MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session March 2, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:30 a.m., on Thursday, March 2, 1995, in Room 224 of the Legislative Building, Carson City, 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 E. Adler Senator Dina Titus Senator O. C. Lee STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Scott Freeman, Vice President, Johnson's Sporting World William Cavagnaro, Lieutenant, Legislative Liaison, Las Vegas Metropolitan Police Department Lucille Lusk, Representative, Nevada Concerned Citizens Ben Graham, Chief Deputy District Attorney, Clark County, Representative, Nevada District Attorneys Association Cynthia Pyzel, Senior Deputy Attorney General, Representative, Mental Hygiene and Mental Retardation Division George Kizer, Medical Director, Department of Prisons The first order of business before the committee was discussion of the subcommittee on truth-in-sentencing progress. The chairman told the entire committee that one of the things identified by the subcommittee as an area to address straight away is crimes that are punishable by life without the possibility of parole. The proposal is to remove such crimes from the purview of the pardons board, thereby disallowing the possibility of the board commuting the sentence to life with the possibility of parole. He asked the committee for a bill draft request to address that issue. SENATOR WASHINGTON MOVED FOR A BILL DRAFT REQUEST. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR ADLER AND SENATOR TITUS WERE ABSENT FOR THE VOTE.) ***** SENATE BILL (S.B. )227: Provides that issuance of check or draft without sufficient money, property or credit to obtain firearm or deadly weapon is a felony. The chairman opened the hearing on S.B. 227 and called the first witness. Scott Freeman, Vice President, Johnson's Sporting World, took the floor and explained to the committee the reasoning behind this bill. Currently, the law and the prosecutors in the state address most bad checks as non-sufficient funds checks, which are diverted to a check diversion program sponsored by the district attorney and law enforcement offices, Mr. Freeman told the committee. Under the program, if a person makes restitution, it is eventually turned over to the wronged party or business, he said. In this particular situation, the witness continued, the problem is not so much with the money, but rather the purchase of "high capacity handguns" with bad checks. According to Mr. Freeman, it took 4 and « months to get warrants issued for the check writers, during which time it was discovered they had used fake identification, closed accounts, and false or forged credit cards. It was Mr. Freeman's view that obtaining firearms by this means amounts to stealing. It is his hope, he said, that the stronger penalty would "light a fire under the district attorney's office, if it is to happen again, and force them into taking a more direct action without us having to jump through a dozen hoops and chasing it down as a bad check." Further, Mr. Freeman testified, the owner of the business across the street from his will not even file bad check claims with the police because it is such a hassle. Mr. Freeman said, it is a sad state of affairs when a gun can get stolen and a business is not willing to report it to the local police department because it is not worth their time. Senator James called for questions from the committee and Senator McGinness took the floor. He asked the witness if the new requirement for a background check in a gun purchase would have caught the fake identification used by the purchasers. Mr. Freeman replied in the negative, stating while he is not certain, he believes that in Nevada it is possible to get a driver's license with another person's social security card and a credit card. This means provides a false picture identification, in a very short and inexpensive manner, he said. Even the new `Brady' provisions would not uncover this situation. Senator McGinness continued noting that it would also require the person to open a checking account under the false name. The witness pointed out this is not difficult, but would take some time. The persons who wronged him, Mr. Freeman stated, also "burned a total of seven stores between Carson City and Reno for firearms." The senator observed this situation was a "campaign" to obtain guns with false identification. The witness agreed. Senator Porter cited the provision in the bill that requires a person to have three previous convictions for the same offense. He asked if the provision would have helped the witness in the situation he is describing. Mr. Freeman responded, "no....," this bill helps with the local situation, and a push to the district attorney to prosecute the bad checks. Mr. Freeman outlined for the committee the process he must go through in order to file a bad check report with the sheriff. Mr. Freeman made some distinction between the purchase, with a bad check, of a gun and a pair of boots. He implied that a change in the law would somehow prevent the guns from reaching "the street." Senator James noted, there might be some logic in the argument that "if someone is passing a bad check in order to purchase a firearm they probably have some improper motive with the firearm, as well." He asked William Cavagnaro, Lieutenant, Legislative Liaison, Las Vegas Metropolitan Police Department, to address this point, asking whether he supports the measure. Lt. Cavagnaro agreed it is an increasing problem, though Clark County has a county mandated waiting period before the delivery of a person's first weapon. This does decrease the possibility of the situation described by Mr. Freeman from occurring. He also agreed this is a means of stealing a gun. Senator Porter added that this method might even be easier than robbery or burglary and it all looks very official and appropriate. Senator James asked Mr. Freeman if he has examined the language of the bill. He replied affirmatively, adding he would like to see it stronger, but this bill is a start. Under subsection 3, the senator pointed out, a person must have been convicted three times previously under the statute. Mr. Freeman told the senator this language is in response to another experience he had with an individual who bought a gun with a bad check. This man was on parole for writing bad checks previously, and the new language would turn the last time into a felony offense, he explained. This will save him from having to send a demand letter to the man before the law enforcement and prosecutor will review the matter. The chairman explained to the witness the three prior convictions will make the offense a felony no matter what is purchased, and he is not willing to address that issue with this bill. Lucille Lusk, Representative, Nevada Concerned Citizens, told the committee her organization "is very concerned about this bill because we think it sends a message that may be inappropriate." It is the group's view, she said, that when a person willfully writes a bad check, no matter what the purchase, the intention is "thievery." Ms. Lusk and her group feels that setting the purchase of a firearm with a bad check apart from other purchases with bad checks sends the message that firearms are inherently bad. This is not true, she stated. The group would like to see bad checks treated consistently, considering the amount of money, not the the item or purpose for the check. The chairman asked Mr. Freeman how many firearms are valued under $250. He replied there are possibly 24 new guns that can be purchased for under that amount. Then Senator James reviewed his understanding that under current law, any bad check written in an amount in excess of $250 is a felony. He made an attempt to explain to Ms. Lusk what the intent of the bill is. She replied that anyone who is stealing anything has bad intent to begin with. She also pointed out there is not always bad intent when a bad check is written. Many times it is done in error, either by the bank of by the account holder. She suggested the issue here is writing bad checks, not firearms. Senator Washington observed that in cases where bad checks are written unintentionally, most times the writer will try to make some kind of restitution as quickly as possible. Senator James asked if the District Attorneys Association had any comment on the bill. Ben Graham, Chief Deputy District Attorney, Clark County, Representative, Nevada District Attorneys Association, asked to address the bill at another time. The hearing was closed. SENATE BILL 192: Makes various changes related to criminal and civil laws pertaining to sexual deviants. This is the second hearing on S.B. 192, Senator James noted, and there have been suggestions and comments made that makes him willing to consider some amendments to the bill. The chairman called the first witness. Cynthia Pyzel, Senior Deputy Attorney, Representative, Mental Health and Mental Retardation Division, took the floor. She told the committee the department of mental hygiene opposes the bill only in relation to the section dealing with involuntary civil commitment. On the record, she wanted to express two concerns of the division. She stated: The bill proposes a system of involuntary civil commitment for sexual deviants to a secure facility operated by the division of mental hygiene and mental retardation. By definition, sexual deviants are persons with diagnoses of personality disorders rather than mental illness. The current state of the art in the fields of psychology and psychiatry finds that this population of persons is not particularly amenable to treatment. They are particularly not willing to get treatment on an involuntary basis. If you have to commit someone to treatment, the likelihood of any form of success of that treatment is extremely remote. The treatment that currently does exist takes a very long time to administer, over a course of several years. There are states that have such programs-Washington and Minnesota. These states report that a large percentage of people who have been involuntarily committed to the programs for sexual deviants simply refuse to participate in the treatment that is provided for them, often on the advice of their lawyers who wish to discredit the efficacy of such a program. The division is also concerned about the directive in the bill to house these involuntarily civilly committed people in a secure facility. Currently, the only secure facility that the division has is Lake's Crossing Center [for the Mentally Disordered Personality], which is already running at census, and needs to be expanded. The division has put off expanding into building a second forensic facility, such as Lakes Crossing, in southern Nevada because of the sheer expense of such a proposition. While the division wishes the committee to know they understand and appreciate the intent of the bill, Ms. Pyzel noted, they are concerned that if such a program is undertaken, it must be thoroughly researched and carefully developed by experts in the field. Also, she emphasized the necessity of providing sufficient funding for such a program in order for it to be successful and effective, and it is questionable that involuntary commitment of sexual deviants in a treatment program would be the most effective use of the state's funds. Senator Porter asked the witness, based on her statement, what the division suggests. He asked if they are suggesting the Legislature not increase the penalties. Ms. Pyzel stated her concern is that involuntary civil commitments might not be the best option. She noted there are involuntary civil commitments currently used for people with mental illness and they are used to protect the individuals with the illness, as well as the public. These commitments are probably the model used when formulating the involuntary civil commitments for sexual deviants, but problems arise because the treatment is not "happening, it is more a very expensive charade," the witness explained. Senator Porter asked what should be done with the people who do not want to voluntarily take treatment. "Those are the ones who are the problem," he said. Ms. Pyzel reiterated the effective programs are for mentally ill people, and sexual deviants are not mentally ill. Senator Adler asked if the witness meant the sexual deviants are sociopathic personalities who should probably be incarcerated and not placed in a mental health institution. Ms. Pyzel expressed her view since the current state of mental health science does not provide an effective treatment for these individuals, some other form of supervision or control would be more appropriate. Senator James opined the bill is very creative, using models from several states which deals with "enigmatic people who commit horrible crimes." If it is possible to insure that people who commit these crimes would never be in society, a plan for civil commitments would not be necessary, he stated. But, with the system the way it is, they do get released, and there is a need for some alternative, Senator James continued, and he outlined the process through which the provisions of the bill will be triggered. The chairman outlined the contents of the bill which include: life sentences for people who commit sex offenses against children; enhanced lifetime supervision for people who get out of prison, as administered by parole and probation; community notification; and expanded testing and criminal histories required for those convicted of these crimes. He stated: "I do not want to see this bill waylaid by a big fiscal note, or an argument between psychologists over whether or not we really can treat these people. So, what I am going to ask the committee to do is, if they will accommodate me, is just take it out. I'd like to see it have treatment and be able to have this option, but I think this bill is too important, and the other parts of the bill are too important to see it get waylaid. So, I think we just take the treatment out, for now. We will put it in a separate bill, and you suggested that maybe it ought to be studied. I would support you in that. ... We leave in community notification, lifetime supervision, lifetime sentences, and all those things, and then we can pass the bill separately. That said, Senator James called George Kizer, Medical Director, Department of Prisons, to the stand. Before Mr. Kizer spoke, Senator Porter asked Ms. Pyzel how many, if any, of the people covered by the bill could be treated. Ms. Pyzel said the senator's question reminded her of a "silly joke,...How many psychologists does it take to change a light bulb?...One, but the light bulb has to want to change." She continued stating it is hard to know precisely what the figures might be, but in the report from Washington, 17 of 29 refuse to participate in treatment, on the advice of their counsel. She speculated this might be in an effort to invalidate the efficacy of the program or to avoid admission about acts they committed. Senator James noted that in television interviews of these criminals, they admit they are glad for the program, because they cannot control the urge or impulse to commit these acts. He said he pointed these out to note the successes that do occur. He then directed his question to Dr. Kizer, asking if sections 5 through 7 of the bill, which require the establishment for the treatment of sex offenders by the director of prisons of a program, would cause much difficulty for him and his department. Prefacing his remarks with the caveat that he is not an expert in the treatment of sex offenders, Dr. Kizer stated he has spoken to the mental health staff and found there is group counseling available for the sex offenders. There is no formalized program, but the convicts do have access to the same mental health counseling that is provided to all convicts. Dr. Kizer, noting he had spoken to Dr. Nelson, the mental health director, reported that studies are "fairly skeptical as far as the outcome for sex offender treatment." He said there do exist subgroups of sex offenders that seem to show more success with treatment, and these groups might be the ones targeted for treatment programs. Secondly, he told the committee, sex offender treatment is not a "constitutional standard," and so, would not be considered a primary health care issue. Senator James corrected the witness, stating with this bill in effect there would be a requirement to provide treatment for sex offenders. Dr. Kizer agreed that it would be a more formalized, rehabilitation program, but it would not be covered under the Eighth Amendment to the United States Constitution. Finally, he confirmed Ms. Pyzel's report that longer term treatment is more effective for sex offenders, and he suggested the program might require some investment by the offender, by way of payment or other cost, so they are more likely to participate toward improvement. Senator Adler stated it is necessary to be careful in drafting the requirements for a mandatory sexual offender treatment program in prison because, "if you mandate it for all sex offenders, and the prison does not deliver that program, it becomes a liberty interest and is the basis for a civil rights suit." He cautioned that it needs to be worded so as not to create a right on the part of the inmates. The chairman reiterated his willingness to amend the bill to either remove the treatment requirement for inmates or to modify it somewhat. He suggested it might be best to wait until further study is done to determine what modalities are best suited for treatment in this area. Dr. Kizer said he feels it might be possible to provide a small, voluntary program. Senator James asked to remove that provision from the bill and include it in the study to be done in determining what works best. He asked the witness to contact the mental health division to find out what their study might entail. He offered, with the support of the committee, to support a study of this area. Dr. Kizer said he would be happy to do as requested and to report back to the committee. Other problems that have been pointed out to the committee in regard to the bill, he said, deal with the listing of crimes included in the sexual offenses. It was suggested the definition of sex offender is overbroad and the chairman asked that annoyance of a minor, indecent exposure, statutory sexual seduction, and maybe open and gross lewdness might be removed from the list of lifetime supervision crimes, (section 3). The senator noted he is not seeking any amendment to the section dealing with community notification, or the makeup of the advisory board. Senator Adler stated he feels the statutory sexual seduction crime should not be included in the list of lifetime supervision crimes. He said there might be circumstances which would justify this sanction, but many more which would not. Senator James suggested the removal of statutory sexual seduction from the list of lifetime supervision offenses, as he stated earlier. Senator Titus asked if the lifetime supervision is activated on the first offense, she would agree with removing the statutory sexual seduction. The chairman noted the enhanced life sentence penalties only apply to battery with intent to commit sexual assault against a child, and sexual assault against a child. He asked the committee if everyone understood the proposed amendments. The members confirmed their understanding, but Senator Titus asked to see the bill, as amended, before it went any further. The chairman called for a motion to amend and do pass the bill. SENATOR ADLER MOVED TO AMEND AND DO PASS SENATE BILL 192. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. ***** There being no further business before the committee, the hearing was adjourned at 10:30 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary March 2, 1995 Page