MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session May 4, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:45 a.m., on Thursday, May 4, 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 Marilyn Hofmann, Committee Secretary OTHERS PRESENT: Robert Bayer, Director, Nevada Department of Prisons Carlos Concho, Department of Motor Vehicles and Public Safety, Department of Parole and Probation The Honorable C. Cliff Young, Justice, Nevada Supreme Court David F. Sarnowski, Chief Criminal Deputy Attorney General, Office of the Attorney General, Criminal Justice Division Anne B. Cathcart, Senior Deputy Attorney General, Office of the Attorney General, Litigation Division Albert Peralta, Chief of Inmate Services, Department of Prisons Ben Graham, Nevada District Attorneys Association, Office of the Clark County District Attorney Sergeant Julie Goldberg, Las Vegas Metropolitan Police Department (METRO) Donald J, Mello, Director, Administrative Office of the Courts Senator James opened the hearing with a discussion of the fiscal impact of Senate Bill (S.B.) 416. SENATE BILL 416: M a k e s v a r i o u s c h a n g e s r e g a r d i n g s e n t e n c i n g o f p e r s o n s c o n v i c t e d o f f e l o n i e s . Two charts were distributed to the committee members, the first being the Nevada Department of Prisons Population Projection Comparisons, which is set forth as Exhibit C. The second, showing the minimum projected impact on the total prisons population, is attached as Exhibit D. Senator James stated the committee had gone to great lengths to analyze the provisions of S.B. 416, to be sure what they were doing was "fiscally responsible, along with the policy...in terms of corrections and criminal justice. He said they were using a 10-year projection and "...have looked down the road as to how these changes in the sentencing statutes will affect the prison population generally." He noted that what the committee would normally do with a fiscal note would be to study whether there would be a fiscal impact during the current biennium, and whether there would be a continuing impact in the future. Senator James added, "We have gone way beyond that in terms of trying to be responsible with this crime bill." He said all the information would be available to the other members of the Senate and to the Assembly in order to address their concerns regarding fiscal implications. Senator James stated there would be a fiscal note stating there was no fiscal impact during the present biennium for the Department of Prisons, because through diversions, the number of people in the prisons would be reduced during the first two years of the bill's effectiveness. With respect to the Department of Motor Vehicles and Public Safety, Division of Parole and Probation (hereafter Parole and Probation), he continued to say Governor Miller had included in his budget some additional Parole and Probation officers to accommodate the life skills and residential confinement provisions. Senator James said the diversions set forth in S.B. 416 would utilize those provisions, creating a "wash" regarding fiscal impact. The first person to speak to the committee was Robert Bayer, Director, Department of Prisons. Mr. Bayer said his staff was in the process of studying the information provided by the National Council on Crime and Delinquency (NCCD), and trying to "break it out into the different custody groups...to come up with our standard fiscal note...." He then referenced Exhibit C, saying the solid line on the graph represented the raw data using the Governor's proposed budget, while the dotted line represented the raw data utilizing S.B. 416. He asked the committee to note that in the present biennium, over the next 2 years, the raw data shows there will be less of an impact, since there would be fewer inmates in the system. Mr. Bayer said they were now attempting to determine what groups of inmates would be affected. He continued: "There will be no impact by this bill on the prison as far as bed space is concerned...but I want to stress...the same group that is diverted by S.B. 416...Parole and Probation will be prepared to handle...." Senator Adler pointed out that during the current biennium, approximately 500 beds would be added at the Lovelock facility. He then stated that the chart (Exhibit C) showed "...you will be hit with 250 people right off the bat," and asked where those persons would be placed. Senator James responded that was not true for the year 1997. Mr. Bayer indicated when they "break out" the custody designations, they may find those inmates will be diverted to camps. Senator Adler said the chart showed the worst case scenario was that 800 inmates would be added in 1998, and Senator James again disagreed saying, "That is a hypothetical that has no meaning whatsoever...because it assumes there are no diversions and the bill requires diversions." Senator Adler said one of his problems was with the reference on the chart to "minimum projections," rather than "average projections." He added, "This is a best case scenario of prison population, if everything goes right." Mr. Bayer agreed but added with reference to the NCCD projections, "I think you generally do not see minimum meeting the maximum potentials in any projections they do." Senator Adler added, "If we blow it by 500...that scares me." Mr. Bayer responded, "We will try to give you an honest projection and custody breakout...you always run the risk of projections being off...parole rates can change...sentencing rates can change...there are always those variables." He added he believed one of the variables considered by the NCCD was that once an inmate does the minimum sentence (under S.B. 416), the parole board would show more favor to that inmate, because he or she will have done more time than that inmate would have under existing law. Mr. Bayer stated he believed the proposed sentencing commission was important because if the trends change in the next 2 years, that commission could make recommendations to the next session of the Legislature. Senator Adler pointed out S.B. 416 would "cut minimum custody beds and goes more to medium and secure custody beds." He asked Mr. Bayer if there would be enough "medium to maximum security beds" with such a shift. Mr. Bayer answered the next study done by the department would show "where the custody levels break out." Senator Adler then asked if at the "tail end" of some sentences, if inmates could be sent to the honor camps. Mr. Bayer answered once an inmate has served their minimum time, he or she may be eligible to enter an honor camp. Senator James referenced Exhibit D, and said the words "minimum projected impact" was an "absolute misnomer," and questioned why NCCD prepared a chart in such a fashion. He then pointed out the package submitted by NCCD entitled "Impact Assessment of Truth in Sentencing Proposal on the Nevada Prison Population, set forth herein as Exhibit E. Senator James said the chart on page 6 of that exhibit states, "This projection assumes no diversions from prison." He stated, "To make an assumption like that is to assume away part of the bill...we can assume sections 235 through 350 are ripped out of the bill and thrown in the garbage...then we could do a fiscal impact on what is left." Senator James reiterated, "That is an assumption without meaning...and a projection without meaning." He said if the question comes up before the full Senate, he would state, "The word minimum versus maximum doesn't exist." Senator James informed Senator Adler that he had held discussions with the chairman and members of the Senate Committee on Finance and added, "What we are looking at in terms of a fiscal note is the impact for this biennium for the Department of Prisons and Parole and Probation...which will be a zero number, or as close to it as you can get." He added, "If a realistic projection that made all the assumptions had this going from zero to 2,000 additional inmates by 1998, we would have to rethink what we are going, but it doesn't." Senator James quoted a statement by Robin Bates, Chief of Classification and Planning, Department of Prisons: "What you are doing here is imminently reasonable in terms of what you are trying to accomplish...I think 225 beds after 4 years of this being in effect is really reasonable." Senator James pointed out that the numbers show "...what is driving this initial updraft in the number of prisoners, which peaks in July 1998...is the parole revocations and drunk driving incarcerations." He said he had held discussions with the Governor's staff, prison officials, Parole and Probation officials, and with other senators, to see if something should be done to change that aspect, i.e., "...to back off on how we punish those people under this bill." Senator James said no one, "to a person" has wanted to do that, "...including myself." Senator Adler pointed out if "nothing was done" there would be approximately 4,000 additional beds needed between now and the year 2000. Mr. Bayer said the projection indicated by the year 2,000 there would be 10,246 inmates in the Nevada prison system. He said he believed Senator Adler was asking if this was "beyond what was planned down the road," and indicated he would be able to provide better answers after additional projections concerning custody breakouts was done. Mr. Bayer stated at this point he did not know how the legislation could have a greater effect than what NCCD has projected "for the next 2 years of the biennium." He pointed out a large group would be diverted immediately to life skills, residential confinement and probation, creating a negative impact. Mr. Bayer continued to say if the projected bed need fell in the minimum security range, they could accommodate the projected population. Mr. Bayer stated, "I don't want to be in this position...2, 4 or 6 years down the road...we should never be again. We should plan ahead of time on all our prisons and make sure we are ready to react to any fluctuation in projections." Senator Adler responded, "My concern is...are you comfortable that you react and get these prisons planned and built...?" Mr. Bayer answered, "If the Assembly and senators take a real active interest in site selection and have an active participation...." He added, "The more you show your interest in pushing those projects ahead and making sure they are in a timely fashion, the more certain it will be that it will get done." Mr. Bayer said the department would make sure "...they come on line in time with the construction plan you approve." Senator Porter stated, "If we break up this crime situation into thirds...a third is the regulations, which [the committee] is working on is very innovative and very prudent, and is responsive to our constituents." He said a third relates to enforcement and sentencing aspect. Senator Porter then stated, "Another third is status quo...that is the prisons themselves." He said they were concerned about getting hardened criminals off the street but added, "We are limited because of our bed space. I don't think that is acceptable to our constituents...I think they expect us to find a way to put these folks behind bars." Senator Porter said he would be asking for new language that would be "prison specific," so new prisons could be built without affecting bonding capacity. He indicated they should not be "confined to old ways of doing business" when it comes to finding bed space. Senator Porter concluded, "If we don't...we are wasting our time...we have to find the facilities...and not accept that this is the way it is going to be." Mr. Bayer agreed with Senator Porter, and said the department will explore every option in order to be able to react to the crisis. Senator Porter stated he believed specific wording could be developed for a ballot question that the voters would approve. Mr. Bayer said the last ballot question was worded with such confusion that the average voter did not know its meaning. Senator Titus set forth her support for S.B. 416, but said her concerns were tempered by a recollection of a ballot question in Clark County which asked if persons would allow their property taxes to be raised a very small amount in order to build extra police substations, and the question was defeated. She said she could not believe how people could be so concerned about crime, and yet not vote for such a proposal. Senator Titus added, "When I go back to the public and say, `You wanted truth in sentencing,' I can say to them, `This is what it is going to cost you.'" She said that is why she keeps insisting on seeing a fiscal note, so she can make a responsible decision and be able to tell her constituents what the cost will be. Senator Adler said he felt the same way and although he wanted the bill to pass, he believes "everybody's worst nightmare" is that if the bill passes and the projections are off, they will have to "come back in 1997 and reduce sentences on some of the crimes because we don't have space for the inmates." He said if the bill passes, he wants to "be pretty secure" there will be places for the inmates. Senator Adler added, "From a credibility standpoint...we would look pretty ridiculous if we had to come back and jerry rig the criminal statutes...." Mr. Bayer responded a "normal fiscal note" produced by an agency is only for the current biennium. However, he said, when they are asked to project 4 to 8 years ahead, it is difficult, since they only received the "raw data" a few days ago, and their staff is limited. Mr. Bayer indicated they would do the necessary projections as quickly as possible. Senator James stated never in the past has such a long-range fiscal projection been requested. He said they have utilized experts from all over the country, in addition to the many meetings with officials of the prison system, and have "gone above and beyond the call of duty" in preparation of S.B. 416. Senator James added although there may be "changes in the projections down the road," they have worked very hard to develop the best legislation possible. Senator Porter asked Mr. Bayer what he estimated to be the percentage of error in the projections developed by NCCD. Mr. Bayer answered he did not know, but would return with an answer. Senator Porter then asked if they did not have to "come up with" an additional 400 beds this year alone. Mr. Bayer agreed, but said part of the reason was that the new Lovelock prison was targeted to open in October and the date had to be moved up to July. Senator Porter pointed out the projection of a .03 difference in the projections between the "status quo" and the effect of S.B. 416, and said that was very low, considering "...we were off 400 beds this biennium." The next person to speak to the committee was Carlos Concho, Department of Motor Vehicles and Public Safety, Division of Parole and Probation (Parole and Probation.) Mr. Concho responded to the question of fiscal impact on Parole and Probation and said his figures showed they would need five or six positions in the current biennium. He said the inmates who would be affected with regard to going into the life skills and rehabilitation programs would be the same individuals which would be diverted to probation, with a possibility of an additional 100 persons. However, Mr. Concho said, the personnel involved would handle the same individuals. He said the fiscal note would show very little increase, except that the expanded house arrest program would cost more because the ratio of officers to offenders would be larger under S.B. 416. Senator James referenced the criteria set forth in Assembly Bill 317. ASSEMBLY BILL 317: Makes various changes related to juvenile courts, sentencing, crimes and punishments. Senator Titus asked if a prisoner was placed into a house arrest program rather than being diverted "straight out," if it would cost twice as much. Mr. Concho said S.B. 317 would require that an inmate be released to Parole and Probation supervision, wherein the house arrest program required a ratio of three offenders to one officer. He said under S.B. 416, "on the front end," although a small percentage of individuals would be placed under house arrest, the majority would be placed under regular supervision, which would require double that ratio, and be twice as expensive. Senator Titus asked if there were other costs involved besides "manpower." Mr. Concho replied there would be electronic equipment required under A.B. 317, which costs approximately $7.00 per offender, per week. He said offenders are asked to pay that cost, but indigents are not required to do so, and they received state subsidy. Senator Adler pointed out the recidivism rate for persons placed under house arrest under the "305" program was much lower, so it may not cost more in the long term. Mr. Concho disagreed, saying the house arrest program involved mainly driving under the influence (DUI) "305" offenders, which had a high recidivism rate. He said expanded house arrests set forth under A.B. 317 would not require employment, and there were many restrictions, and did not involve the same group as the "305" program. Senator Adler agreed, but asked if the success rate would be higher than with normal parolees, and Mr. Bayer answered it should. Senator James publicly thanked Mr. Concho and Mr. Bayer for all of their assistance in the development of S.B. 416. There was no further testimony on the bill and the chairman moved to the hearing on S.B. 374. SENATE BILL 374: Revises circumstances aggravating first degree murder. The first to speak to the committee was The Honorable C. Cliff Young, Justice, Nevada Supreme Court. Justice Young stated the bill proposes to eliminate language from the statute, i.e., "depravity of mind." He said in capital cases, aggravators must be weighed against the mitigators, and only if the aggravators outweigh the mitigating circumstances can a death sentence be imposed. Justice Young stated, "Even though the aggravators outweigh the mitigators, and the person becomes death eligible, it does not mean the jury or the trier of fact has to impose the death penalty." He added a jury or judge still retains the option of a life or life without sentence. Justice Young said the word, "depravity" has been construed by the United States Supreme Court to be too vague. He added the Nevada court "continually has problems with this phrase." Justice Young stated a case in which "depravity of mind" was construed to "require mutilation or torture." He said since it has been construed that way, "...it makes no sense to include depravity of mind...because you need torture and mutilation." Justice Young indicated: "Sooner or later, if you enact this, someone will ask if it is retroactive or prospective...I think it should be made abundantly clear that it is prospective and not meant to be retroactive." Senator James asked if the prospective section covered the date of effectiveness of the bill. Justice Young indicated he did not know the answer to the question. Senator James stated it would be clear if the legislation stated, "...after the effective date of the bill." Senator James said one of the big problems frequently discussed with relation to the death penalty is its ineffectiveness because of the many appeals. He said he would like to consider a project, possibly for the next session of the Legislature, to study avenues which could be taken to address the question of the length of time taken by the appeals process. Justice Young answered they have been studying this issue and he believes there are things which could be done. He said one large problem is obtaining the legal transcripts of cases. He said delays cause the entire system to lose respect. Senator James indicated he would like to work with the court in order to develop legislation in this regard. Justice Young stated the court would look forward to the opportunity. Senator Titus stated she believed in a past session they developed legislation aimed at speeding up the process, with respect to writs of habeas corpus. Justice Young said that did help "to some extent." He added, "Change comes slowly in the judicial system...we are not the most aggressive of the institutions." The next person to testify was David F. Sarnowski, Chief Criminal Deputy Attorney General, Office of the Attorney General. Mr. Sarnowski stated the office supported passage of S.B. 374. He agreed with Justice Young that there have been "complications" surrounding the depravity of mind issue, and added, "Given the court's construction that now requires a finding of torture or mutilation under that particular aggravating circumstance, it frankly makes logical sense that there is no legal advocacy to continue to require it." Mr. Sarnowski agreed the legislation should be "prospective only," and he indicated he had proposed language for the committee. He stated there were inmates "...against whom a finding of depravity of mind has been rendered...I think it should be left to the court system in those cases to resolve whether or not that was an appropriate aggravator in their particular case." Mr. Sarnowski added if it was determined not to be, it would have to be decided whether a new sentencing proceeding should be required. He offered the following suggested language: This act only applies to offenses committed on or after October 1, 1995. This act is prospective only and is not intended to affect the case of any defendant against whom a finding of depravity of mind has been or may be returned, for offenses committed prior to its effective date. Senator James stated it should be made clear that the Legislature was not making the change because of a perceived unconstitutionality or any other infirmity in the existing statute, other than an interpretative issue which the courts are currently dealing with. He said they wanted to make it easier for the courts to interpret the statute in the future. Mr. Sarnowski agreed the intent of the bill was to make the system more efficient and to eliminate litigation over that particular aggravator. There was no further testimony on S.B. 374, and the hearing was closed. Senator James opened the hearing on S.B. 391. SENATE BILL 391: Revises provisions governing execution of death penalty. Appearing again before the committee was Robert Bayer, Director, Department of Prisons. Mr. Bayer referenced section 5 of S.B. 391, which exempts members of the prison medical staff from being involved in any way in an execution, and said the section should be deleted. He said the language was "not well thought out," considering the potential for problems during an execution which may result in the need for medical staff. He said he was fully aware that the medical staff "do not like to be involved in the process of taking a life," but added it was necessary for the public and the inmates be exposed to "safe, humane conditions." Mr. Bayer indicated he supported the language in section 2(d) with respect to a county coroner being invited to attend an execution. Senator Porter asked if there was another bill relating to witnesses to an execution. Mr. Bayer answered A.B. 469, regarded having a representative of the victim's family present. ASSEMBLY BILL 469: Allows certain relatives of victim of murder to request to be notified of and attend execution of death penalty. Senator James asked if the bill would amend Nevada Revised Statutes (NRS) 176.355, and if so, if the language regarding the county coroner could be added to that bill. Mr. Bayer answered that would be possible, if approved by the bill's sponsor. The chairman indicated S.B. 391 would not have to be processed if that addition to A.B. 469 was accomplished. There was no further testimony on S.B. 391, and Senator James closed the hearing on the bill. He then opened the hearing on S.B. 392. SENATE BILL 392: Revises provisions governing employment of offenders, accounting of money of offenders and forfeiture of good- time credits. The first person to testify was Anne B. Cathcart, Senior Deputy Attorney General, Litigation Division, Office of the Attorney General. Senator James referenced a letter received from Ms. Cathcart explaining the provisions of the bill and suggested changes. A copy of the letter is attached hereto as Exhibit F. Ms. Cathcart indicated she represented the Department of Prisons on behalf of the Office of the Attorney General. She stated two of the provisions set forth in S.B. 392 are also being addressed in two Assembly bills, A.B. 389 and A.B. 106. ASSEMBLY BILL 389: Revises provisions governing payment of medical expenses of offender incarcerated in state prison. ASSEMBLY BILL 106: Provides for forfeiture of good-time credit on account of frivolous civil action. Ms. Cathcart stated she felt it was inappropriate to duplicate the efforts being made in the Assembly, therefore sections 2 and 3 should be deleted from S.B. 392. Ms. Cathcart said each session her office attempts to place before the Legislature a "kitchen sink-type" of bill, based upon the prior 2- or 3-years' experience dealing with inmate litigation. She added, "If there is anyone who can find a loophole or potential loophole in existing statutes, it is going to be an inmate...." Ms. Cathcart indicated in order to "preclude such future litigation," the office offered amendments which are included in Exhibit F. She reviewed the information set forth in her letter with the committee. With reference to section 4 regarding deductions from inmate's wages, Senator Adler asked if the issue of minimum wage should be addressed, since an inmate filed a lawsuit saying he received less after certain deductions were made. Ms. Cathcart responded that had not been considered, partially because the Office of the Attorney General prevailed in that litigation. Senator Adler suggested language be placed into the bill regarding payment of state minimum wage to inmates. Ms. Cathcart agreed, saying it should be stated clearly that an inmate "has no right to be paid the state minimum wage." Ms. Cathcart stated the provisions of section 5 of S.B. 392 were included at the request of the Department of Prisons. She indicated at one time many years ago, there was an "indigency level" of $10.00 set for taking amounts from inmate's funds, i.e., below that amount, neither the department nor the inmate could remove funds from the account. Ms. Cathcart stated she believed there should be authority in the statute for the director to set the indigency amount. The next subject she discussed, with reference to language of section 5, on page 2 of Exhibit F, regarded deposits into non-interest bearing savings accounts for the eventual release of the offender or for funeral expenses of the offender. Ms. Cathcart stated there was litigation over the issue of whether or not the Department of Prisons could force inmates to save $200.00 toward their eventual release, known as "gate money." She said an inmate sued because he was serving a "life without" sentence, and indicated he would not be released, so he should not have to save the $200.00. Ms. Cathcart said his claim was upheld by the court. Therefore, she said, the provision regarding funeral expenses should be added. Senator James asked for an explanation of the purpose for individual inmate accounts. Ms. Cathcart answered the accounts are established in order to keep track of any income or outgo which the inmates may have, such as wages earned in prison or money provided by relatives. She said inmates are not permitted to have money on their persons, and use an authorization procedure to pay for supplies in the canteen, for example. Ms. Cathcart also said the department has the right to be reimbursed for any costs it has incurred, which can be deducted from the inmate's account. Senator James asked if the director had the right to remove money from an inmate's account at any time. Mr. Albert Peralta, Chief of Inmate Services, Department of Prisons, approached the witness table to respond to the question. Mr. Peralta said his responsibility included the handling of inmate accounts. He stated funds which are received from outside sources, legal postage, medical charges and other "department charges," or restitution to the prison for destruction of property, are subject to a retainage of 50 percent of the amount received. Senator James asked a question regarding the language surrounding withholding of inmate wages to be paid for victim's compensation. He pointed out that the language stated, "...an amount the director deems reasonable," rather than "a reasonable amount." Mr. Peralta indicated some of the percentages change from time to time. He said in 1991 or 1993, the Legislature passed a bill which would allow prison industries to deduct five percent for a capital improvement fund. Mr. Peralta said the "indigency rule" was another percentage which was used. He said there was a long, complicated formula to be used for all deductions from inmate accounts. Mr. Peralta continued: "There is a point where we will have to look at all the deductions and cry `foul'...because we are being tested continually." He added, "Everybody wants a piece of the pie." He said in reality, the director would never take 100 percent of the inmate's account for any sole purpose. Senator James indicated he did not believe the bill was very helpful since it lacked guidance. Ms. Cathcart responded the indigency level, although not set forth specifically, would be the same for all inmates. Senator James pointed out the language of the bill stated, "The director will set the balance on an individual offender's account in the personal property fund at which the offender will be considered indigent." He said that appeared to indicate a decision on a case-by-case basis. Ms. Cathcart apologized for an apparent mistake in wording, since that was not her intent. Senator James asked if there was any objective set forth that a prisoner have money they have earned in an account, "...so when they get out of prison they don't go out on the streets without a dime in their pocket...no job, no skills...but the acquired knowledge of how to be a criminal." Ms. Cathcart answered that was a "strong concern," and the argument existed that "...if you want inmates to become rehabilitated...to work at prison jobs to obtain the skills...it might be counterproductive if you are taking almost everything from the inmate's paycheck." She said there are many inmates who are not necessarily motivated to work because they would like to develop skills, but rather because of the money they will make. However, Ms. Cathcart added, the chairman's argument was a good one and added, "It may help you to know that over the next year...the department and our office...it is our intention to try to work on an overall prisoner's financial responsibility act...." She said there was a "balancing" consideration and the question, "How much do you take out before the inmates say, `Forget it...it's not worth it.'" Ms. Cathcart said if the inmates earn a "pie," and there are many people who want a piece of the "pie," but the "pie" isn't big enough, it is a problem of balance. She said S.B. 392 could be considered a "stop-gap" measure, to indicate that in the absence of an overall legislative statutory direction, it would be best if the director made the determination of how funds should be divided. Senator Adler pointed out there were a large number of deductions which were taken from a basically minimum wage job. Ms. Cathcart agreed, and said from time to time there was not enough money to "pay everybody everything." Senator James stated he would like a clearer picture of how the deduction process works. He said if he were to bring the matter to the full Senate, incorporating the changes set forth in Exhibit F, he would receive many questions from the floor regarding the type of policy which was being established. Ms. Cathcart indicated the intent of the Department of Prisons is not to take away incentive from the prisoners. Mr. Peralta explained there are weekly, bi-weekly and monthly scales. He said from the first week, up to one month, the inmate is allowed $18.00 (each week), and after that time, there is a formula which could be explained in more detail at another time. Mr. Peralta indicated an inmate would receive a minimum $72.00 each month. He added no deductions occur until after the inmate has earned that amount. Senator Adler asked if that was enough incentive for an inmate to continue working at prison industries, and Mr. Peralta answered he believed it was. He did admit it was a question of, "How much are we going to be able to deduct before that inmate tells us where to go?" Mr. Peralta added the inmates also received work credits, which is another incentive. Senator Adler stated he believed there would be a large difference in recidivism between a person who leaves prison with enough money to obtain an apartment while he or she was looking for a job, than someone who had a very small amount of money when he or she was released. Ms. Cathcart stated some inmates save their money and some do not. Senator Adler asked if an inmate could be legally required to save a certain amount. Ms. Cathcart indicated in S.B. 392, there was a requirement that $200.00 remain in the account. Senator Adler responded he did not believe that was adequate. Ms. Cathcart said that was an issue they hoped to work on between now and the next legislative session. Senator James indicated the committee may have a problem with the information provided in her letter (Exhibit F), regarding financial responsibility. He said he believed something comprehensive may have to be done regarding such a policy. Senator James stated he did not want to enact legislation that may only be "...for the next 2 years...until the [Legislature] can come back and do something that is really responsible." Ms. Cathcart admitted one of the problems with inmate accounts was that no priority regarding deductions has ever been established. She indicated she would be happy to work with the committee on the problem. Ms. Cathcart reviewed section 6 of S.B. 392, saying the language was a clarification of the department's authority to transport prisoners to different parts of the state for court appearance. She said when the courts order a prisoner to appear in court, "...it puts the department in an awkward position if they don't have statutory authority to transport." Ms. Cathcart said there were also security and scheduling problems which result when there is inadequate notice given to the department. She indicated there needed to be "more lead time" to insure the inmates being transported have appropriate custody. Ms. Cathcart stated the other item contained in section 6(b) was added to make it possible for the courts to consider alternatives such as resetting a court hearing or allowing telephonic or video testimony. She indicated the appeals court has indicated since these provisions are not allowed by statute, it should not be done. Finally, she added, the bill would grant authority to a county sheriff to transport an offender to court. Ms. Cathcart stated her letter (Exhibit F) had been sent by facsimile to all district attorneys in the state. She said she had received one telephone call from Washoe County indicating there were no problems. Ms. Cathcart stated the committee would receive testimony from the Office of the Clark County District Attorney. Senator Adler indicated with respect to inmate deductions, there should be a "priority list" established. Ms. Cathcart indicated she would speak with Robin Bates at the Department of Prisons regarding this matter, and Senator Adler stated he would work with Ms. Cathcart on the issue. Senator James asked that information regarding priority of deductions be brought back to the committee for discussion before the bill was processed. The next person to appear was Ben Graham, Nevada District Attorneys Association and Office of the Clark County District Attorney. Mr. Graham introduced Sergeant (Sgt.) Julie Goldberg, Las Vegas Metropolitan Police Department (METRO). Mr. Graham referred to Ms. Cathcart's proposed amendments contained on Exhibit F, and said Clark County had concerns with the "charging factor" set forth in section 6(b)(3) of the bill. He said if the committee processes the bill, he would like to see language which allows a county to select either the Department of Prisons for transport of a prisoner, or a deputy sheriff or "sworn peace officer." He indicated that officer could be an employee of either the district attorney's office or the Office of the Attorney General. Senator McGinness asked when the Department of Prisons had a prisoner in custody if that custody could be transferred to a county sheriff. Mr. Graham answered, "On a temporary basis." He indicated that prisoner must be returned to the department, and added such transfer was covered by statute. Senator McGinness then asked how often a prisoner would be transported to court by a county sheriff, rather than the department, and Mr. Graham answered it would be "relatively insignificant." The last person to testify was Donald J. Mello, Director, Administrative Office of the Courts. He said he believed it was "long overdue" for the state to enact a "financial responsibility act" for prisoners. Mr. Mello stated a recent legislative audit pointed out certain deficiencies in the matter of fines and assessments in the prison system. He said there was presently a bill draft request which would modify NRS 209.463, which would change language from "...the director shall deduct from wages with respect to fines and assessments...," to "...the director must deduct...." In response to a question posed by Senator Adler, Mr. Mello stated he did not know the entire scope of the problem, and it was not stated in the audit report. Senator Adler asked if it was "in the millions," and Mr. Mello answered it was. Senator James closed the hearing on S.B. 392, and opened the hearing on S.B. 394. SENATE BILL 394: Revises requirements concerning courses of instruction for certain judges. The first to speak was Donald J. Mello, Director, Administrative Office of the Courts. He stated the bill was the "creation" of the Judicial Council of the State of Nevada. Mr. Mello said the intent was to set priorities as to education for district judges, while allowing the orderly management of court calendars. He said the law now states district judges must attend a course as soon as it is offered. Mr. Mello stated the Judicial Council requested a change to state family court judges must take the courses on family law, as they are now required, within 12 months of election or appointment, and the general jurisdiction course within 24 months of election or appointment. He added judges who were not family court judges would be required to take the course on general jurisdiction with 12 months of election or appointment. Senator Adler asked for information regarding the length of the courses. Mr. Mello responded the course on general jurisdiction took 3 weeks, while the family law course was 2 weeks. Mr. Mello stated if a district judge serves in a county which does not have "family court judges," the legislation provides the judge can take up to 24 months to take the family law course. Senator McGinness asked why the priority regarding the family law course would not apply to the rural areas. Mr. Mello answered they could, but the general jurisdiction course dealt more with court management and general principles of being a district court judge. He said the Judicial Council felt the rural judges should receive general instruction first. There was no further discussion regarding S.B. 394. Senator James opened the work session, with a discussion of S.B. 374, heard earlier in the meeting. SENATOR WASHINGTON MOVED TO AMEND AND DO PASS S.B. 374. SENATOR TITUS SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James asked the committee members if there were any problems or questions concerning S.B. 394. There were none and the chairman indicated he would accept a motion. SENATOR McGINNESS MOVED TO DO PASS S.B. 394. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * Senator James referenced A.B. 186. ASSEMBLY BILL 186: Revises provisions governing evidence considered at hearing to determine sentence to be imposed on criminal defendant. Senator James noted the assembly committee refused to concur with the Senate committee action on the bill, which concerned the definition of a victim and its expansion to a personal representative of a victim. He said Mr. Ben Graham had indicated a provision had been omitted from the bill. Senator James reminded the committee of Mr. Graham's testimony which stated the district attorneys had no problem with the definition of victim which was expanded for purposes of appearing in court, but they did have a problem with the notification aspect with such a broad definition. Allison Combs, Senior Research Analyst, stated the committee had amended the bill to "take out the reference to victim and simply put in `persons' who meet qualifications...," which is in the existing law at this time. She indicated Mr. Graham approved the amendment. Senator James indicated he understood the language, and had spoken to Assemblyman Lynn Hettrick concerning the Assembly committee's refusal to concur. He then appointed a conference committee to consist of Senator Washington, Senator Titus and Senator Porter. Senator James stated the conference committee would then state the Senate version of the bill should be accepted, and the Assembly committee will agree. Senator James then moved to a discussion of S.B. 120. SENATE BILL 120: Limits civil liability of county school districts, local law enforcement agencies and certain other persons with regard to volunteer crossing guards for schools. Senator James indicated the Assembly committee had amended the "school crossing guard" bill, to add "superintendent of schools," which is basically a technical amendment. The chairman stated he had agreed to the amendment and asked the committee to concur. SENATOR ADLER MOVED TO CONCUR WITH THE ASSEMBLY AMENDMENT TO S.B. 120. SENATOR PORTER SECONDED THE MOTION. Senator Titus asked if the bill still provided that a government entity was liable for up to $50,000. Senator James confirmed there was no change to that portion of the legislation. THE MOTION CARRIED UNANIMOUSLY. * * * * * The last order of business was a request for committee introduction of two bill draft requests (BDRs). BILL DRAFT REQUEST 16-641: Re quires prisone rs and former prisone rs to exhaust adminis trative remedie s before pursuin g tort action against departm ent of prisons . BILL DRAFT REQUEST 9-1006: Makes various changes to provisions governing real property. SENATOR PORTER MOVED FOR COMMITTEE INTRODUCTION OF BDR 16-641 and BDR 9-1006. SENATOR WASHINGTON SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY. * * * * * There being no further business to come before the committee, the meeting was adjourned. RESPECTFULLY SUBMITTED: Marilyn Hofmann, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary May 4, 1995 Page