MINUTES OF THE
	SUBCOMMITTEE MEETING OF THE
	SENATE COMMITTEE ON JUDICIARY

	Sixty-eighth Session
	February 15, 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 Wednesday, February 15, 
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

GUEST LEGISLATORS PRESENT:

Assemblyman John C. Carpenter
Assemblyman Brian E. Sandoval

STAFF MEMBERS PRESENT:

Allison Combs, Senior Research Analyst
Lori M. Story, Committee Secretary
Maddie Fischer, Primary Secretary

OTHERS PRESENT:

David Mosely, Chief Judge, Eighth Judicial District
Grenville Pridham, Deputy Attorney General, Securities and Fraud Division
Ben Graham, Chief Deputy, Clark County District Attorney 
Robin Bates, Chief, Classification and Planning, Department of Prisons
Patricia Erickson, Attorney, Criminal Defense

Chairman Mark A. James called the meeting to order noting this subcommittee has 
been called to formulate truth-in-sentencing statutes, habitual criminals statutes, 
and a uniform criminal code for Nevada.  First to testify was David Mosely, Chief 
Judge, Eighth Judicial District.  

Judge Mosely spoke to the committee stating his support for the concept of "three 
strikes and you're out" which he said was taking a tough stance and it sends a 
message.  The judge outlined his understanding of the proposed legislation dealing 
with habitual criminals, noting that once an individual has been found to fit in the 
category the district attorney is required to file the charge. He explained his concern 
deals with the situation where the court has lost its discretion to review the matter 
and determine whether or not the habitual criminal enhancement will affect the 
imposed sentence.  Currently, the district court can review the allegations of prior 
offenses and determine that some are not supported.   It is a somewhat arbitrary 
situation, allowing the  judge to have the discretion to impose the habitual criminal 
enhancement, he admitted, adding his reluctance lies in the rare circumstances 
where the judge may not want to impose this enhancement.  

Sentencing is one of the more important functions of the court and one where the 
judge is allowed to use a little ingenuity to fashion a sentence that is appropriate 
for the particular offense and the particular circumstances and the individual 
involved, Judge Mosely told the committee.  When this discretion is circumvented, 
it cuts into an area that is essential for the court to review.  The judge indicated 
there are instances where a negotiation can be encouraged by the dropping of the 
enhancement, which, he also admitted, "flies in the face, to some extent, of the 
purpose of the three strikes concept." This is not something that should just be 
eliminated entirely; as there are circumstances where the prosecution has a weak 
case, without the evidence necessary to convince the jury to find guilt, but they are 
certain the events occurred and the suspect is guilty, the judge pointed out, and if 
that bargaining tool is available, the suspect is likely to take a plea of guilty.  When 
you take the discretion away from the court you lose that tool, he concluded.  

SENATE BILL (S.B.) 40:		Increases penalty for certain convicted habitual 
criminals.

Senator Adler noted S.B. 40, has a specific list of crimes that are the only ones to 
which it will apply and the department of prisons personnel report it will only affect 
from five to seven defendants a year statewide.  The category is a narrow one 
because it applies only to serious violent offenses and sexual offenses, with the 
additional two prior felony convictions necessary before the statute attaches, the 
senator continued. Additionally, the judge does have the discretion to either 
sentence them to life with or without possibility of parole, he said.


Judge Mosely admitted he was not familiar with the figures, but wished to make 
two points: 1) if it is just seven or eight people a year then whatever is done, good 
or bad, is going to have minimal impact; and, 2) is "the concept of wrenching from 
the court that discretion."  

Senator James agreed the judge pointed out an essential issue couched in all the 
legislation the committees are considering on sentencing.  The goal is to enact laws 
that insure a continuity and consistency in sentencing throughout the state while 
attempting to retain the judge's discretion to a certain extent, the chairman said, 
along with trying to make an aggressive revision of criminal penalties within a truth-
in-sentencing law.

Senator Adler added his concerns to those of Judge Mosely, noting that guidelines 
like the federal system's are not really guidelines, but more mandates. But, he 
added, he also shares the desire to have real truth-in-sentencing, so that when 
somebody is sentenced to prison everyone knows what that sentence means. 
Judge Mosely heartily agreed with the senator, adding an anecdote from his 
morning court where he had sentenced a man to 11 life terms and 40 years, telling 
the man, "I have no idea when you will be eligible for parole or what this sentence 
means, but it is my intent to put you in prison for the rest of your natural life."  
Senator James noted the department of prisons has one person whose entire job 
is to calculate, with the aid of a computer, inmates' sentences.  

The chairman thanked the judge for his input and took a moment to welcome a 
group from the chamber of commerce.  He called the next witness.


Grenville Pridham, Deputy Attorney General, Securities and Fraud Division 
addressed the committee.  Mr. Pridham noted he prosecutes securities fraud 
violations-investment crimes, and one thing he finds frustrating is the discounting 
of fraud because it is a nonviolent crime.  The nonviolent status of fraud seems to 
be the basis for probation for most of the defendants, Mr. Pridham stated, and this 
is why he feels it necessary to testify before the subcommittee. There are some 
very terrible things happening in the white-collar, nonviolent crime area, he stated; 
and while he concurs with all the things that have been said concerning violent 
criminals and putting them away for life, there has to be some consideration of 
what to do with these habitual nonviolent criminals. Securities fraud perpetrators 
are not one- time offenders, Mr. Pridham emphasized, noting by the time a 
prosecutor sees such a criminal he has had at least a 10- or 20-year lifetime of 
committing investment crimes against mostly elderly people, depleting them of their 
life savings.  The usual sentence from a court includes an incredibly large restitution 
order which is never paid, the witness said.  In his experience restitution orders in 
these nonviolent crimes are hollow sentences, citing his own experience of never 
having seen any restitution orders honored or restitution paid.

Senator James asked the witness if these crimes fall in a category of crimes 
against the elderly with its concomitant enhancement of double the sentence.  Mr. 
Pridham responded that while this enhancement may apply, double probation is still 
only probation, and he offered the committee an example.  Mr. Pridham continued, 
noting truth-in-sentencing needs arise even for nonviolent defendants, because the 
few of them that do get prison terms, serve very little time in prison. At this time 
there are not any real consequences for most defendants and especially for the 
white collar criminals, he testified.  They know they are going to rip off a couple 
of million dollars and if they get caught, the worst that will happen is they will 
spend only a year or two in prison, and most likely they will be put on probation, 
Mr. Pridham told.

Senator James asked the witness whether he charged the habitual offender statute. 
Mr. Pridham, replied affirmatively, "If I have habitual offenders.  Because of the 
way the white collar crime is, most of the defendants that I prosecute are being 
prosecuted for the first time."  The defendants show a pattern of lifetime crimes, 
he said, but because of the nature of the victims (i.e., elderly or gullible individuals), 
they tend not to report the crime or report it a long time after it occurred.  With the 
truth-in-sentencing reforms, Mr. Pridham suggested, it might be appropriate to set 
some sort of guidelines. If the crime involves above a particular dollar threshold it 
will be nonprobational offense and a mandatory sentence to prison would attach, 
he proposed, "because right now you literally can rip off millions and millions of 
dollars and get probation." 

Senator Washington asked Mr. Pridham if he would classify these offenders as 
career criminals. Mr. Pridham replied that, since most of the defendants he deals 
with have no other visible means of support and no work history, yes, they could 
be classified as career criminals.


Senator James summarized Mr. Pridham's request as a subject more for mandatory 
minimums in truth-in-sentencing, than an habitual criminal statute.  Further, he 
reiterated the need for a trigger to the statute, citing Mr. Pridham's suggestion of 
a particular dollar amount.  He asked if Mr. Pridham had any information from other 
areas that might have answered these concerns in their laws.  Mr. Pridham replied 
negatively, noting other jurisdictions are "similarly dysfunctional."

Senator Washington suggested guidelines which might include restitution and 
probation for the first instance of fraud, or for the first victim, with an increase in 
the penalty to include a mandatory prison sentence for additional victims or 
instances.  Mr. Pridham thanked the committee for their time, stating it was his 
intention to ask them not to lose sight of the impact these "white-collar" crimes 
have on their victims when revamping the criminal justice system.  These criminals 
should spend time in prison, he stated.

A group of students from the Clark County Future Leadership Youth Program, 
joined the hearing and the chairman welcomed them to observe and participate in 
the processes of government.  He then moved to the next witness.

Ben Graham, Chief Deputy, Clark County District Attorney, handed the 
subcommittee a list of top felony crimes (Exhibit C).  He noted there are actually 
two nearly identical lists; one includes residential burglary, the other does not.  Mr. 
Graham  pointed out the cover sheet of Exhibit C where the contributions to the list 
by David Sarnowski, Chief Deputy Attorney General, are outlined.  Mr. Graham told 
the committee that the list contained crimes that include death or substantial injury 
as their result.  He noted the absences of the crime of death by drunk driving, 
which he assumed is on the senators' other lists.  Mr. Graham went over the list 
with the subcommittee noting the crimes, their severity, their current penalty.

Senator James stated his disbelief that many of the crimes on the list are 
probationable including mayhem and child abuse with substantial bodily harm.  Mr. 
Graham noted there are only a few offenses that are not probationable.  Senator 
Adler told that instances where probation might apply would be where both parents 
are accused of child abuse with substantial bodily harm, and one is the state's 
witness to convict the other.  Mr. Graham agreed reminding the subcommittee 
these instances would most likely be where the witness was also much less 
culpable in the crime.  Senator James asked if there is not something else that 
could be used as an incentive to testify, rather than offering probation.


The second list of Exhibit C contains all the same crimes with the addition of 
residential burglary, Mr. Graham continued.  The residential burglary is included 
because of the high potential for harm through such an act.  This crime, at least in 
Clark County, is not readily reduced or probated, and then only with the complete 
agreement of the victims and law enforcement.

The witness stated that list has some room for adjustments and modifications to 
allow the truth-in-sentencing and habitual criminal bills to be drafted in an effective 
and fiscally sound fashion.  The chairman asked for suggestions from Mr. Graham 
on how these adjustments might be made.  The witness responded the prosecutors 
have not proceeded that far.  Senator Adler expressed his view that producing 
alterations to the list is the difficult part, especially when working within the 
confines of "an overall prison budget, a certain number of years that we have 
available to us, which translates into a certain number of people in prison."  If years 
are added to the penalties of some of the crimes, and it is determined that some 
should not be probationable, Senator Adler stated, it will be necessary to reduce 
other crimes' penalties.

Mr. Graham agreed there are nonviolent, drug offenses which could be altered.  
Senator Adler noted that some of the drug trafficking offenses could not, in reality 
be trafficking offenses, and even some judges have found this to be the case.  Mr. 
Graham noted that in Clark County the low-level trafficking offenses are not 
prosecuted as such.  Senator Adler stated they are prosecuted in the rural counties, 
offering an example of two similar cases, one prosecuted in Churchill County, and 
one in Washoe County.  The Churchill County judge sent the person to prison; in 
Washoe County the court system treated the incident like a traffic ticket, without 
even a court appearance.  This variation across the state is unfair, everyone agreed.

Moving on, the chairman asked Robin Bates, Chief, Classification and Planning, 
Department of Prisons, to address the subcommittee.  Senator James asked Mr. 
Bates to examine the list from the interim report (Exhibit D) and compare it to the 
list Mr. Graham provided (Exhibit C), noting there are many items of the list from 
the interim report (Exhibit D) that do not appear on Exhibit C.  The chairman asked 
him to compare the two lists and provide the subcommittee with an approximate 
figure of how many people are incarcerated for the listed crimes and the length of 
their sentences, particularly the "bottom end" of the list.


Mr. Bates asked what changes might be made in sentences on the "bottom end" 
of the list (e.g., drug trafficking and possession crimes).  The chairman attempted 
to clarify his request, noting the crimes at the bottom would included low-level 
trafficking which is subject to a sentence from 3 years to 20 years.  Mr. Graham 
added these are the crimes that are generally not prosecuted in Clark County, and 
these are the ones that would be affected at the "bottom end," through a reduction 
of the mandatory sentence or even diversion to a drug treatment program.  The 
chairman asked if there is a proposal in the Governor's budget to expand the  305 
diversion program.  Mr. Bates agreed there is, and added a reminder that a 305 
program, or programs such as "Lifeskills" also being proposed by the Governor, 
were not `beds' in the prison system, but services.

Senator Adler agreed the chairman is headed in the right direction in hoping to 
divert some of the people in prison to these out-of-prison programs.  Mr. Graham 
asked if it would be helpful to find out how many beds are filled in prison by people 
convicted of the crimes listed on pages 153 through 157 (Exhibit D).  Senator 
Adler said he recalled a figure of approximately 950 first-time alcohol or drug felons 
in the prison system which would be the group targeted to reduce or divert 
sentences to allow more room for violent criminals.

Mr. Bates reiterated the committee's desire to consider these felons for something 
other than prison.  He offered to provide the committee with some "seed ideas" of 
what other states are doing with low-end offenders, including their sentences and 
their prior convictions, looking to gain savings in prison beds.  He suggested the 
place to start is with convicts who are "first and second term drug or property 
offenders," and moving up the list from there.  Next, he said, the committee might 
want to consider the statutory minimums, particularly in the trafficking crimes.  
Senator Adler said it is his feeling there is no need to change the maximums, but 
the minimums should be examined carefully.

Senator James opined that if Mr. Bates can provide the committee with figures 
regarding the areas mentioned: options for first and second term drug offenders and 
options for changing minimums on the trafficking statutes; changes in those areas 
would have a "high impact" on prison populations.  Mr. Bates agreed, adding it will 
depend on what the Legislature does on the other end of the crime spectrum (i.e., 
increasing mandatory sentences, removing the possibility of parole for some 
crimes).  Mr. Bates told approximately 34 percent of the prison population is made 
up of those convicted of violent crimes, with an additional 13 percent made up of 
sex offenders.  This leaves almost 50 percent in prison for property, driving under 
the influence (DUI), and drug offenses.


Senator James reminded Mr. Bates that burglary might be included in the list of 
category-one offenses and since this crime contributes 14 percent of the prison 
population, he should consider it in his forecasts.  Mr. Bates also offered the 
subcommittee his opinion that there is some misapplication of probation, offering 
as an example child abuse, which is probationable, and Subsequent DUI in 7 years 
which is non-probationable.  The members agreed with Senator Washington 
speculation that such discrepancies are the result of the "piecemeal" approach 
usually taken by lawmakers.  The chairman thanked Mr. Bates for his time and 
assistance and asked him to return with the requested figures, if there is sufficient 
time before the next hearing.  There was some further discussion with Mr. Bates 
regarding the subcommittee's request.  Senator James promised to support Mr. 
Bate's request for an additional staff member to compute these figures.  

Mr. Graham asked to be excused from the hearing, but first he introduced the next 
witness.   Patricia Erickson, Attorney, Criminal Defense, took the floor to address 
her concerns regarding the proposed habitual criminal statute.  She emphasized her 
support for avoiding mandatory minimum sentences and thereby retaining the 
discretion to the sentencing judge.  She said it is her experience in court that judges 
are not sentencing violent criminals lightly.  She said the judges are sending these 
convicts to prison.  Even people who are convicted of child abuse, as the 
committee was discussing earlier, Ms. Erickson explained, can show a judge, 
through continual contact, that they are extremely unlikely to repeat any such 
offense.  The judge can make a determination that such a person should not 
necessarily be sent to prison, and certainly not for life, she said.  

Additionally, Ms. Erickson noted, there is the issue of rehabilitation, which can and 
does occur.  She offered the committee an experience of her own as an example, 
where a young man she represented went from an 18-year-old "couch potato," 
with no interest in school or any other activity, to someone who is very interested 
in improving himself through education, and who is planning to be a more 
productive citizen upon his release from prison.  This young man has a great 
potential, but with mandatory minimums, he will not be productive for a very long 
time, she stated.


The chairman countered that the committee has heard testimony from the families 
of murder victims, who feel these people should never be released.  Senator 
Washington noted there are extreme feelings on both sides of the issue.  Senator 
James added, while he understands her feelings when considering lesser crimes, 
like some of the drug mandatory minimums, he could not readily agree when 
considering the capital murder cases.  He outlined for the witness some of the 
concerns the Legislature has with the sentencing system in the state.

Senator Adler explained the intentions of the committee as wishing to impose 
realistic punishments for the various crimes and then requiring those sentences to 
be served without a lot of credits or reductions, making it more comprehensible to 
everyone.

The witness said the problem with federal mandatory minimums is the judges 
cannot impose a sentence they feel is fair.  Senator James emphasized this is the 
same problem in Nevada as law now stands, because judges cannot figure out 
exactly how much time the criminal will actually serve of any sentence they might 
impose.  Ms. Erickson stated her real concern is that many of the crimes might be 
made non-probationable.  She reiterated her feeling there are instances, rare as they 
might be, that someone really should not go to prison, even for some of the more 
serious crimes.

The chairman thanked the witness, stating he understood her concerns.  Senator 
Washington asked the chair if he could offer a recommendation.  The chairman 
agreed.  Senator Washington offered the committee a copy of the North Carolina 
Sentencing and Policy Advisory Commission report (Exhibit E Original on file in 
Research Library).  He asked the subcommittee to consider its contents, noting 
there are many aspects it considers that are similar to the concerns before the 
committee, including crime classification, a point system, minimum and maximum 
sentence recommendations, allowances for judiciary discretion, diversionary 
programs, etc.  The senator noted that North Carolina has formed a county 
advisory commission, which is assigned to solicit grants from the state to fund 
some of their programs.

Senator James agreed the committee should include the report with the other 
information before them.  He pointed out the committee has already asked the 
state prison personnel to provide statistics and recommendations.  He asked 
Senator Washington to review the report and "pull out the most important things" 
the subcommittee might insert into the truth-in-sentencing bill.  Senator James 
asked Senator Washington if he would present his suggestions before the entire 
committee at a subsequent meeting.  Senator Washington agreed to make the 
presentation.

Senator Adler wished to caution the subcommittee that it is possible to "get too 
technical, and outsmart yourself," ending up with a system that may work 
mathematically, but is impossible to implement.  Senator Washington added and 
Allison Combs, Senior Research Analyst, confirmed, that North Carolina has 
computer software that deals specifically with making internal changes in the 
sentencing system, and it can make instantaneous projections of how a change in 
sentence is likely to affect the prison population over the next 20 years.

Senator James noted the prison administration has requested an additional staff 
position in order to assist in providing the necessary projections to the committee. 
 


He stated he feels this request should be supported by the committee.  Other 
subcommittee members agreed.

There being no further business, the subcommittee adjourned at 3:05 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 15, 1995
Page