MINUTES OF THE SUBCOMMITTEE MEETING OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session March 1, 1995 The subcommittee meeting of the Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:45 a.m., on Wednesday, March 1, 1995, in 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: Allison Combs, Senior Research Analyst Marilyn Hofmann, Committee Secretary OTHERS PRESENT: Glen Whorton, Classification & Planning Specialist, State of Nevada, Department of Prisons Robin Bates, Chief, Classification & Planning Division, State of Nevada, Department of Prisons Larry Hyde, Professor Emeritus, The National Judicial College, representing American Civil Liberties Union of Nevada Senator James announced the purpose of the subcommittee meeting was to take further testimony regarding truth-in-sentencing laws. He said Senator Washington had developed a working document which was a preliminary categorization of all felonies in Nevada. Said document is attached hereto as Exhibit C. Senator James indicated the subcommittee would now be studying the range of sentencing for each felony. He reminded those present that it was the committee's intention to be fiscally responsible in the development of truth-in-sentencing legislation. The first persons to speak were Glen Whorton, Classification & Planning Specialist, State of Nevada, Department of Prisons, and Robin Bates, Chief, Classification & Planning Division, State of Nevada, Department of Prisons. Mr. Whorton provided the subcommittee members with a Memorandum, dated February 28, 1995, together with attached data, set forth as Exhibit D. He indicated they had attempted to present the data requested by the subcommittee in as concise form as possible. Mr. Whorton stated the Department of Prisons had evaluated the current sentence of every inmate now serving time in prison. He said no analysis was included regarding inmates who had been paroled and returned for violation of parole. Mr. Whorton also said the analysis did not include data on consecutive sentences the inmate may yet serve. He specified the data included only "the significant current offense the inmate is serving." Mr. Whorton said the data was divided into six groups and explained their evaluation of offense groups is based upon the inmate's current offense only. He said previous information and statistics provided to the subcommittee regarding offense distribution by groups will be different. Mr. Whorton explained: Mr. Whorton explained the chart listed the offenses on the left hand side of the sheet, with one sheet for each group of offenses. For instance, he explained, on the property offender sentence data, the first one is burglary, followed by attempted burglary. He said under each of those catagories, the first number in the cell indicates the frequency of the people serving an offense of burglary, with the sentence set forth across the top. Mr. Whorton explained the first number underneath, labeled "served" is the amount of time the prisoners have served in years from the retroactive sentence date, i.e., their sentence date, subtracting the kind of jail credits they have been provided by the judge. Senator James indicated that does not take into account the time served in jail and Mr. Whorton responded they took the the sentence date minus the county jail credit to arrive at the date. He stated the next figure, "board" indicates the amount of time in years until the inmate's next parole board eligibility. He emphasized it referred to the next board eligibility, not the inmate's initial parole eligibility. Mr. Whorton emphasized In some cases as the subcommittee reviewed the data, they would see inmates with relatively long sentences and a relatively short time until their next parole board hearing. Senator James inquired if parole hearings were held prior to eligibility, and Mr. Whorton replied they were not. Senator James pointed to the data which indicated there were a total of 505 people serving time for burglary. Mr. Whorton stated the average sentence for those persons was 6.29 years, with an average served time of 1.76 years. Mr. Whorton explained the figures for mandatory parole release (MPR), which is the amount of time in years until the inmate's eligibility for mandatory parole. He indicated the last figure represents the average amount of time in years until discharge of the sentence. Mr. Whorton emphasized that the board and MPR dates sample figures were different than the sample for frequency and discharge, because there are many persons who are serving a sentence but have no parole eligibility date, because they have been denied discharge by the board. He stated, "What you see here on the averages of each cell is the average time to board for those people who do have board eligibility, or in the case of mandatory parole release, the average time to mandatory parole release eligibility. Mr. Whorton pointed to the far right column of the sheets, which contain a total average figure for sentence, average figure for time served and average figure for discharge. However, he said, they have not provided an average for board and mandatory parole release, because the samples are different, which would confuse the issue. Mr. Whorton indicated another finding set forth on the charts involved life sentences, and said the averages of time served and the discharge "add up to more than the sentence, or very close to the sentence...which would seem not to have any allowance for good time credits." He said the calculations on the far right of the sheets for sentences do not include the average sentence for life imprisonment and added, "We don't know what life is at that point...." Senator James asked if the figures presented indicated the average amount of time a prisoner would serve before discharged. Mr. Bates responded they had with them a document which would indicate the time before "first release on a sentence." That document is attached hereto as Exhibit E. Mr. Bates indicated the figures contained on that exhibit represent a 12-month period. He said he believed a 12-month sample would give the subcommittee "a good picture of how much time people are serving until their first release." Mr. Bates explained the chart, using as an example the first cell on page 1 of Exhibit E: "One person who was serving a 1-year sentence for robbery, served 20 percent of that sentence before he was released." Mr. Whorton pointed out the chart did not make any distinction between consecutive sentences, nor any distinction between a parole release and a discharge. Senator Adler pointed to the figures and said it appeared most of the prisoners sentenced for robbery served approximately 50 percent of their sentence. He added, "This idea that everybody is doing one-third is not exactly accurate." Mr. Whorton indicated the figures in the far right-hand column of Exhibit E showed the average time served for all crimes on page one of the document was 44 percent. Senator James asked what 12-month period the sample covered, and Mr. Bates answered it was based on the period January 1994 through January 1995. He also indicated the sample covered approximately 2,900 releases and was representative of the average time served for various crimes throughout the state. Mr. Bates indicated if he were to present a 3-year sample, it would show a similar average time served to first release. He added good time credits were not factored into the sample. Mr. Whorton clarified: "For an individual who was released...whether on parole or discharge...we subtracted the date he started his sentence from the date he was released...that is all we calculated." Senator Adler indicated in certain instances the person would earn good time which would affect his release date, and Mr. Whorton agreed. Senator Adler stated if the calculation was based on when the inmate arrived and when he was released, good time would be included. Senator James referenced the statistics set forth for life sentences and stated, "Based on this sample, in Nevada, the average time for a life sentence for kidnaping is 9 years." Senator Washington pointed out the average time served for first degree murder was 10 years. Mr. Whorton agreed, but added: "You need to understand these statistics are only for persons who have been released...we have people serving life sentences who have been here since 1957." Senator Adler stated it appeared for crimes such as burglary, that the longer the sentence, the less percentage of time was served, and the shorter the sentence, the greater percentage of time was served. He suggested perhaps the sentencing range could be "flattened out" with minimums and maximums established, since it appears the system adjusts the sentences to a "median" in terms of actual time served. Mr. Whorton indicated in many cases, a person with a short sentence serves a longer percentage of time, simply because of the length of time involved in the parole process. Mr. Bates added some inmates are eligible for parole the day they enter prison, because of the jail credits they have earned. Senator Adler stated, "That is not a tremendously good use of state and county resources...." He asked a question regarding the cost of intake for a new inmate, and Mr. Bates answered $2,000 to $3,000. Senator James asked: "When you have to calculate prison populations...what the prison population is going to be in the future...how are you able to do that from existing data and existing sentencing information?" Mr. Whorton answered the state has a contract with the National Council on Crime and Delinquency (NCCD), which develops population projections. He said that organization models three populations as follows: (1) intake, using information provided by the State of Nevada regarding characteristics, sentences, and the offense; (2) stock population, using the same type of information; and (3) paroled population. Mr. Whorton explained the information is compiled for the computer model by looking at the three groups and compiling data such as what the offenses are, what the sentences are, and what the probability of parole by hearing is, i.e., how many times the inmate goes to the parole board. He said the data also includes information on the probability of discharge the probability of having consecutive sentences, taking into consideration the type of sentence and the length of sentence. Mr. Whorton stated this data replicates the passage of an offender through the correctional spectrum to parole, taking into account the good time range. He added the model either gives the inmate parole or denies parole, and if parole is denied the computer data assigns a denied wait time based upon the probabilities of actual performance of the parole board over the last year. Mr. Whorton said an inmate is paroled, "...it takes him out of the prison...and for the remainder of the sentence...at some point there is the probability that the person will either discharge their parole or violate." He added the system is very complex, requiring a tremendous amount of data. Mr. Whorton stated this type of model was originally developed for the state of California to model the impact of the same type of process which is being considered by the judiciary committee, i.e., revision of the criminal code. Senator James asked, "If we were to pass legislation that would go through all these violent crimes and set mandatory sentences...which would then allow a sentence beyond that, which could be reduced by parole or sentence- reducing credits...would your system then be able to analyze the effect of that on your prison populations?" Senator James referred to Exhibit E and questioned whether an "average sentence" was set forth in the figures relating to each crime. He indicated from looking at the figures set forth that if the average percent of a sentence served, as an example, a 10-year sentence for assault with a deadly weapon, is 52 percent, and the committee were to set the minimum time served for assault with a deadly weapon at 5 years, there would be no impact on the prison system. Mr. Whorton replied that average of 5 years includes sentences that were less than 5 years. He added, "What you are going to do is set people on the high end of the spectrum...and there will be an impact...because you are cutting off the lower sentences that went into that average." Senator James stated there would not be much room for argument concerning the numbers provided in the data concerning the percentage of sentences, but added: "Your life would be made simple...if we set a 5-year sentence [for a crime]...but we can't do that. We have to give the judges some discretion." He asked how they could "fit judges discretion" into the model. Mr. Whorton responded the present model would not allow for that mechanism and would have to be redesigned. Senator James asked Mr. Whorton if he could indicate "the average sentence served [for each offense]." He gave as an example, assault with a deadly weapon and indicated if the average time served was 7 years, setting a range from 5 to 10 years "would be setting a range right around where it already is...." Senator James added that would cause no fiscal impact. He then referred to a situation where the Legislature believes not enough of a prisoner's sentence is being served. He said they could then raise the minimum time to be served and the fiscal impact would be clear, since "everyone who was in there would be serving that much more time under the new sentencing criteria." Senator James added: "If you could give us the average sentence served, we will know as we make our decisions, where we will be hitting the future budgets of the state...each time we make a decision on what the range is going to be." Mr. Whorton responded each change considered would have to be provided to the NCCD so each change could be modeled to determine exactly what the impact would be. He said his department would not be able to provide the answer to Senator James' question. Senator James reiterated it would be helpful if he could be provided with figures as to the average sentence served until first release for each crime. He said all the proposed legislation would do is change the sentencing regime for people who go through the system in the future. Senator James added: " I want somebody to tell me when this fiscal impact everybody is talking about is going to hit us..." He said it has been indicated that to change sentencing laws will impact the budget, and stated: "As far as this budget is concerned, it would have none...zero...is that correct?" Mr. Whorton admitted that was correct. Senator James referred to the "most violent offenders" who appear to be serving 50 percent of their sentences and said, "We aren't talking about huge numbers of people here...those aren't going to show up until they should have [been released] and they are staying in...5 years from October 1, 1995, or whenever thereafter they are sentenced." He added, "We are looking at fiscal impacts which are not immediate...not necessarily the next biennium...not even the next...but the biennium after that...when you talk about 10- year sentences which are now 7-year sentences." Mr. Whorton agreed with Senator James' reference to serious offenders with long sentences. He reiterated it was a "very complex question" and adjustments would have to be made in the projections. Senator James asked if the person who was in charge of developing the models for the NCCD could testify to the committee regarding average sentences. Mr. Bates indicated to Senator James that Exhibit E provided the information he was seeking. Senator James responded he could use the figures in order to develop an average. Mr. Whorton stated: "You would like us to provide an average sentence and an average time serve on that sentence." Senator James stated one chart set forth the average sentence meted out by the judge and one set forth the average time the inmate has served to date. Mr. Bates responded they would provide the requested figures. Senator Adler stated, "Sometimes the median is more significant...if the ranges were compressed, you would want to cut off the top 10 percent and the bottom 10 percent, and then make a determination from the center of the range." He also indicated the median ranges for robbery were from 3 to 15, whereas if all ranges were included, it went from 1 to 20. Senator Adler continued: "If you were to look at the minimums and maximums for robbery, you could throw out the top and bottom end and have 3 to 15 as the real range...." Senator James made two suggestions, i.e., increase the statistical sample beyond 12 months, and provide a "median" and a "mean" so both could be studied. Senator James stated studies show "consistency in sentencing" is one of the most important things to have in order to further the ends of justice. He said that is why the subcommittee is studying ways to "push these into a range that brings the predictability into focus...so you don't have one guy serving a 1-year term for robbery and one guy serving a 20-year term for robbery." Senator James complimented Senator Washington on the development of his report (Exhibit C) which categorizes all felonies in the statutes. He said that document would be used by the subcommittee to develop the range of sentences. Senator James stated they had asked judges and prosecutors to indicate what amount of time a person should serve for a given crime. Then, he added: We look to you [the Department of Prisons] to compare how that compares with what we are actually doing in Nevada now...based upon time served...so we can put into law what the Legislature thinks a person ought to serve for a certain crime. When we have done that, I would imagine we will have a scheme which will be drafted into a bill...then [the NCCD] can begin looking at those...and plug them into the more sophisticated models you are talking about, and tell us what they mean in terms of fiscal impact down the road.... Mr. Bates indicated he would provide a 12-month sample to the subcommittee by the end of the week, with a 24-month sample taking longer. Senator James thanked Mr. Whorton and Mr. Bates for their input and indicated they had been tremendously helpful. The last person to speak was Larry Hyde, Professor Emeritus, The National Judicial College, representing the American Civil Liberties Union of Nevada. He stated he was also speaking on his own behalf, since he had been involved in sentencing issues for 30 years, first as a sentencing judge and through his tenure with the National Judicial College. Professor Hyde said through the college they had dealt with judges' problems in sentencing, which involves the most difficult decisions judges must make. He said there were three types of people who appear before judges to be sentenced: (1) "The ordinary citizen who has made a stupid, serious mistake." Professor Hyde said that person does not need to go to prison, since he has already "been corrected" by the process of being caught, arrested and disgraced; (2) "The wise guy...the one who is smarter than everybody else." He said that person needs a long sentence, because "...as soon as he gets out, he is going to do it again."; and (3) "The screw-up," the person who never did anything wrong (in his or her view) and feels it is always somebody else's fault. Professor Hyde said diversion of various kinds works for that type of person very well. Professor Hyde stated, "The more you do to narrow the sentencing discretion, the more you waste valuable resources putting people in prison for whom that is not necessary...therefore not having space to put the wise guys in...." He asked if the subcommittee had considered the concept of sentencing guidelines utilized in Florida. He said the state of Florida had developed the same type of studies being used by this subcommittee asking, "What is the actual time served by a person...taking into consideration as many factors as possible...." Professor Hyde stated the state of Florida then set the guidelines that way, which resulted in no fiscal impact on the prison system. He said this was done with guidelines which left room on either end so the judge could "go outside the guidelines in either direction...but only by stating reasons which were not contemplated by the guidelines." Professor Hyde added the sentence "outside of the guidelines" was then an appealable sentence. The result, he said, was that very few sentences were established outside of the guidelines. Professor Hyde stated: "My comments are intended to say that reducing sentencing discretion is a quite worthwhile goal...but I argue that mandatory minimums are not the way to do it." He then asked, "Do longer sentences deter crime? ... If it is not an effective cure, increasing the amount of the cure isn't effective either." Senator Adler asked Professor Hyde if it would be possible to give a judge a minimum/maximum range with discretion within the range. Professor Hyde answered he believed that would reduce the issue of disparity, but added, "What it doesn't do...is recognize the loss of valuable prison space which has to go to someone who doesn't need to go there at all." Senator James indicated what the subcommittee wished to have the legislation propose was to "deal with the most violent offenders." He said the statutes were "full of mandatory minimums...depending on the crime." Senator James added: "Nobody has ever bothered in this state to sit down and make sense out of it all as a document...as a code." He stated there was no consistency or unity nor "...any of those things that the criminal justice treatises...say are important to come up with justice." Senator James reiterated they wished to evaluate the minimum time which should be served for violent offenses. He added, "Frankly, I don't care if they are a screw-up, a wiseguy or a mistake maker...if they commit mayhem, kidnapping, child pornography...we are going to send them away." Senator James indicated he had recently discussed this matter with two judges who indicated to him they have "no idea" what the person is going to serve. He said the judges stated they needed to know when they hand down a sentence that "...that is the amount of time they are going to spend in prison." Senator James stated he respected the fact that Professor Hyde had a "problem" with mandatory minimums but asked, "Isn't it a better system if we...sit here as policymakers and go through this code...and come up with an amount of time we think people should be serving...then leave some discretion with the judges?" He said the range of discretion could be broad for certain crimes. Professor Hyde stated Senator James was "entirely correct" that it was frustrating for judges to "have no idea of what their own sentences mean." He said the proposed system would give judges and defendants a much greater idea of what that sentence means and he was in support of that idea. Professor Hyde stated his concern was both the fiscal impact and the sentencing logic of mandatory minimums. Senator James stated they began this study from "day one" with an acute sense of the fiscal impact and added they were trying to discern when that fiscal impact would manifest itself, if at all. He continued, "Somebody has to make a decision on each one of these crimes...how much time somebody ought to be in prison...I think we should do it...everybody has been not making decisions for too long." Senator Adler stated, "We have all sorts of mandatory minimums...do you think if we give judges discretion...for a minimum sentence...if that is a safety valve?" Professor Hyde agreed it would, but reiterated mandatory prison sentences would use prison space which was better used for more violent criminals. Senator James closed by saying the committee had received data which showed a correlation between incarceration rates and crime rates. He said that data showed that when more persons are incarcerated for a certain crime, the crime rate went down. . Professor Hyde concluded by saying, "The prison system is an excellent education system...it teaches people to be tougher, meaner and smarter criminals." Senator James indicated it makes sense that a person in prison "for an extra 5 years" can't commit another crime during that 5 years." There being no further business to come before the subcommittee, the hearing was adjourned at 10:05 a.m. RESPECTFULLY SUBMITTED: _____________________________ Marilyn Hofmann, Committee Secretary APPROVED BY: ________________________________ Senator Mark A. James, Chairman DATE: __________________________ Senate Subcommittee on Judiciary March 1, 1995 Page