested a revision to the trafficking statutes which would change from "minimum" to "maximum," the current fine schedule. This would allow the sentencing judge some discretion to determine the ability of the defendant to pay the fine the judge might assess. This would make the process much more credible, he added. And, Senator Adler noted, it would be another step toward truth-in-sentencing. As it stands now, Senator James concurred, the fines are so big that no one realistically expects they will be paid, and it is impossible to make payment a condition of parole. Senator Washington noted for the subcommittee that parole and probation personnel had testified they have no way to really enforce restitution payments, as well. Mr. Bell suggested a means to collect restitution would be to get a judgement against them in court and then garnish a maximum of 25 percent of their wages. He continued, those people who are paroled should be required to assign 25 percent of their wages to restitution through this process. Mr. Thompson suggested that the sentencing judge could include wording in the sentence that automatically provides a judgement in favor of the victim, should the restitution remain unpaid at the time of the convict's release. Mr. Bell offered an alternative that as a requirement of parole the convict be required to sign a non- revocable assignment of 25 percent of his wages until the obligation is paid. If they do not sign the agreement, they do not get paroled, he noted. Ben Graham, Chief Deputy District Attorney, Clark County, addressed the committee stating the committee should remember the whole criminal justice system cannot be changed at one time, but the major crimes should be addressed directly, without delay. Senator James asked Mr. Bates to add his comments and inquired as to his availability to assist the committee at future dates. Mr. Bates asked to make a statement, at the risk of irritating the committee. He stated: I'm an advocate of a more cautious, measured approach to reform. In that respect I think that the sentencing commission is a good idea. I think that the work you are taking on is more work than you can do in the context of a 6 month legislative session. And Arizona is a bad example to compare us against, because they have many more staff in their legislature, many more staff in their prison system, and much more money dedicated to that project. So, what they did, I don't think, can be replicated here fairly. Senator Washington interrupted Mr. Bates to point out to the committee a commission, was previously established in 1986 under NRS 176.002, to suggest sentences for felons, in other words, to do exactly what the committee is hoping to do during this session. He told the subcommittee it was his understanding this commission had been less effective than might be hoped. Mr. Bates acknowledged the existence of the Springer Commission and noted they did not have the staff to do the job. He further explained the Governor's proposed commission would be staffed and there would be a "mandate" for the agencies to provide additional research. He took a moment to explain what a sentencing commission would do, stating, "A sentencing commission would come up with a plan, a system, and then they would present it to the Legislature so that it could be codified into law." Senator Adler stated he understands the purpose of a commission, but noted there had been "commissions on other topics which were never enacted into law." He said he thought the problem might stem from a lack of advocacy for the commission because it did not contain representatives from the legislative bodies. Senator Washington noted his reluctance is with forming another governmental agency with a budget. Mr. Bates emphasized this is probably one of the most complicated areas of public policy and he asked the committee to be sure to separate the two different issues in front of them; truth-in-sentencing and the desire to have longer sentences. Additionally, he asked them to consider structured sentencing as part of the reform package (i.e., where the sentences are more clearly organized and structured which allows prison officials to plan better). Senator James thanked Mr. Bates for his candor and noted that while he does not "necessarily oppose the sentence commission," he is opposed to wasting the time of the Legislature with passing bits and pieces of law. Instead, he noted, the Legislature would rely on the expertise of Mr. Bates and the prison administration in order to effect good, comprehensive, balanced, fiscally responsible reform. The senator added he felt the Legislature and the prison administration could work together to come up with a common sense, reasonable reform package that the Governor could support. Senator Adler reiterated the chairman's view adding some of the things the committee could do would be "basic structural things, setup schedules or categories of crimes...., could work through setting up, say, just schedule two, with the view towards ... getting the basic structure down." He asked the subcommittee to at least decide what the categories should be. The chairman thanked Mr. Bates, admitting the strain he will be under over the next month and one-half trying to help the subcommittee. There being no further business, the subcommittee adjourned at 3:15 p.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Subcommittee of the Senate Committee on Judiciary February 14, 1995 Page