MINUTES OF THE SUBCOMMITTEE MEETING OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session February 23, 1995 The subcommittee meeting of the Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:55 a.m., on Thursday, February 23, 1995, Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. SUBCOMMITTEE MEMBERS PRESENT: Senator Mark A. James Senator Ernest E. Adler Senator Maurice Washington STAFF MEMBERS PRESENT: Jan Needham, Senate Bill Drafting Advisor Allison Combs, Senior Research Analyst Marilyn Hofmann, Committee Secretary OTHERS PRESENT: Glen Whorton, Classification & Planning Specialist, State of Nevada, Department of Prisons Ben Graham, Nevada District Attorneys Association, Office of the Clark County District Attorney Senator James provided the subcommittee members with a Proposal for Truth-In-Sentencing Legislation, which is attached hereto as Exhibit C. He reviewed the contents of the proposal for the benefit of the subcommittee and those in attendance at the hearing. Senator James referenced part 1, stating a life sentence "without possibility of parole" can be reviewed by the pardons board, resulting in a sentence of "life without" actually amounting to approximately 10 years in prison, or 20 years, depending on when the sentence was handed down.. With respect to part 3, "Non-violent Crimes and Certain Drug Crimes," Senator James indicated he had received statistics which were "revealing" as to how profoundly the prison system would be affected. He said they could provide, with respect to certain types of crimes in this category, that the judge would not have the option of sentencing the defendant to prison. Senator James referenced the section on "White Collar Crimes," and stated "white collar criminals" would be treated differently than other offenders, although they prey on society. He said if a "white collar criminal" is sentenced to prison and then paroled, unlike most violent offenders, that criminal can be supervised and tracked while being a productive member of society, making it possible to pay restitution to his or her victim. Senator James indicated the proposal was "flexible" and would require input from the members of the subcommittee and the public. He set forth his desire to transfer the proposal into a form which would result in a bill draft, so the provisions could be more closely analyzed in terms of fiscal impact. The first to appear before the subcommittee was Glen Whorton, Classification & Planning Specialist, State of Nevada, Department of Prisons, who presented a Memorandum with attached data, set forth herein as Exhibit D. Mr. Whorton stated he had been asked to provide to the subcommittee statistics regarding inmates who had been committed for nonviolent offenses, including information regarding those inmates' sentences. He said the department selected a sample of persons who entered the prison system in the past 12 months, then selected persons with "offense groups" such as property offenses, drug offenses, and driving under the influence (DUI) offenses. Then, Mr. Whorton stated, the data was further refined to exclude certain offenses such as "child selling" and "ex-felon in possession of a firearm." Mr. Whorton indicated the chart listed offenses in the left- hand column, with the sentence across the top of the chart. He emphasized an inmate was only listed once in a sample, and they selected only the most critical and significant offensive sentences, making no assumptions regarding concurrent or consecutive sentences. Mr. Whorton stated the data also made no assumptions about the inmate's prior record. He pointed out each "cell" on the chart indicated the number of persons who were received during the 12-month period. Mr. Whorton indicated the column on the far right, labeled "total," set forth the total number of persons who were sentenced in a particular category of offense, with the column entitled "average" indicating the average sentence, excluding life sentences. Senator James indicated to Mr. Whorton that he needed "more complete data." He said he would like to know how the data presented compared to the prison population with violent offenders not included on the chart. Senator James stated he was attempting to "come up with something as fiscally neutral as possible," and added he was trying to balance the truth-in-sentencing proposal for violent offenders with the elimination of mandatory prison terms for certain other offenders. He said it was vital to "know what the numbers are." Senator James pointed out the largest number of offenses set forth on the chart dealt with "possession of a controlled substance." He said the bulk of the offenders had 3- year terms, with the average time served being 1 year. Senator James added, "A 1-year prison term, [indicates] 400 people in the system all the time." Mr. Whorton responded, "You are correct in your evaluation that they...rotate through the sentence very quickly...taking those people out of the prison may not have a one-to-one relationship in terms of reducing the population." He said many of those persons do not stay a full year in the prison. Senator Adler asked Mr. Whorton if it would help the projections if there were uniform sentencing ranges within each level of crime which has been categorized. Mr. Whorton indicated the model developed by the National Council on Crime and Delinquency (NCCD), which is used by many states in addition to Nevada, "...could adjust that model to replicate that data." Mr. Whorton continued: The things that make assumptions difficult, especially when you are doing modeling in this particular case...if the proposal were put forward you would have these levels, and the judges would assign a minimum and a maximum...our difficulty would be in assigning...what would judges' decisions be...there is still that issue of discretion...and it is a different process. As you relate that to truth-in-sentencing, what are judges going to do in terms of making those decisions. ... It is not a very scientific process to determine what judges are going to do with those people, given your scheme. Senator Adler stated the narrower the ranges, the less chance there is for error. Mr. Whorton said the "most predictable system" would be one which had a narrow range of sentences, no good time credits and no parole or pardons board. Senator James said he had reviewed many studies on this subject matter, which included information on many different types of sentencing, including sentencing guidelines which are much the same as a having a narrow range, because the judges are limited as to what they can do. He said this would increase predictability as far as producing data, but would limit a judge's discretion. Senator James asked, "Should we be driven by trying to do something that is predictable in terms of the numbers game and the fiscal aspects...or should we try to do something that is the best for the criminal justice system?" He indicated that he does not believe using the guidelines "is the way to go" and that the federal guidelines do not work well. Mr. Whorton indicated the argument could be made both ways. Senator James stated he has become convinced that "...it is not necessarily correct to choose one sentencing structure for the entire system." He said the proposal would preserve the indeterminate system which allows persons to be freed earlier for certain crimes, while using a different system for violent crimes. He asked Mr. Whorton if he could obtain data "on the entire prison population," by taking a specific date and obtaining data on "every single, solitary person that is in there, what they did to get there, how long they have been there, how long they are scheduled to be there...comprehensive data on the entire prison population." Senator Adler referred to Level II offenders and asked for data regarding averages on minimum and maximum sentences. Mr. Whorton answered they can only make a "best case assumption" regarding persons who are going to be discharged, and would need to know whether Senator Adler was interested in just discharges or parole taken back to the retroactive sentence date. Senator Adler indicated he was interested in the data for 1994 calculated as months served. Senator James reiterated he would like a census of the prison population as set forth above. Mr. Whorton responded they could simplify the process by placing the information into "the already defined categories, i.e., violence, sex, property, DUI and other offenses, then give a distribution of sentences within those categories." Senator James indicated he had that information and added, "One of the things I asked you for...everybody in the prison system who is there for a first or second time drug offense...everybody who is in there now for that type of crime." Mr. Whorton answered they could do that for the "stock population" for every offense. Mr. Whorton asked Senator James: In your discussion about your proposal, you indicated that statutory good time credits would apply toward discharge on the maximum, but not applied to parole eligibility on the minimum...could it be explicit in the bill draft as to whether or not credits earned prior to that minimum apply toward the discharge? Senator James replied that was his intention. He added he did not believe they should eliminate the incentive to earn good time credits during the time they are serving minimum time. Senator James stated during the time a prisoner was serving the minimum sentence, two things would be occurring: "(1) statutory work time/good time credits would be accruing against the maximum term; and (2) the inmate's overall conduct would be relevant to the parole decision." He said under the proposal, "We don't have a whole bunch of people in there serving minimum time with no incentive to behave." Senator James stated he was not interested in eliminating parole, because if a person is paroled in one-half the time he was sentenced to serve, "...the fact you have him under supervision for another four years is very important for society." Senator Washington asked: Isn't it possible...[to have] a prerelease program by parole and probation...making it mandatory that a prerelease program be implemented prior to the inmate leaving prison...and upon his release, apply it toward his parole sentencing. I think we should incorporate this into the legislation, instead of having a separate bill...so there is some coordination between parole and probation and the correctional facility...." Senator James and Senator Washington discussed the fact that there was legislation developed in this regard. Mr. Whorton stated he had not seen such a bill but believed parole and probation runs a prerelease program in the institutions at this time. He said it was basically a "life skills" program which was now voluntary. Senator Washington indicated what he was discussing would be mandatory. Senator James stated the task which needed to be completed was to "plug" the crimes into Parts I, II and III of the proposal, utilizing the information which they have, together with information provided by Ben Graham. He asked the subcommittee members to assist him in this project. Ben Graham, Nevada District Attorneys Association and Office of the Clark County District Attorney, asked to speak to the subcommittee. He said he wished to discuss the matter of "life without the possibility of parole." Mr. Graham stated he felt there would be a significant decrease in requests for death penalty cases, with an approximate saving of $35,000 to the county, because there would be no requirement to have two attorneys to prosecute a case. He said there is also a large cost involved in the appeal process of a death penalty case. Mr. Graham indicated the proposition regarding "life without the possibility of parole" was exciting and he would support the concept. Senator Adler stated the subcommittee needed to examine the lists provided to them and "figure out the sentencing ranges...it has been done piecemeal...they need to be put into a category II range, whatever that range is...this is the opportunity to do that." Senator James stated the idea was good, but if it would "drag down" the present truth-in- sentencing proposal, he would rather see it be done as a separate bill. Senator Adler said under the current system., "...you get into a big game as to what class [part] II offense they will be charged with...if we made it more uniform, the district attorney would charge the most applicable offense..." Senator James responded he believed Senator Adler's suggestion was valid with respect to the part II offenses. Senator Washington agreed and indicated he would assist in the development of this part of the project. There being no further business to come before the subcommittee, the hearing was adjourned. RESPECTFULLY SUBMITTED: _____________________________ Marilyn Hofmann, Committee Secretary APPROVED BY: _________________________________ Senator Mark A. James, Chairman DATE: __________________________ Senate Subcommittee on Judiciary February 23, 1995 Page