MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session April 27, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:00 a.m., on Thursday, April 27, 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) STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: J. Charles Thompson, Assistant District Attorney, Clark County Richard Gammick, District Attorney, Washoe County Phil Galeoto, Lobbyist, City of Reno, Reno Police Department BILL DRAFT REQUEST 15-1872: Makes various changes regarding sentencing of persons convicted of felonies. ASSEMBLY BILL 317: Makes various changes related to juvenile courts, sentencing, crimes and punishment The meeting began with some announcements regarding the bill draft request (BDR). The chairman noted the previous day's changes have been incorporated into the BDR and it has grown in size to 324 pages. He explained he had met with the Governor's staff to discuss the fiscal analysis and its implications for the budget and the bill. Referring to the Impact Assessment of Truth in Sentencing Proposal on the Nevada Prison Population (Exhibit C) that was submitted by the National Council on Crime and Delinquency (NCCD) he spoke of a "spike in the fiscal analysis in 1998" which does not include proposals for diversion or alternative sentences such as those incorporated into Assembly Bill (A.B.) 317. NCCD will prepare a revised version of the impact assessment, he stated, that will be available prior to the BDR's introduction on the Senate floor. Senator James called on Senator Adler to discuss his concerns regarding the category B crimes. Senator Adler stated he favors taking the various different sentence ranges and breaking them out into categories with 3-20, 2-15, 1-10 and 1-6 year sentences. This would eliminate some of the duplicate categories, which might be considered a "picky" thing, he observed, but it will assist the prosecutors and others who have to work with the results of the bill. The senator noted an attitude that prevailed in another committee which was to leave the bill alone, get it passed, and leave it until the next session to fix the details. Six months after the bill was passed, there was a great outcry from the public as to the categorization. He emphasized the need to consider this, because "sometimes that's where we get the most heat, on the details and not on the concepts." Senator Adler noted one other concern in the category A grouping, which might be addressed by the sentencing commission. This concern, he noted is with having both a life sentence or a term of years as sentencing options for the same crime. This is not done in any other state, as far as he knows, he stated. He concluded, noting it may be possible to correct some of these issues through the sentencing commission, but reiterated his desire to simplify the "bracketing in B to make it a little cleaner." Senator James called for other input regarding the senator's concerns. Senator Washington asked if Senator Adler's proposed changes are for cosmetic purposes or if there is a real practical need. Senator Adler replied it is not cosmetic, referring to "every uniform criminal code in the country" as having the crime categories with only one sentencing option. This change would bring it more into line with the standard uniform codes he has seen, he stated, adding, usually a revamping of a criminal code is to move toward simplification for ease of understanding. Senator Adler agreed that truth-in-sentencing is a good goal, and increasing penalties for violent criminals is one that is shared by the chairman and himself, as well as the other committee members. He opined a third goal is the simplification of the criminal code. Senator Washington stated it is his feeling the committee has reached the goal of simplification, through the categories already devised. He admitted there are a lot of crimes in the B category, along with several different sentence ranges, but this bill was arranged by seriousness of the crime and its violence level. Senator Adler disagreed with this statement, noting that attempted murder carries a penalty of 2-20 years, and the crime of racketeering has a 5-20 year sentence. He noted there are distinctions between crimes in the bill that were not made by the present committee, but by previous Legislatures. He asked why it is necessary to carry these into the new bill, when it is possible to arrange the crimes in a more sensible fashion. Senator Washington opined there is sense in the bill and it has been crafted and revised to simplify the categories. The original proposals contained categories A-J, with subcategories, as well. It was concluded by the subcommittee, the senator told, to combine some of the categories in order to reduce the number of categories. It would be a step backward, he stated, to consider changing and adding categories. He expressed his satisfaction with the current draft of the bill. Senator Adler replied it is not his desire to change very many of the categories. He suggested the sentences that are proposed as 2-10 years should be 1-10 years, and the 5-20 year sentences should be 2-20 years. This would not be a major change he said. Senator Washington countered the result would be various subcategories in the B section. Senator Adler said the total number of changes he is proposing is 10. Senator Titus expressed her appreciation for Senator Adler's concerns. She noted his experience in the criminal justice system, but she stated her feeling that such discussions and disagreements as are going on today illustrate the need for a sentencing commission. She noted the support of former judge Charles Thompson along with other law enforcement representatives, for the commission. The senator suggested that Senator Adler might want to serve as one of the two senators on the proposed commission. Senator James added his main goal for the bill is to instill truth-in-sentencing into the statutes. This required going through the laws and determining how the sentencing would work under a 100 percent truth-in-sentencing "regime." This is what the bill does, he noted, with a "concomitant function" of going through and examining all the sentences and categorize them into groups that are similar in crime and punishment. He opined this bill is a good product, but it will need review over time to adjust and improve its effectiveness. Senator James agreed that Senator Adler has some legitimate concerns which may be addressed by the committee, if they so desire, or they may be set aside until the sentencing commission has an opportunity to examine it. Unfortunately, it was not the intent of the committee to examine the policy behind all the current crimes and punishments. Some changes have been made, when looking at the low-level drug offenses, but this is examination and change is not possible for all and every crime, at this time, he stated. The chairman reviewed further the changes in policy that were made, specifically with the drug crimes, explaining how the crimes were viewed when categorizing them. He asked Senator Adler to bear these things in mind as the hearings proceed. Senator Adler pointed out one or two more areas where he anticipates criticism. He noted he could not offer a solution to the problems. The first deals with the category E offenses with mandatory probation. There will be a few cases, he speculated, where the defendant is charged with both trafficking and possession of controlled substances. In his scenario, the jury comes back with a conviction on only the possession charge, and the judge, under this law, will be required to put the defendant on probation, no matter what he knows of the individual or what evidence may have been brought as to the seriousness of the offenses committed. The judge, Senator Adler opined, will be "angry that he cannot give any jail time." J. Charles Thompson, Assistant District Attorney, Clark County, took the floor to address Senator Adler's scenario. He noted "on a very few occasions, he has seen a jury return a verdict" he disagreed with. He also noted he is unable to recall an instance such as one offered by the senator, but he would be able to address his concerns by making some jail time a condition of probation. This way, the defendant would be in jail for a period of time, even though the real sentence is probationed. Senator James agreed with the witness, noting there had been some research done in regard to that concern. The chairman continued, noting the result of the committee's efforts are quite unique when compared with other states' efforts. The other states have resorted to using guidelines for the judges, which seem to remove too much discretion from the judges. The present BDR has managed to avoid removing this discretion. Mr. Thompson noted his appreciation for that fact, stating judges prefer to have as much discretion as possible, in order to sentence according to the various factors they feel are important in each individual case. In conclusion, the witness offered his support for the bill, as a prosecutor, and a former judge. Senator James called for further testimony on the BDR. He noted Richard Gammick, District Attorney, Washoe County, is planning to testify, but has not yet arrived. The chairman noted there is a hearing on the BDR scheduled for the coming Monday, if necessary. If unnecessary, the hearing will be canceled. Further, he noted it is the committee's intention to introduce the bill on the Senate floor sometime in the following week. He reminded the panel the adjusted fiscal impact statement will be available for examination, and noted fiscal notes have been requested from any and all departments which may be impacted by the bill. Senator Titus asked to introduce another matter, while the committee waits for the next witness. She asked the legal researcher, Allison Combs, Senior Research Analyst, to check whether a recent U.S. Supreme Court ruling about a ban on guns near schools zones would have an impact on the Nevada law which deals with the ban on weapons on school grounds. Senator Adler interjected the Legislature has already dealt with the issue. Senator Titus was not satisfied, and asked Ms. Combs to double check to ensure the state law will remain effective in light of the ruling. Senator Adler noted the law passed by the Legislature deals with the automatic expulsion of students who carry weapons on school grounds. This was amended to allow appeal to the school superintendent for a penalty less than expulsion, he explained. The chairman called a short recess, to await the arrival of Mr. Gammick. The committee reconvened and Mr. Gammick took the floor. He noted he had listened to testimony on the previous day and wished to echo the sentiments and recommendations of Mr. Thompson, made at that time. He voiced his agreement with the changes proposed by Senator Titus, and opined the bill, as it now stands, is a good package. He speculated there will be a need for "fine tuning somewhere down the road," but this will be successfully addressed. Senator James thanked the witness for his support, and asked him to offer this same support when the bill is taken to the Assembly. Mr. Thompson again took the floor to represent to the committee the feeling of Lucille Lusk, Lobbyist, Nevada Concerned Citizens, who had asked to testify, but was not present. Mr. Thompson indicated, for the record, Ms. Lusk had some concern that mandatory minimums might be reduced by good-time credits. Mr. Thompson reported he assured Ms. Lusk this is not the case, that minimum sentences are required to be served, in their entirety. Senator James thanked the witness and promised to discuss this concern with Ms. Lusk at a later time. Senator James recognized the presence of Judy Jacoboni, President, Mothers Against Drunk Drivers, Lyon County Chapter. He offered her assurance that the bill doubles the amount of time in prison for those convicted of a third offense of driving under the influence (DUI). Where their average minimum sentence is currently 7.8 months, they will now have to serve at least 14 months before parole eligibility, he told. Senator Washington took an opportunity to remind the audience that the various victims' rights groups in the state are in support of the measure. He mentioned that Arlene Hayes, Member, Families of Murder Victims, had called him to reiterate her support for the bill, and to question what changes have been made. The senator said Mrs. Hayes expressed a desire to be present to support the bill when it goes to the Assembly. This kind of support represents a "ground swell" that is raising to push the bill forward, he stated. Senator Adler took one more moment to question the bill's specifics. He pointed to category E offense of drug possession by an inmate. In this situation, the defendant cannot be put on probation, he's already in prison, the senator observed. He asked a change be made, in an amendment, which will make category E crimes probationable, except in cases where the person is already incarcerated in a jail or prison. The next witness to speak was Phil Galeoto, Lobbyist, City of Reno, Reno Police Department. He stated: Thank you, senator. For the record, Lt. Phil Galeoto with the Reno Police Department. I apologize. The day that the law enforcement personnel were up here, I waited and waited, and then I got called out to an Assembly hearing, right at that moment. I just want to get on the record that this committee does have the strong support of the Reno Police Department with this bill draft. We have gone through it line by line. I can tell you, personally, I'm responsible for the shift of people who are the oldest group of police officers in the agency, the day-shift people. I don't mean that in the negative sense, these are the guys that have been around doing this as long, or longer than when Dick [Gammick] and I started together on the street 20 years ago. I have a lot of those people that work for me every day. They go out on the street and they confront the individuals that are the repeat offenders. I can tell you that we've discussed this bill. And this,...and again, as Dick [Gammick] mentioned earlier, as a comprehensive package with the Governor's crime bill and your bill. And, you do have the strong support of the Reno Police Department. I've been through several of the hearings with you and the amendments that are being made, and we do agree, and we support you 100 percent. We are here to help you on the Assembly side, also. Senator James thanked the Lieutenant noting: ...law enforcement's participation in this process and your support in the other house is extremely important because you are the ones who, now, if you arrest someone for a violent crime under category B, and that person gets 4 years in prison, you won't see them for 4 years, for sure, again, at all. The lieutenant told the committee of his experiences with repeat offenders who keep showing up, on the street and in the courts. He said, "I can tell you that we've been around long enough, that he and I have put people in prison for murder and then have dealt with them again on the street." He added this occurs more frequently as you move on down through the levels of crime. He observed, "You run into burglars that have been arrested and convicted continuously...." Senator Adler asked the witness if there will be an increase in filing habitual criminal charges against the more violent criminals. The lieutenant told the Reno Police Department's policy has been to pursue repeat offender charges frequently and thoroughly. The senator asked if the prosecutors followed through on these charges. Mr. Gammick reported that Washoe County has dedicated one prosecutor who does the repeat offender cases. There was a successful conviction just yesterday, he reported. Making this law work does require some reeducation and encouragement to the judges, who are sometimes reluctant to impose the life sentence that a habitual criminal conviction carries. But there is a move to educate the judges about the need for such convictions, Mr. Gammick reported. Senator Adler noted he receives many complaints about repeat offenders, especially burglars, who continually repeat their criminal activity. The district attorney noted burglars comprise a group which has been incorporated into the county-wide program, because this crime always carries a potential for violence. The senator offered that burglars are among the group most likely to repeat their offense. The district attorney replied his informal research has revealed that career burglars and robbers do the crime for the thrill, not the financial gain. Additionally, once it becomes a practice or a mode, they do not quit, he observed. Lt. Galeoto expressed appreciation for the senator's concerns. He opined the change in attitude with law enforcement and the judiciary is "a matter of evolution," something that takes time. He noted the Reno Police Department has been working toward the goal for 10 years, with 7 of those in active pursuit of an effective repeat offender program. He added the program is extraordinarily successful, and will continue, even though the federal grant that helped finance the program will expire this year. This concluded testimony on the BDR. Senator James reported he will discuss with the house leadership how best to introduce the bill for a vote. He noted it is his intention to involve as much of the full committee as possible in answering questions on the floor, as necessary, relying on the various areas of expertise held by the committee members. Senator Adler asked when the bill will be available to send to his various constituents and the judges in his district. The response noted the bill will be available the next day. The chairman called for a hearing on the bill to be held the next day, as well as one on Monday, before it is sent to the Senate floor. There was no further business before the committee and the hearing adjourned at 10:05 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary April 27, 1995 Page