MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session March 21, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:30 a.m., on Tuesday, March 21, 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 Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee COMMITTEE MEMBERS ABSENT: Senator Jon C. Porter, Vice Chairman (Excused) GUEST LEGISLATORS PRESENT: Assemblyman Jeannine Stroth Assemblyman Richard Perkins STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Ben Graham, Chief Deputy, Clark County District Attorney, Legislative Representative, Nevada District Attorneys Association David Sarnowski, Chief Deputy Attorney General, Office of Attorney General Scott Freeman, Vice President, Johnson's Sporting World Fred Griisser, Nevada Liaison, National Rifle Association of America Jim Michelson, Citizen John Wesley Riggs, Sr., Citizen The chairman opened the hearing by discussing the work of the Legislative Commission's subcommittee which studied a law requiring district attorneys and public defenders to report types and dispositions of cases that pass through their office. This information that is provided has been found to be inconsistent from county to county, he said, and is of very little use to the Legislature because of this inconsistency. It is, therefore, necessary to develop new requirements and revise the form of the reports, the senator told the committee. This revision will be the subject of subcommittees which are to be formed from both the Assembly and Senate Committees on Judiciary, Senator James explained. He formed the subcommittee as follows: Senator Lee, Senator McGinness, and himself (Senator James). The subcommittee will work together to formulate a bill draft, which will be reported to the committee as a whole. SENATE BILL (S.B.) 245: Prohibits state board of pardons commissioners from commuting sentence of death or life imprisonment without possibility of parole to sentence allowing parole. Senator James opened the hearing on S.B. 245. This bill was requested by the senate subcommittee which worked on the truth-in-sentencing legislation. It was determined this legislation is an important part of the truth-in-sentencing issue, one which could be handled separately and quickly by the committee as a whole, he stated. The chairman noted the bill originated from discussions with district attorneys, and after reviewing it as drafted, they have requested the bill be amended to only cover murder crimes. The logic behind the request is, if prosecutors and judges can be assured a life sentence is truly a life sentence which cannot be overturned or reduced, they will be more willing to ask for the life sentence, rather than going for the death penalty, which is extremely expensive to bring to fruition. Historically, it has been very difficult to carry out a death sentence in Nevada: there are many obstacles, including multiple appeals, which inhibit the carrying out of the death sentence, the senator testified. This situation points to the need for an effective life without the possibility of parole sentence. The chairman called on Ben Graham, Chief Deputy, Clark County District Attorney, Legislative Representative, Nevada District Attorneys Association, to address the committee regarding the bill's intent and any suggested amendments. Prior to Mr. Graham speaking, however, the senator stated, "unless anyone has any serious objections, I think we are going suggest...that this just deal with murder crimes." Senator Adler commented this is his desire, and it is his recollection they had made that request originally. Mr. Graham told the committee there has been extensive discussion among district attorneys and with the attorney general, and the upshot of that discussion is a preference for the bill to address only first degree murder. Two areas that also fall under the sentence of life without the possibility of parole are habitual criminal and sexual assault with substantial bodily harm, he said, and these are two distinct areas from first degree murder, that could be addressed in other legislation. Support for this bill comes from the district attorneys, because of the expense and difficulty of "getting a death penalty case on, where you must have aggravating circumstances, which are not outweighed by any mitigating circumstances," the witness testified. There are situations where the prosecutor will seek a death penalty conviction because he wants to be assured the least he will receive is life without the possibility of parole, Mr. Graham explained. The death penalty cases are very expensive; in most cases the defendant is indigent and the state must provide two appointed attorneys for the defense, and the investigation required by the defense is much more than might be needed in other cases, he stated. This does not even include the appeals, automatic and otherwise, that will follow a conviction in a death sentence case. Mr. Graham noted, "without the death penalty hanging over their head, it would entail less investigation, less defense expense, [and fewer appeals]." The proposed amendment, according to Mr. Graham, would include a request the bill be made retroactive. He opined it could be made retroactive to those people not yet convicted or sentenced, upon the effective date of the bill. This would eliminate any possible litigation engendered by persons who are already sentenced, and who would be affected if the bill were to be retroactive inclusively. From a fiscal standpoint, Mr. Graham estimated there would be no major impact because there are only a few individuals who are pardoned under the current statute. On the other hand, the cost saving in appeals and other state-incurred costs would be in the hundreds of thousands of dollars. Senator Adler expressed his fear the bill is not drafted as requested, that it should include in subsection 2, a reference to the crime of murder; and on page 2, there is a repeal of all the text on commuting a death penalty case. This is not the original intent of the bill draft request, the senator opined, and there might be instances that would warrant a commutation of the sentence. Mr. Graham agreed it is not the intent of those who requested this bill. The cases which were intended to be covered with the bill are similar to those that are reduced from a death penalty sentence to a sentence of life with the possibility of parole, simply for want of an aggravator, both Mr. Graham and Senator Adler affirmed. Mr. Graham expressed his hope the committee understood the intent of the request, and offered to work with the bill drafters to "clean this up." Senator Adler summarized the intent to be if "you get murder one; if it's life without or if it's death penalty, it can't be reduced below life without." Mr. Graham concurred. The chairman, stating his need to review the minutes from previous hearings on the matter, recalled the request was "just for life sentences, so that's probably correct...the bill drafters are probably correct." He said he believed that if the committee clarifies its request, the bill drafters will reinsert the repealed section back in the law. There still remains the question of how a person is pardoned for something they did not do, he said, asking Mr. Graham if he knows what the process is, or what entity would deal with such a situation. Mr. Graham asked to refer that question to David Sarnowski, Chief Deputy Attorney General, Office of the, Attorney General. Mr. Sarnowski responded to the query explaining that in a circumstance where there was new evidence which would show a defendant to be innocent, Nevada law provides for the filing of a petition for writ of habeas corpus. This applies even in cases where previous writs have been entered, and this mechanism would address the issue, he stated. Returning to the amendment, Mr. Graham asked the bill be retroactive to July 1, 1995 with the understanding that it does not affect anyone who has already been sentenced. He reminded the committee there are people who are wanted for murder, are not in jail, and he does not see any reason this should not hang over the heads of anyone who has not yet answered in court. Senator James confirmed the wording in the bill should be changed to read "for a conviction on or after July 1, 1995," Mr. Graham affirmed. Mr. Sarnowski pointed out, for the record: The critical point is that no defendant could claim, substantially or seriously, that they entered their plea upon condition that their attorney told them at some point in the future they would be eligible to appear before the pardons board. If they have neither entered a plea or gone to trial with that mere expectation, I don't think they are in a position to make a viable claim before the courts of some sort of detrimental reliance on the existence of the statute as it now reads. Senator James told the committee he had inquired about the expectation of a pardon, and it is addressed in the letter sent by Stewart Bell, Clark County District Attorney, that an expectation of a pardon is not an expectancy that would give rise to a liberty interest, making the bill unconstitutional. He said he now has the impression the witnesses might disagree or think there is a possibility of such a claim. Mr. Graham, responding to the chairman's inquiry opined that any defendant, who is told by his attorney that taking a plea of life without possibility of parole is a good deal because they might be pardoned, would have no problem recalling such a conversation. This might result in the convict seeking some kind of appellate relief based on that representation, he said, but by not making the law "totally retroactive, we avoid that process, and ... not be in the appellate courts as much." When asked if there is anything further relating to the bill, Mr. Graham confessed his opinion there might be a need to "revisit this in [19]97." This revisiting would be to address the situation of an elderly and ailing prisoner, who while sentenced to life without the possibility of parole, maybe should be released before his death, he explained. This has to do with the fiscal impact that old-age and illness of prisoners has on the prison system. Mr. Graham said he only brings the point up now because he anticipates the subject to come up in future discussions. Mr. Sarnowski predicted there will be a "sizeable population" of old persons, who have been incarcerated for life without the possibility of parole under the new statute, sometime down the line that will have a fiscal impact. Senator Washington asked what the current prison population is for first-degree murder. Mr. Sarnowski offered a "round figure" of approximately 70 people on death row, whose ages range from their 60s to a 16 year-old. He speculated there might be 150 inmates in the system who are incarcerated either on death row or on a sentence of life without the possibility of parole. Mr. Graham offered that a further benefit of this legislation is that if the state is offering a sentence of life with the possibility of parole, the defendant will be more likely to take the offer because he knows it will not get any better by going before the parole or pardons board. There was no further testimony and the chairman closed the hearing on S.B. 245. ASSEMBLY BILL (A.B.) 108: Increases penalty for stealing certain firearms and for possessing certain stolen firearms. Assemblyman Jeannine Stroth and Assemblyman Richard Perkins next presented A.B. 108 to the committee for their consideration. Ms. Stroth told the committee that she and Mr. Perkins are sponsoring the bill as a response to the increase in firearms related crimes. Ms. Stroth's testimony is attached as Exhibit C. Mr. Perkins took the floor and also expressed his concern for the increase of firearm related crimes, especially stolen firearms. He noted, as a police officer he has had lots of contact with individuals in possession of stolen firearms. These are most frequently "Saturday Night Specials" that are not expensive to purchase and, therefore, do not meet the $250 threshold for grand larceny and the concomitant felony charge. As a result, stealing a firearm of this nature carries the same penalty as "shoplifting a candy bar," Assemblyman Perkins stated. The firearm is an implement of fear in our society, Mr. Perkins continued, and this bill is a tool that attempts to reduce the number of illicit firearms on the streets. He opined the gang members he has been in contact with during his police career are well aware that stealing or possessing a stolen firearm "constitutes a very minor crime." Even a person who does not actually commit a violent act, but merely possesses the gun that did, is equally guilty, in Mr. Perkins' opinion. Mr. Perkins admitted there has been some discussion about allowing judicial discretion in section 3, subsection 3 of the bill, but the vote was against a change from shall to may, because it applies only to those convicted of the offense, not those only suspected. He offered to answer questions. Senator Adler asked for a little more clarification of subsection 3, but his concerns are adequately answered. Next, he queried whether a BB or pellet gun would be covered under the definition of the statute. Both witnesses concurred they are included in the definition. This led the senator to question what would happen in the case of a youth who shoplifts a BB gun from K-mart. The Assemblyman replied the common sense approach would allow the police, as well as the prosecutor, discretion in whether or not to charge this crime. It has been shown these weapons can be dangerous and can cause grievous harm, he added, so there may be instances where prosecution would be appropriate. The chairman took the opportunity to note for the visiting legislators there would follow a hearing on another bill which is designed to remove the $250 threshold for firearms in cases of intentional bad-check purchases. This, he opined, ties in with what the assemblymen are hoping to achieve with A.B. 108. Senator James also expressed concern about the BB gun falling into the jurisdiction of A.B. 108. He asked about the discussion which was had in the Assembly when the bill was being heard there. Mr. Perkins noted there were conversations that encompassed this question, with personal experiences relating to "harmless" fun involving BB guns. In cases such as these, the witness said, the common-sense approach is the only answer, as it is nearly impossible to craft legislation that is ideal in every instance. Senator Lee observed that in Nevada there are laws which seem extreme (he offered the example that possessing a single seed of marijuana is a felony), but these laws are applied with great discretion by prosecutors, and he believes this will also be the case in regard to the bill before the committee. Also, he pointed out, a higher possible penalty can be used as a "bartering tool" in the hands of investigators and prosecutors. At this juncture, Mr. Graham was called to offer the district attorneys' view as to the definition of firearm. He said that in a careful reading of the statute, a BB gun or a pellet gun can fall under the definition. He offered there might be some particular exception written into the bill to address any concern about miscarriage of justice. He declared there is strong support for this bill among prosecutors in the state. In recent history, Mr. Graham reported, there has been a "flurry" of groups of young people, traveling around and raising minor trouble. When these groups are rounded up, it is discovered they have in their possession firearms, some of which are stolen, he related. This bill is considered by prosecutors in Clark County as "kind of an early intervention tool to bring the seriousness of these cheap guns to the attention of the violators," he testified, adding, "from a matter of damage, you're just as threatened or just as dead if you're shot with a $75 Jennings as opposed to a $280 fancier gun." He reiterated the support of the police and prosecutors for this bill. As to the definition of firearm, it was the initial opinion of those discussing the matter, Mr. Graham reported, that BB guns and pellet guns do fall under the definition, and there might be a "vigorous prosecutor somewhere worrying about it," but it really does not appear to be a significant problem. At this point, the statutory definition of firearm was read to the committee and discussion ensued about minimum calibers within that definition. Scott Freeman, Vice President, Johnson's Sporting World, came to the witness table and offered an expert opinion that a .177 caliber is easily encompassed with a BB or pellet gun. "This is capable of penetrating the human body and causing death," he further opined, adding property damage can also readily result. Senator Washington asked for confirmation that a pellet gun also has that capability. Mr. Freeman confirmed this. Mr. Graham, in response to Senator Washington's inquiry regarding effectiveness of the bill, stated it will provide an effective bargaining tool with which to influence the young, first-time offenders. Those offenders who are not first-time may feel the effects directly and serve time in prison, he added, but those young first-time offenders are not likely to actually go to jail, but will only have the possibility hanging over their heads. Senator James addressed the committee telling them of other pieces of legislation dealing with juvenile firearm offenses. He said there are proposals pending that would require juveniles to be prosecuted as adults for felony crimes involving firearms. He queried whether those proposals are regarding the use of a firearm only or, as covered by the present bill, for stealing or possessing a stolen firearm. Mr. Graham replied the present bill would not tie into the other pieces of legislation, but those are separate issues. Senator Titus further questioned the witness and the committee regarding previously passed legislation on juveniles. She asked: Didn't we do something...that said if you are convicted of a third offense, that had you been an adult they would have been considered felony, now you're automatically tried as an adult, instead of... Wouldn't that fit with this?" Mr. Graham responded he is not positive. Senator James said the legislation Senator Titus referred to had been indefinitely postponed, however, there was a bill passed that requires a certification hearing for instances such as outlined by Senator Titus, however, it did not automatically certify the youth as an adult, unless one of the convictions is for the use of a firearm. Senator James called for further questions or further testimony on A.B. 108. Fred Griisser, Nevada Liaison, National Rifle Association of America (NRA), took the floor to speak in favor of the bill. He explained the NRA crime strike division has fought for increased penalties for the criminal use of firearms, and they feel the bill is a good vehicle to that end. Mr. Griisser also directed comments regarding the definition of "Saturday Night Special" noting the value of the weapon does not automatically put it in such a category. Following Mr. Griisser, Jim Michelson, Citizen, took the floor to speak in opposition to A.B. 108. The reason for his opposition to the bill is "basically, because you assess values to petty larceny and grand larceny... and you put the item in here, regardless of value." Thus, it appears it is the intention of the Legislature to make a felony out of something that would be considered a lesser crime if the item stolen is a chain saw, or some other item, he explained. He said he feels there are laws against stealing and against writing bad checks that should cover those activities sufficiently. Mr. Michelson also questioned the committee about the age delineation of 14 years of age. He wondered what the reasoning is behind choosing that age for consideration of adult status in the bills mentioned by the committee. The chairman then suspended the hearing on A.B. 108 and moved to hear the next bill. SENATE BILL 227: Provides that issuance of check or draft without sufficient money, property or credit to obtain firearm or deadly weapon is felony. Upon opening the hearing on S.B. 227, the chairman noted there are some concerns regarding the bill, one of which is the bill does not just go to firearms, it goes to dangerous weapons, as well. The statutory definition of dangerous weapon, Senator James told the committee, covers various and sundry items and was written in order to help school districts control their campuses. However, for the use of this bill, the category is far too wide, and leaves open the inclusion of such items as a baseball bat, he noted. Mr. Freeman, who requested the bill, explained he asked for the dangerous weapon definition to be included because he feels it will help avoid the argument against singling out guns. The chairman was not convinced, stating there is good reason, at least in the previous bill, to single out firearms, because people are being "killed in droves" with guns. Mr. Freeman offered, in his experience with his business, "all" of the individuals who come into his business and write him bad checks have criminal records. With the "hassles" that are involved in purchasing a firearm, especially with a check, he opined the chances are the weapon is not going to be used for hunting or fishing, or whatever a civilized use of a weapon might be. Senator James expressed his view the definition is still too wide and asked the other committee members for their thoughts. Senator Washington said if he was going to go to the trouble to "kite" a check he would go for the weapon of choice, a gun, not something that would require a close proximity to be effective. He stated, "I don't know if dangerous weapons are something we need to be concerned with here, if we are going to deal with guns, let's deal with guns." Senator James voiced his agreement with his colleague. Senator Titus emphatically agreed that dangerous weapons should be struck from the bill. She continued, stating: I think we have to be very careful when we talk about going for guns because I see this as a commerce issue, not a justice issue. I doubt very many people, who are going to go out and use a gun in a robbery, are going to go in and leave a trail of writing a bad check. I think these are people who are buying guns for other reasons and they are writing bad checks. And you are asking us to give this kind of business preferential treatment in terms of when a bad check is a felony. I just don't see the same thing between these kind of gun problems and those kind of gun problems. I think these are two very different issues. Mr. Freeman defended his request, citing two cases where the check writers went through the trouble of obtaining false identification, opening checking accounts under the false name, in order to purchase "high-capacity 9 mm handguns." Under these circumstances, the guns are not likely to be used for "self defense in somebody's bedroom drawer," but are more likely to be used for criminal activities somewhere in another area. Senator Titus pointed out there are already other laws which deal with faking identification and bank accounts. Mr. Freeman responded affirmatively, adding it is difficult to get the district attorney to act quickly in cases where bad checks are written, even for firearms. Senator Titus confirmed the witness is the owner of a store which sells guns and asked if he sells other things as well. Mr. Freeman explained he sells a wide variety of sporting equipment. Senator Titus asked if there are cases in which a person went to the trouble of writing a bad check to purchase a gun with which they robbed some other business. She opined the witness would be setting a dangerous precedent to make an argument based on justice for a problem related to commerce. Mr. Freeman was unable to provide any such instances. He stated the individuals who wrote checks to him also wrote checks to five other businesses for the same purpose. Senator Titus observed these activities would already fall into the category of felony. Mr. Freeman stated the problem arises because the checks are written for amounts less than $250 or they are written in different jurisdictions. The senator was insistent the problem is really one of being unable to collect on the bad checks. She admitted that is, indeed, a problem, but she is unsure that S.B. 227 is the appropriate way to solve that problem. Mr. Freeman agreed the non-collection is a problem, but emphasized his concern is if an individual is willing to go to all the trouble he described, the weapons are not being used for legitimate purposes. Senator Washington asked Mr. Freeman what impact the Brady Bill has had on gun purchases, and whether or not a background check would alert the business owner to the fake identification. Mr. Freeman replied Nevada provides an instant check through the department of motor vehicles, and if the identification checks out, there is no reason not to release the gun to the purchaser. Senator James, at this point, admitted he has some ambivalence with the bill, reiterating the need to remove the dangerous weapon reference. However, with the continuing debate before the committee, he said, he is not really sure what should be done with it. He asked Mr. Graham what the problem is with prosecuting bad checks, "is it a problem because we have these guys writing checks to purchase guns, or is it a problem because, as Senator Titus pointed out, they are not able to recover the money?" Mr. Graham stated he is sympathetic with the testimony offered today, noting it could be said the person "stole it with a bad check." He wondered what the difference is between sneaking it out under your coat or writing a bad check. The chairman pointed out the difference is they are leaving a transaction which might provide some way to trace it. Mr. Graham admitted the real problem is with the check process, which is slow and has multiple steps which must be carried out before the police get involved. Mr. Graham also opined this bill would likely fail to meet the needs of the witness. He feared it would not do what Mr. Freeman desires. Senator Washington expressed his understanding of Mr. Freeman's problem, it is not so much he is trying to recoup the money, but more the purchaser used false pretenses to steal a gun. He suggested the committee address the issue, not from the standpoint of a bad check, but from the view of a "stolen gun." He was unable to offer any alternatives, however, noting he is not a legal expert. Referring to Nevada Revised Statutes (NRS) 205.220, Senator James read "every person who feloniously steals," and asked Mr. Graham how a person feloniously steals. Mr. Graham explained feloniously refers to "evil intent." He told the committee, if the person who entered the store with the intent to "put it in your pocket" you have committed a burglary simply upon entering. Senator James pointed out the present statute requires willful intent to defraud. It is the proof of such intent that is so difficult and time-consuming, Mr. Graham said. The chairman called for further testimony. Mr. Michelson again spoke before the committee reiterating his concerns with the bill as those he had put forth during the hearing on A.B. 108. He restated his feeling that it is improper to set firearms apart from other merchandise. John Wesley Riggs, Sr., Citizen, took the opportunity to address the committee offering them a definition of firearm. He took exception to defining spring, gas, or air operated weapons as firearms. He suggested the Legislature needs to reexamine the statutory definition, if the committee wishes to avoid questions about whether or not a BB or pellet gun might be a firearm. There was no further testimony and the hearing on S.B. 227 was closed. The chairman stated his opinion the definition of firearm has been dealt with sufficiently, and it is not his wish to "grapple with that" at this point. He stated he is convinced both BB and pellet guns could be dangerous, but it is possible to rely on the common sense of the police and prosecutors when applying these laws. For these reasons, he said, it is appropriate to make the distinction between firearms and other dangerous weapons that might be stolen. He called for a motion regarding A.B. 108. SENATOR TITUS MOVED TO DO PASS A.B. 108. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.) ***** In regard to S.B. 227, Senator Titus stated: Before making a motion, I'm not in favor of passing this bill, but I do understand the problem. So, I would say that maybe we could get staff to look at it, or get Ben [Graham] to look at it...to see if there isn't some other way of getting at the solution, just as you outlined it, rather than through the check law, or the check process. If you can find some other way, I would certainly be supportive of that. I just don't support getting at it this way, because I don't think it will solve the problem. The chairman agreed, and asked to hold the bill until there is further investigation into a possible solution. A final note of business, Senator James said, is in reference to a presentation made by Mothers Against Drunk Driving on dram shop liability. The presentation requested a bill that would cause dram shop liability, he reminded the members, for the sale of alcohol to a person who is not of legal age to drink. He noted requesting the bill be drafted and brought to the committee, is not an endorsement of the bill, necessarily. He called for a motion to request a draft. SENATOR WASHINGTON MOVED TO REQUEST A BILL BE DRAFTED AS OUTLINED. SENATOR ADLER SECONDED THE MOTION. Senator Adler expressed his view that everyone has a right to have their bills drafted and heard, and this is what needs to be done here. THEM MOTION CARRIED. (SENATOR PORTER WAS ABSENT FOR THE VOTE.) ***** There being no further business, the hearing was adjourned at 10:25 a.m.. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary March 21, 1995 Page