MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session February 15, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James at 8:30 a.m., on Wednesday, February 15, 1995, in Room 1006 of the Grant Sawyer State Office Building, 555 East Washington Street, 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 A. Adler Senator Dina Titus Senator O. C. Lee STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Dennis Neilander, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT Ben Graham, Lobbyist, Clark County District Attorneys Association, Nevada District Attorneys Association Robin Bates, Chief, Classification and Planning, Department of Prisons Glen Wharton, Classification and Planning, Department of Prisons Lieutenant Stan R. Olson, Lobbyist, Las Vegas Metropolitan Police Department Sergeant Tom Lozich, Supervisor, Repeat Offenders Program, Las Vegas Metropolitan Police Department George Glanville, Families of Murder Victims Eric S. Cooper, Lobbyist, Nevada Sheriffs and Chiefs Association Senator James opened the meeting to presentations and discussion regarding habitual offender laws. SENATE BILL (S.B.) 40: Increases penalty for certain convicted habitual criminals. Senator Adler explained S.B. 40 had come about as the result of an interim subcommittee study on violent, habitual criminals. He asked Mr. Neilander to elaborate on the study. Dennis Neilander, Senior Research Analyst, disbursed copies of materials used in the study. He said the first (Exhibit C) was an overview he had prepared to show the approach used by the State of Washington to the "Three strikes and you're out" concept, and the second (Exhibit D) was a copy of relevant portions of the interim study report. Commenting on Exhibit C, Mr. Neilander explained prior to 1984 national statutes were similar to those in effect in Nevada at the present. He stated in 1984 the Washington legislature established a grid system in which previous offenses are used in a scoring process which results in longer sentences for felons. He said in 1993 Washington passed initiative 593 that required the legislature to mandate the "Three strikes and you're out" provisions depicted on page 105 of Exhibit C. Mr. Neilander declared most states that have copied the "three strikes" legislation have determined there are three primary issues. He indicated the first issue is whether the prosecutor should have any discretion as to the charges under the statute, and the second is whether the judge should have discretion in sentencing. He said the third issue is which offenses should trigger the statute. Washington delineated those offenses as Class A felonies, described by Mr. Neilander as violent or sex-related crimes, as set forth on page 105 of the exhibit. In response to a query by Senator Porter, Mr. Neilander declared 95 percent of all cases are plea bargained down to a lesser offense, giving rise to the issue of whether the prosecution should have discretion regarding charges. He said the interim study committee has heard complaints that the habitual criminal statute is used as a plea bargaining tool rather than as an actual sentencing tool. Mr. Neilander called attention to the synopsis of Nevada's current habitual criminal law found on page 109 of Exhibit C. He said the penalty for the one part of the law is incarceration for 10 to 20 years upon a conviction for a third felony after two prior convictions of felony crimes, but it includes those crimes which are not violent or sex- related. Mr. Neilander called the major provision of Nevada's habitual criminal statute depicted on page 110 a "four-strike provision." He stated those crimes could result in a life sentence with or without parole. He declared those include a broad class of crimes and the provisions are discretionary as to the charges to be brought by prosecutors and as to whether the judge finds a count of habituality. Mr. Neilander reported the subcommittee has reviewed laws and studies regarding the amount of discretion and types of crimes that should trigger habitual criminal statutes from a number of states as well as those from the State of Washington. He asked the committee to examine the information in Exhibit D delineating the parameters of the study. Mr. Neilander said he has prepared a fundamental fiscal analysis of the impact of a habitual criminal statute. He referred to a list of crimes (Exhibit E) the subcommittee has determined should be included to trigger a "super" habitual statute, with reference to provisions in the Nevada Revised Statutes, based upon figures on page 16 of Exhibit D. Mr. Neilander pointed to an estimate of the number felons who might have been caught under the "super" habitual statute on page 18 of Exhibit D from May 1992 through May 1993. He calculated those inmates would have served an additional 81 years at a cost of $1,149,000 over a 37-year period. He declared the fiscal note on the bill, which has not been released by the Department of Prisons (DOP) yet, would address the fiscal impact of S.B. 40. Mr. Neilander called attention to the number of crimes enumerated in Exhibit E which carry sentences that include life imprisonment or death or terms that exceed 10 years. He said the subcommittee determined those are the ones that should trigger the "super" habitual statute. He explained the crimes included under S.B. 40 are those for which sentences are in excess of 10 years. Mr. Neilander acknowledged provision for some discretion is retained in S.B. 40 because, although the measure removes discretion from the district attorney, it allows the judge some discretion. He explained the judge can impose a sentence of life either with or without the possibility of parole. In a number of states, he said, including Washington, if the "super" habitual criminal statute is triggered, the judge must impose a sentence of life without the possibility of parole. Mr. Neilander noted a sentence of life with parole requires incarceration for a minimum of 10 years, although some statutes require incarceration for longer terms. He said, "Life with generally means 10 years, life without means the offender has to serve 20 years before he can apply to the pardons board." Senator Porter commented the matter of judicial discretion has come up in every discussion on the subject. He asked Mr. Neilander to give more detail on the subcommittee's deliberations on the matter. Mr. Neilander responded the subcommittee has discussed mandatory minimum sentencing and recognized even though the law may cite a sentence of 1 to 10 years imprisonment, if the offense is probational the sentence is not really 1 to 10 years. He reported testimony has indicated there is an inherent understanding that there should be no discretion in sentencing for anyone who has committed three violent or sex-related crimes. He asserted that is the underlying principle in all "three-strikes" provisions. Senator Porter asked if there is a reason the proposal would apply on perpetration of a third offense rather than after a second offense. Mr. Neilander suggested the cost of incarceration is a factor. Senator Adler interjected one reason the study committee selected three could be attributed to the fact it would reduce the provision of the current law by one offense. He asserted the law would be tougher in that it would take offenders off the street sooner than under current law. He said any three of the serious crimes listed on Exhibit E would be cause for the habitual criminal provision under S.B. 40. He noted many felons convicted of just one of the more serious crimes are presently serving life sentences. According to Mr. Neilander the committee could see how the three-strike provisions apply by reviewing the crimes committed by seven individuals listed on page 18 in Exhibit D. He pointed out all seven inmates had first been convicted of robbery, while the second conviction of four of those on the felony list who would fall under the proposed habitual criminal statute had also been for robbery. Senator Adler commented it is interesting that only five to seven people would be convicted per year under the habitual criminal statute but, he pointed out, often those five would be paroled and "were fairly certain to re-offend." He suggested incarceration under the new statute could avert perpetration of more violence, "and the cost ... is somewhere around a million dollars spread over a period of years, so we're not talking big money to take these people out of circulation." Senator Washington expressed concern that after two robbery offenses there might not be anything to prevent a criminal from taking a chance on killing a victim when he committed a third robbery if life imprisonment is a certainty. As an example he mentioned the possibility of a person robbing a 7-11 store and killing the clerk rather than take a chance the clerk could identify him in which case it is almost certain he would be caught. Senator Adler acknowledged the subcommittee has discussed such a possibility and thus has decided to allow the judge some discretion. Senator Washington reiterated his concern that under such circumstances an offender would assume life imprisonment is assured. He worried whether the bill will provide truth-in-sentencing. Senator Adler responded although some offenders are aware of the law, many do not know what the law states. He reminded the committee a knowledgeable criminal would know the prosecutor could not plea bargain away the offense and the judge would have limited discretion in sentencing. On that basis, he asserted, the bill does provide truth-in-sentencing. Mr. Neilander recalled testimony from prosecutors regarding a similar scenario during the subcommittee hearings that the majority of offenders do not consider the consequences of their actions. He related that other states have made cost-benefit analyses on "three-strikes" measures. He said some came to the conclusion savings can be effected from the standpoint of the cost to victims and society. He reminded the committee there will be increased court costs because there will be no plea bargaining. Senator Adler opined S.B. 40 ultimately would save the state funds because it would have the effect of preventing murders, each of which costs society more than $1 million. Senator McGinness observed most people do not consider the consequences during the perpetration of a crime, and it is likely persons convicted of robbery have probably committed other crimes for which they were not caught. Senator James added there are other costs to society from crime in addition to the costs of prosecution and incarceration. He cited a study done by the University of Maryland which demonstrated the habitual offender cost society $452,000 per year as opposed to an incarceration cost of $14,000 per year. Senator Adler commenced a review of the provisions of the bill, which he called "fairly self-explanatory." Senator James questioned the provision in section 1, subsection 1 providing the habitual offender be punished by imprisonment in the state prison for life with or without the possibility of parole. He recalled the provision is to be without the possibility of parole. The committee debated the points regarding sentence to life with or without parole for the habitual offender. Senator Adler indicated he has no strong feelings one way or the other. Senator James acknowledged the subject had been debated in the interim study deliberations. Senator Adler commented some of the judges at those hearings expressed a desire to maintain the possibility of life with parole under some circumstances. He explained, "I think Senator Washington's circumstance where the guy shows up at the 7-11 and then doesn't victimize someone or something like that to give that some consideration." He suggested that is the type of situation in which the judges wishes to retain the use of discretion. Senator Porter inquired how the sentencing committee proposed by the Governor would affect habitual criminal statutes. Senator Adler acknowledged the Governor's proposal includes a habitual criminal statute and is similar to S.B. 40. He pointed out the Governor's staff attended meetings of the interim study committee. He said: I think what it does is when you get to page 2, as I understand it, we have provisions in there for habitual criminals to be imposed upon persons who commit crimes such as fraud and those types of crimes. His bill removes that provision for the imposition of the habitual criminal just for nonviolent crimes. This bill keeps those provisions. But it does not make the filing of the habitual criminal a mandatory provision. The reason for that is it is the interim study committee felt that the threat of the imposition of the habitual criminal is a good plea bargain tool for prosecutors who, if you have a guy with say multiple credit card fraud- on his fifth one-the DA [district attorney] can say, will you plead to credit card fraud or else we're going to file an habitual criminal on you and then he pleads straight up, they don't have a trial and he goes off to prison and gets his 5 to 10 years or whatever it is. We thought that was still valuable. Senator Adler mused there are certain situations in which a person should be convicted under a "little" habitual criminal statute for a 20-year sentence or maybe even longer. As an example he cited a situation in which a person repeatedly victimized senior citizens in stock schemes resulting in the loss of life savings. He said: I can see where a prosecutor would want to have that option. And that's why we left it in the statute, as I recall. I haven't read the Governor's draft but I think his proposal is to front-end load habitual criminals for violent offenders and not have it for the nonviolent offenders. Senator Porter asked for an explanation of the duties of the sentencing commission proposed by the Governor. Senator Adler replied the commission would group all crimes and set statutory minimum terms, and it would calculate the total prison budget and calculate the cost under the habitual criminal statute. He said, "It would be, in essence, going through the whole criminal code and redoing it." Mr. Neilander responded the sentencing commission was first named in 1985 at which time it had a series of meetings. He said the commission made a number of recommendations, including a request for further funding and a full-time staff person to complete its mission, and it recommended sentencing guidelines. He noted some of the recommendations were adopted while it left questions as to whether there should be mandatory minimum sentences or if a grid scheme as proposed by S.B. 40 should be added to the criminal code. He declared the committee had not met since it completed its initial report. Senator James interjected in the 1993 legislative session the commission had been given the power to accept grants to aid in the performing of the functions assigned to it by law. Senator Adler pointed out no grants had been given to the commission. Continuing his discussion of the bill, Senator Adler stated a policy decision should be made as to whether it should include life with or without the possibility of parole. He said section 2, subsection 2 refers to the list of crimes which Mr. Neilander provided in Exhibit E. He explained, "These are the ones that trigger the super habitual criminal. We already have the habitual criminal statute." Senator Adler declared section 3 contains the procedural part as to how the habitual criminal designation would be filed. He explained it would be proven outside the purview of the jury after a notice of habitual criminality had been filed by the district attorney, and if there were a jury trial and conviction, the judge would impose the habitual criminal designation. According to Senator Adler, "section 4 is the what's called the `little' habitual criminal act" in which a felon would become eligible for the designation upon commission of a third felony after he had already been convicted of any two prior felonies. Senator Adler continued: "Then the rest of the bill goes back into the current habitual criminal law, which is three felonies and the fourth being committed which then makes you eligible for the habitual criminal." He submitted the bill would provide for a minimum sentence of 10 years under the "little" habitual criminal statute, for no more than 20 years upon commission of a felony after two felony convictions, and the "big" habitual criminal status would take effect upon commission of a felony after three prior felony convictions. Requesting clarification, Senator James asked if a "little" habitual criminal designation called for imprisonment for 10 to 30 years. Senator Adler responded: We go to the big habitual criminal which is ... discretionary, which would be ... a fourth felony, which is life with or without, but it's discretionary.... The DA and the judge have to impose it. Then what this is is kind of a super habitual criminal which is any two felonies listed here, and a third felony in that same category would be mandatory filing of the habitual criminal by the DA's office, mandatory imposition by the judge, and life with or without. Senator Adler stated if the bill passes there would be three levels of habitual criminals. Acknowledging he had not seen the Governor's proposal, Mr. Neilander voiced his understanding it would do away with the lesser habitual criminal classifications and retain just one such designation. He concurred S.B. 40 is a type of three-tiered system with classifications such as "little," "big" and the new "super" habitual criminal status. He recalled testimony during the interim study from senior citizens that the "little" habitual criminal designation is useful because it encompasses fraud-related white- collar crimes. He stated the testimony concluded it should be available to prosecutors as a discretionary tool. Senator Adler concurred it might be wise to retain the habitual criminal charge, for use by prosecutors after a third felony, for instances in which senior citizens' life savings are lost due to fraud. Senator James and Senator Adler debated whether there would be a substantial change in the sentence for murder after a convict had already committed three felonies under the proposed new statutes. They concluded in the case of murder the result would be a life sentence, as at present. They agreed the new statute would have greater effect upon crimes such as sexual assault, child molestation, battery or robbery. They debated whether the sentence would mean life with or without parole upon commission of a fourth felony; whether it would require mandatory prosecution under the habitual criminal statute; and whether it would be discretionary with the judge. Senator Adler opined, "I think they get life without. " Senator James remarked the bill is very well thought-out but asked if it would dovetail with truth-in-sentencing, especially if the crimes are categorized. Senator Adler responded the habitual criminal laws are almost a separate category. He surmised: If we change the trigger offenses we're going to have to cross-reference those.... It might be easier if we redo the criminal code. The habitual criminal would be easier to categorize because ... instead of having this list of crimes ... you'd say any three category-one or -two crimes triggers this. It'd be ... easier for us if we had our crimes categorized one, two, three and four, because we'd say ... any of the first three categories or first two categories ... kick into the super habitual criminal.... Senator James agreed. He proposed both measures should be passed or revised and include the truth-in-sentencing provision. Senator Adler concurred, and added the habitual criminal scheme would work better if crimes are categorized and defined more clearly. Senator James and Senator Adler discussed which crimes should trigger the habitual criminal statutes. They listed crimes such as solicitation to commit murder, and incest, which carry penalties of 1 to 10 years in jail. Senator Adler opined, "I think incest with two prior sexual assaults should trigger the habitual criminal," to which Senator James voiced agreement. Senator James and Senator Adler were unable to conclude whether mayhem should have a sentence longer than 1 to 10 years in prison, and they agreed there are several offenses which should be considered in greater depth. Switching babies at birth is another crime they felt required further consideration, and they agreed dueling or placing a spouse in a brothel are nearly obsolete and might not belong within the habitual criminal statutes. Mr. Neilander pointed out similar issues were raised during the interim study. He said, "You have the benefit of having had this whole interim committee get to this point. It really was quite a task to get to there. The work session, which was the last meeting, is when the subcommittee decided which crimes would trigger...." He stated the committee is aware adjustments would be needed for some of the crimes. Mr. Neilander acknowledged the subcommittee had not been able to determine the fiscal issues. He stated fiscal impact could be estimated only after it is decided which crimes would trigger habitual criminal statutes. Senator James asserted the bill needs further refinement. Senator Washington wondered if the felonious offenses should be categorized before proceeding on deliberation of the habitual criminal statutes. He expressed concern the committee might have to duplicate its efforts. Mr. Neilander responded, "Those two processes are ... related and I would say they're not mutually exclusive. You can do both, and in doing both you may have some overlap, but they're certainly not conflicting in any way." Senator Adler interjected: We could ... pass this bill and then if we end up re-categorizing those top level crimes we could do an amendment to the second bill which re- characterizes [a] conflict amendment, we could straighten it out.... Senator Washington suggested it would be easier to categorize the crimes first. Senator Adler countered, "I don't think so, because I think what you're doing is ... just that laundry list, subsection 2 of section 2. That's the only part you'd be changing, just the numerical references in there. That wouldn't be too difficult." Mr. Neilander commented Washington State and a few other states restructured their sentencing through a "laundry list" called Class A felonies, which includes serious violent crimes. He said the Washington State habitual statute applies to any class A felony. Senator Adler agreed the bill could be amended to include a Class One or Class A designation which would only require a simple conflict amendment and would not be a very complicated procedure. Senator Washington inquired if it would be confusing to define the various levels of habitual criminals as small, big and super. Senator Adler responded those terms have been used for years by prosecutors and prisons officials. Senator Washington expressed concern that people urging more consideration of victims rights might disagree if a judge imposed a "small" habitual criminal sentence. Senator Adler asserted habitual criminal statutes are good because they provide more truth-in-sentencing than other statutes. He averred it would be clear to a victim how much time an offender would serve under habitual criminal statutes. Mr. Neilander stated he would provide the committee with a chart depicting the various designations. Senator Porter asked if Mr. Neilander or Senator Adler have a copy of the Governor's proposal and if it is essentially the same as S.B. 40. Senator Adler replied, "No, I think we're obviously trying to explain what his view of habitual criminal amendments are." Senator Adler pointed out the interim study committee held several hearings, and he and Senator James worked on S.B. 40 for several hours. He declared the proposal by the Governor is similar to S.B. 40. Senator Porter suggested it would be more efficient for the legislative branch and executive branch to work together. Senator Adler interjected he did not understand why the proposal by the Governor's office is different, because much of the information on which the bill is based came from the executive branch. He declared, "Many of their ideas are incorporated into this bill already. You may not need two bills." Senator Porter reiterated his concern for victims. Senator Adler asserted S.B. 40 or some amended version should be processed and passed as quickly as possible in anticipation that it may prevent violent crimes. The committee discussed the stalking bill passed during the Sixty-seventh Session of the Legislature. They noted several bills had been offered, and ultimately one bill was amended and changed until all parties were satisfied. Mr. Neilander reported the interim study committee had recommended that there be another, broader-based interim study. He recalled the intention was to make the felony sentencing commission a broad-based group in order to avoid duplication of efforts; and, as a result, it include members of the legislative, executive and judicial branches of state government and law enforcement officials. Additionally, Mr. Neilander stated there had been a blue-ribbon committee in 1991 to study prison overcrowding made up of members from the executive branch and the Legislature. Senator James invited testimony from the audience. Ben Graham, Lobbyist, Clark County District Attorneys Association, Nevada District Attorneys Association, offered support for the effort to tighten habitual criminal statutes for violent offenders. Mr. Graham voiced reluctance to give up discretion in making the decision as to whether or not to file a habitual criminal charge. He explained there are times when conviction may be difficult and the district attorney would like to be able to offer an alternative. Mr. Graham remarked many of the crimes listed in the bill, such as destruction or obstruction of railroad tracks, are very rare and have not been used for many years. He acknowledged support for the concept of habitual criminal status. There was agreement among committee members that although the example of the railroad tracks cited could be very dangerous, its inclusion in habitual criminal statutes could be misused, such as in the case of someone who stole one or two railroad ties to use in his garden without serious damage to the railroad. Robin Bates, Chief, Classification and Planning, Department of Prisons, took the floor and introduced Glen Wharton, also from the Department of Prisons, whom he said would explain the fiscal implications of habitual criminal statutes. Mr. Bates stated the primary difference between the bill proposed by the interim study committee and the one submitted by the Governor is that the nonviolent offender or fiduciary offender who commits a crime would be excluded from sanctions under the habitual criminal statute. He explained the reasoning behind the Governor's bill is that while, under present law there is no distinction between a "bumbling burglar" and a career criminal; under the Governor's bill, a point system would be used to augment the habitual criminal statutes in order to develop a clear distinction between an occasional criminal and someone who has, for example, repeatedly damaged lives by stealing life savings. Mr. Bates declared current statutes do not make a clear distinction between career criminals and those who may have only committed three or four attempts on property over many years. He suggested including nonviolent offenders in the habitual criminal statute would encourage use of the statute for plea bargaining. He averred that would confuse the system and would make it more complicated. As an example, Mr. Bates said there are no more than 100 to 125 inmates out of a total of 7,000 who are serving sentences as habitual criminals for non-violent offenses. In response to a query by Senator Adler, Mr. Bates stated if no discretion had been involved there would have been many more people who could have been charged as habitual criminals for nonviolent offenses. He said the statute is not used frequently for prison sentences, it is primarily used for plea bargaining. Mr. Bates suggested if the habitual criminal statute is to be used for nonviolent offenders, language should be included that would target career criminals. He voiced the necessity for a definition of career criminal. Senator James asked how one distinguished between a career criminal and a repeat offender. Mr. Bates responded the repeat offender units of law enforcement in both Washoe and Clark Counties have an instrument that defines a career criminal. He suggested the committee could use similar language if it intends to keep nonviolent offenders in the habitual criminal statutes. Senator Adler asked if use of the designation habitual criminal is working. Mr. Bates replied: I would say there are some that you're going to see that you would not want to give a life sentence to. You're going to hear examples ... where the habitual criminal statute has been applied in a way that I think this committee is going to want to change, because if you want to waste some sentences for violent offenders and balance the system ... you're not going to be able to use life sentences for those kinds of people unless you want a much larger prison system. Mr. Bates declared there are more serious offenders who have been charged under the habitual criminal statute who do not fit the definition of a career criminal. He pointed out under present statutes it is possible to convict a person for life who has committed five gross misdemeanors. He suggested that law should be changed. Mr. Bates told Senator James he could provide a copy of the career criminal instrument and policy established by the two counties. Senator Adler commented he and Mr. Bates are aware of a case in which a person had received an excessive sentence for "being criminally obnoxious" to the judge. The case involved a situation in which the person wrote five bad checks for approximately $500 each and then vilified the judge so the judge sentenced the person to 10 years consecutively for each check. The senator admitted the person "was one of the most obnoxious people" with whom he had ever had contact, but he opined it is not good economic use of the state's funds to keep such a person in prison while a more violent person might be released. Senator James suggested more discretion could have been employed. Mr. Bates concurred a better way must be found to distinguish between offensive and criminal- type people such as through a point system. Senator James agreed it is difficult to differentiate between a person convicted on a fourth felony and a career criminal. He asked for more clarification. Mr. Bates responded a career criminal would not be caught as often and hardship on the victims would be a factor. Senator Adler interjected those factors would be considered by a judge during sentencing, and are not matters a district attorney (DA) would have to prove. Mr. Bates responded a person would not be charged as a habitual criminal unless certain elements are present. Senator Adler asked if the defense counsel could attack the charge if enough of the proper elements are not present. He said: Right now ... with the habitual criminal you've got to come in with a judgement of conviction certified by the court that they were out of, present that to the judge and ... (a lot of times you have the transcript) if there was a guilty plea showing that they were represented by counsel and you have to have three of those for the big habitual criminal, two for the little and in our new bill you have to be two of a certain variety and a third of that variety to prove it out.... If you had a point system where ... the DA has to prove up the points, that might bother me as that's too much of a burden on the DA's office to get all that paperwork together. Mr. Bates indicated under the point system each prior conviction would be evaluated on a different basis, whereas under the present system the charge is based upon whether the person has previously been convicted or not. Senator Adler asserted, "This bill actually does that to a certain extent anyway, because we've only included serious offenses.... This one kind of has an automatic point system blended in off the super habitual." Mr. Bates responded the additions proposed by S.B. 40 are similar to those recommended by the department of prisons, but, he said, the DOP would recommend repeal of language that applies to other types of offenses. He declared the only indexed offenses would be those to be used for finding a person guilty of being a habitual criminal, some as a "little" habitual criminal, some as a "big" habitual criminal. Mr. Bates told the committee the Governor's bill provides that a person who commits a violent or sex offense with two prior convictions for a violent or sex offense will be charged with being a habitual criminal. He added the measure proposed by the Governor will repeal everything else that relates to petty larceny, fraud or other offenses and applies solely to violent and sex offenses. Senator James welcomed two groups of government class students from the Meadows School, one from an advance placement class and the other from an honors class. He told them how the committee functions and summarized the discussion of S.B. 40. Senator James inquired how the point system would work under the Governor's proposal. He stated it appears that in either bill after two prior offenses, the third offense would come under super habitual offender statutes. He pointed out S.B. 40 retained the old habitual offender clause which would take effect on the fourth offense for any kind of felony, and would provide for a life sentence with or without parole. He noted there is provision for a lesser sentence of 10 to 20 years when a person has been convicted of any felony two times and then committed a third felony. Senator James asked for an explanation of the provision under section 4(a). Senator Adler indicated that is the "little" habitual criminal designation. Senator James iterated that would apply to any three felony convictions. He asked if that is where the point system would come into play. Mr. Bates replied: Right. It would be a separate ... statute, and it would target career criminals and apply points, offense non-specific. It could be used for any offense. And when you accumulate enough points then there would be an imposition of a life without possibility of parole sentence. It would offer differential processing for property offenders. It would look at the sophistication of the crime, the hardship on the victims, more so than the current statute does. Mr. Bates added those crimes could lead to conviction under the habitual criminal statutes. He stated right now it does not result in an increase in the prison population because it is primarily used for plea bargaining. He reiterated that is the reason the discretion is left in the proposal made by the interim study committee. He voiced his opinion that it is not good policy to retain a statute for the sole purpose of plea negotiations. He declared if the present statute is used on a broader basis, other than for plea bargaining, it will result in a lot of people being in prison who should not be there. Mr. Bates voiced approval of the additional language in the bill presented by the interim study committee with the exception of the minimum sentence time before parole. He suggested it should require incarceration for a minimum of 20 years instead of 10 years. He declared the parole minimum should be higher if the last steps are going to be either life with or without parole. Senator Adler agreed a minimum of 20 years before parole makes sense. Joining the meeting, Senator Titus asked if the point system was developed by an official of the Clark County prisons. Mr. Bates confirmed her query. He said it had been developed by Deputy Chief Paul Conner of the Las Vegas Metropolitan Police Department (METRO) and endorsed by the Rose Commission. Senator Adler declared: My only problem with the point system, I can understand how you would find points if you had a judgement and conviction, but if you take ... things such as impact, [where] ... you don't have a document, I don't know how you'd prove up the points if you're a prosecutor. Mr. Bates agreed the point system would be more difficult and would require more staff time, but he suggested it would put the "right" people in prison and it would save funds in the long run. Senator Adler argued if the defense claimed subjective factors were not proven, such as impact on the victim, it would be difficult to dispute. Mr. Bates conceded he has no answer for that situation. Glen Wharton, Classification and Planning, Department of Prisons, testified an evaluation has been made of S.B. 40 prior to its introduction. He said the results affirmed that the logic used in the bill is clear. Mr. Wharton related there is an inmate information system which records information such as prior convictions and the current sentence. He said an analysis of those inmates who would have been subject to the provisions of S. B. 40 over the last year indicates there would be five inmates falling under its parameters over the next biennium. He estimated there would be between 120 and 130 inmates who would qualify over the next 10 years. He pointed out the statutory time for parole used in the analysis is 10 years, which is beyond the time span of the projection, so no further projections were made taking into consideration a 20-year parole minimum or life with or without parole. Senator James asked if the figures would change substantially if the minimum parole term is extended to 20 years. Mr. Wharton responded it would not change the projections already made since the limit of the projection is 10 years. He noted that ultimately the number of offenders would begin to stack up and grow faster after 10 years if the minimum is extended. He explained that a person who has already been convicted of two violent offenses would receive a long sentence on the third offense, and those people would be included in the projection whether or not they were designated as habitual criminals. Senator James invited further testimony on the language of S.B. 40, at which time, Lieutenant Stan R. Olson, Lobbyist, Las Vegas Metropolitan Police Department, introduced Sergeant Tom Lozich, Supervisor, Repeat Offenders Program, Las Vegas Metropolitan Police Department (METRO). Sgt. Lozich related he has been a member of METRO for 18 years, with the detective bureau for 11 years and assigned to the repeat offender criminal section for the past 7 years. He said research done by the United States Department of Justice in conjunction with the Police Executive Research Forum and the Jefferson Institute supports the theory that among criminals there is a core group of 20 percent who commit 80 percent of crimes. Senator James interjected a study done by the Uniform Reciprocal Enforcement of Child Support Act (URESA) at the University of Maryland has suggested the core group of those committing 80 percent of serious crimes could be as low as 7 percent. Sgt. Lozich said the Police Executive Research Forum polled inmates in Michigan, Texas and California and came to the same conclusion that a small group commits most of the crime. Sgt. Lozich explained METRO defines a career criminal as one with a documented background as a persistent offender, a person who at a very early age was involved in either property crimes such as robbery or crimes of violence, and who continued to commit crimes throughout his adult life. He said the career criminal would have amassed a great number of arrests and felony convictions and would have been incarcerated in both county jails and state prisons. He declared such persons are easy to identify as career criminals due to their documented persistent behavior. Sgt. Lozich described the repeat offender who, through situations in life or through change in behavior, has suddenly become more criminally active. As an example, he explained it could be a person who occasionally used cocaine or other controlled substance and escalated to heroin or methamphetamines which would control his life to the point where he would become involved with the criminal element in order to support the habit. Another example he cited is the person who came in from out-of- state and became addicted to gambling, lost everything and turned to crime to make ends meet. He said those are the types of people who frequently commit a series of crimes, and they are usually caught, whereas the career criminal is not apprehended as easily. Sgt. Lozich indicated the career criminal will plan his crime carefully, such as studying the target and planning an escape route, but the repeat offender tends to commit the same kinds of crimes with which he has become comfortable, often in the same area. He acknowledged the repeat offender does make an impact on the community as does the career criminal. Senator James asked why the police have attempted to distinguish between career criminals and repeat offenders. Sgt. Lozich replied both make an impact on the crime rate and at one time or another constitute part of the 20 percent committing 80 percent of criminal acts. Senator James said he could not see the justification in prosecuting the two types differently because they should be punished equally. Sgt. Lozich voiced agreement, but stated there is an attitude within the criminal justice system that the career criminal should be judged differently than the repeat offender. He said statistics indicate repeat offenders are convicted less often than career criminals. He suggested the career, persistent criminal has caused more grief. Senator James asked Sgt. Lozich if he, as a police officer, feels a repeat offender convicted for a third time should have the same sentence as a career criminal who is sentenced as a "little" habitual offender. Sgt. Lozich concurred with the suggestion, but said other factors should be weighed, such as the perversion of the individual. He suggested other remedies could be used for the repeat offender who turned to crime as a result of something like gambling, such as enrollment in Gamblers' Anonymous. Senator James posed the question whether the person who suddenly turned to crime should be given another chance or should he be treated like any other person who committed several felonies. Sgt. Lozich responded true criminals often commit a wider range of crimes, often through confrontational crimes. He asserted those are the types of people who should be addressed. He cited battery or assault with a deadly weapon as the crimes demanding focus. Sgt. Lozich stated Deputy Chief Conner has made a study of sentencing, called the Presage System, which takes into consideration the criminal and not just the crimes for which he has been convicted. He indicated the Presage System gives a total picture of the career criminal. He agreed the convictions need to be considered, but the background of the criminal including his arrests, his legal representation and other factors would be included in the Presage System. Senator James inquired if repeat offenders are as dangerous as career criminals and if they should be sentenced to life. Sgt. Lozich responded the recidivism rate should be taken into consideration. He said a study done by the U.S. Department of Justice in 1992 showed 67 percent of those on a third conviction returned to the justice system within 2 years of release from prison. Sgt. Lozich told of an individual who robbed a bank last year who was new to town and during the chase was trapped in a cul-de-sac where he took his own life. He said a background check showed the individual had four convictions for forgery. He surmised that individual was a persistent criminal involved in a wide range of criminal activities who pointed up the need for habitual criminal statutes. Senator McGinness declared he is having difficulty making a distinction between persistent criminals and repeat offenders. He wondered if the gambler from out of town who repeats his mistakes has become a career criminal. Sgt. Lozich responded that person would not be considered a career criminal because he does not have the lifelong documentation. Senator McGinness asked why it should make a difference just because the individual may not have commenced his criminal activity until he was 30 years old. He suggested people should be given a break only so long. Sgt. Lozich voiced agreement and said although the usual definition of a career criminal starts with the youngster, the person in the example cited by Senator McGinness could eventually fall under the same parameters. Senator Adler asked if the police file a specific document with the district attorney's office once a person has been identified as a career criminal. Sgt. Lozich replied there is a point at which a filing is made identifying a person as a habitual criminal. He said a repeat offender with three prior convictions is not considered a career criminal and no filing is made. Sgt. Lozich described the repeat offender as a person who may have committed a string of felonies before being apprehended and as: someone who ... may have two or three prior felony arrests ... a couple of misdemeanors, maybe he's got some misdemeanor traffic convictions in his background, but nothing that would alert us to him being someone who is a persistent career offender. Senator Adler asked if that person could be recommended as a habitual criminal. Sgt. Lozich replied he could not be identified as a habitual criminal, but the maximum sentence could be sought. He declared if the person is convicted of one burglary the police will request a 10-year sentence, "unfortunately knowing that he'll be out in 3." Senator Adler suggested that type of individual might not commit another offense whereas the career offender would do so. Sgt. Lozich concurred and stated that marks the distinction between a career criminal and a repeat offender. Senator James declared, "That makes a real difference." He submitted Sgt. Lozich was making no new proposals. Senator James compared the situations by saying the sergeant was describing a habitual criminal prosecution of the perpetrator with a prior conviction who falls within the statute, while also advocating a higher sentence for the person who does not have a prior felony conviction in order to take him off the streets, but who cannot be sentenced as a habitual criminal. Senator James acknowledged there would be some difficulty in treating two people differently who each have three convictions. George Glanville, Families of Murder Victims, read testimony (Exhibit F) prepared by Eva Collenberger, Executive Director of Families of Murder Victims, who was absent. The testimony enumerated prior offenses and sentences by people who later committed murder. Mr. Glanville indicated those were good examples of offenders who should be convicted under habitual offender statutes. He declared Families of Murder Victims offers full support for habitual offender laws. The committee discussed testimony heard on the previous day, which they called "remarkable," from a member of Families of Murder Victims whose son had been murdered. When asked why the person who murdered her son in 1993 had not gone to trial, Mr. Glanville said the defense attorney has been able to obtain several continuances by alleging the defense was not prepared for trial. Mr. Glanville surmised the delays could result in a more favorable outcome for the perpetrator because witnesses will be unavailable. He said one of the witnesses had committed suicide. He averred the woman was under terrible strain. Commenting on how often trials are postponed, particularly for driving under the influence of controlled substance (DUI) offenses, Senator Porter asked if there is a limit on the number of times a trial could be postponed. Mr. Graham responded postponements are often used as a defense tool and can be granted at the discretion of the court. He related in 1993 the district attorneys' associations had attempted to expedite sexual assault trials because, according to the statutes, the defendant is entitled to go to trial within 60 days. He said the effort was unsuccessful. He asserted judges are reluctant to force trial when a continuance is sought by the defendant for fear they may violate the defendant's due process rights. Senator James requested copies of studies cited during the hearing by Mr. Graham and Mr. Bates be provided to members of a subcommittee later in the day. Mr. Bates said the report made by the sentencing commission consists of 160 pages and is available from the Legislative Counsel Bureau library. Mr. Graham suggested the list of offenses on Exhibit E would be a good tool for the committee to use for inclusion in any list of serious crimes. Senator Adler called attention to what he felt was an omission in S.B. 40. He said there is supposed to be some language cross-referencing where similar crimes are committed in this state or elsewhere. He said section 2 subsection 2 should include the statement "or equivalent crimes in other states." Senator James noted similar language could be found under section 4(a). After some discussion the senators determined the proper language was already included in the bill. Senator Titus averred the committee would benefit from having copies of the Presage Report. Mr. Bates provided copies of a portion of the report (Exhibit G) to the committee. He pointed out the report includes a distinction between a repeat offender and a career criminal. He read from Exhibit G: Most of us would agree that we should begin focusing our energy on the two types of offenders who cause our communities the most harm. The violent predators and career criminals clearly deserve to be removed from our community permanently. The violent predators and those who victimize all the Polly Klasses of the world. A violent predator normally has prior convictions for the same type of offense ... While the average robber commits 4 offenses a year, the career criminal commits 57.... Mr. Wharton continued reading the document. Mr. Bates interjected under the current habitual criminal statutes, all repeat offenders are treated the same by his department. Acknowledging there are differences, he suggested habitual criminals should be treated differently because there are different classes of offenders. Senator Adler declared he understands the distinction but has doubts how it could be expressed to the satisfaction of the courts. He asserted the court would require some documentation to make the distinction as an offer of proof that penalties should be apply to a perpetrator as a career criminal. Senator James stated that would be taken under consideration by the subcommittee. Eric S. Cooper, Lobbyist, Nevada Sheriffs and Chiefs Association, came forward to testify. He provided the committee with copies of a study made by the United States Department of Justice (Exhibit H. Original is on file in the Research Library.) on The Case for More Incarceration. Mr. Cooper said the National Institute of Justice (NIJ) has estimated the custodial cost of an inmate per year at $15,000, annualized prison construction costs at $5,000, and the social cost of incarceration at $,5000 for a total of $25,000 per year per inmate. He explained the social cost includes displacement of the family, lost income, costs to visit the inmate. Mr. Cooper said a Rand Corporation study has indicated inmates average 187 crimes per year exclusive of drug deals. He reported the estimated average cost per crime is about $2,300, so the typical inmate would be responsible for $430,000 in crime costs per year. He compared that to custodial costs of $25,000 per year. Senator James interjected that correlates with the University of Maryland study indicating a cost of $452,000 per year. Mr. Cooper stated the NIJ estimates the incarceration of 1,000 more inmates at a cost of $25 million per year would avert 187,000 felonies at a social cost savings of $430 million. He called the statistics "incredible." He provided the committee with a collection of statistics on the NIJ study and newspaper articles (Exhibit I). In the absence of further testimony, Senator James adjourned the meeting at 11:30 a.m. RESPECTFULLY SUBMITTED: Judy Jacobs, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary February 15, 1995 Page