MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session June 14, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:00 a.m., on Wednesday, June 14, 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 GUEST LEGISLATORS PRESENT: Assemblyman Jack D. Close STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Margaret Springgate, Legal Counsel, Governor's Office Ben Graham, Chief Deputy, Clark County District Attorney, Lobbyist, Nevada District Attorneys Association Nancy Tiffany, Citizen Robert Bayer, Director, Department of Prisons Anne Andrini, Executive Assistant, Governor's Office Laurel Stadler, Lobbyist, Mothers Against Drunk Driving (MADD), Lyon County Chapter Lucille Lusk, Lobbyist, Nevada Concerned Citizens Russell J. Shoemaker, Sergeant, Sexual Assault Detail, Las Vegas Metropolitan Police Department (METRO) ASSEMBLY BILL 317: Makes various changes related to juvenile courts, sentencing, crimes and punishments. The day's hearing was dedicated to the Governor's crime bill, Assembly Bill (A.B.) 317, the chairman announced. He called Margaret Springgate, Legal Counsel, Governor's Office, to the witness table to explain the provisions of the bill. Ms. Springgate told the committee of the main provisions of this bill, going over the various provisions and explaining their intent. Sections 1 and 3, she explained, changes when a juvenile is automatically started in adult court from the first appearance and when a juvenile can be certified up to adult court by the juvenile court. The difference is which court has original jurisdiction. The provision gives automatic adult court status to any juvenile 16 years old or older who is charged with any of the offenses that are listed in the provision. Section 4 provides that if those children start in the adult court, there is a procedure for certifying them down to juvenile court in certain circumstances, the witness told the committee. Additionally, the bill changes the discretionary certification to 14 years or above for any crime that would be a felony if committed by an adult. Also, section 4 eliminates the potential for a court to certify an offender down to juvenile court if the person is between 18 and 21 years of age and accused of a felony or gross misdemeanor. Section 7 changes the juvenile proceedings to open proceedings. Currently, those courts are closed for all juvenile hearing, Ms. Springgate explained, but the bill will make them presumptively open. The court will maintain the discretion to close the hearings, except that the court can include the victim or the victim's family as an interested party even in a closed hearing. Ms. Springgate continued noting, on page 8, lines 28-32, there is a provision that the prosecuting attorney must inform the victim of the outcome of a case, if it is requested. Additionally, the provision to keep this information confidential has been removed, she said. This is because victims have had a very difficult time finding out the results of a case involving a juvenile defendant. Thus, they were unable to use the information in any civil proceedings that might result from the criminal act, Ms. Springgate continued. Section 8 make changes to the tools available to the juvenile court in sanctioning a juvenile under its jurisdiction. These are all discretionary sanctions, Ms. Springgate emphasized, because sometimes they are applicable and sometimes they are not. These sanctions include giving the court authority to order the parent, guardian or any other family member who comes under the jurisdiction of the court into counseling. Witnesses have testified that in many cases it may not be possible to correct the problems being experienced by the defendant juvenile, but in some cases a younger sibling might be "reached" and diverted from the path followed by the older sibling, she explained. Subsections of section 8 allows the parent or guardian to be ordered into a restitution program or to perform public service; to pay the cost of proceedings; and to order suspension of the juvenile's drivers' license for any offense or situation where public safety is at question, Ms. Springgate stated. Testimony was presented that indicated the suspension of the youth's drivers' license would be "a big hammer," she reported. Section 10 changes the court's ability to suspend or revoke a drivers' license from 6 months to up to 2 years, the witness pointed out. Section 11 addresses fingerprints and photographs of juveniles. Current law prohibits fingerprinting of juveniles except under special court order, she explained, and photographs could not be taken except under certain circumstances. This provision changes all that, Ms. Springgate stated, allowing fingerprints to be taken and retained if necessary. Fingerprints still cannot be turned over to the Federal Bureau of Investigations (FBI) or other criminal investigations divisions, unless certain guidelines are followed. These are outlined on lines 29-32. Ms. Springgate explained, the provision requires that any photographs of juveniles must be maintained within their file. Thus, if a file is sealed, the photograph is sealed in it, she told. Section 14 makes the first reference in the bill to the violent habitual felon. It is addressed twice more in sections 21 and 26, Ms. Springgate said. These sections change the habitual criminal statute to a two-tiered plan: a mandatory habitual violent felon (where a person is charged with a third violent felony); and the habitual criminal felon, which is addressed on page 19 of the bill. The witness stated, this is a change to the habitual criminal statute that currently exists in an attempt to address situations where there have been five underlying crimes of fraud, petit larceny, or larceny, or three prior felonies of any kind. If one of these criminals subsequently commits a violent felony, the district attorney may charge them with the habitual criminal statute. The sentence for the habitual violent criminal charge is a mandatory minimum of 20 years before parole and the habitual criminal charge has a mandatory minimum of 10 years before parole, she added. Sections 16 through 20 deal with the advisory commission on sentencing, Ms. Springgate pointed out. The original provision has changed through the legislative process, she reported, and it now provides for members to be nominated to the commission by various associations; the Nevada District Attorneys Association, the District Judges Association, the Nevada State Bar Association; by the Governor from law enforcement, the Division of Parole and Probation, victim's rights groups and the chairperson; and by the Legislature, including two members of the Senate and two members of the Assembly, she explained. The witness assured the committee the commission is strictly an advisory commission charged with reviewing existing sentencing in Nevada and across the country and making a report to the Legislature. The commission, she emphasized, would have no ability to change sentences. She informed the committee the Governor has added funding for a sentencing analyst who would aid the commission in the legal and research needs. A previous sentencing commission had criticized the process because they were not provided with full-time staff to facilitate an effective evaluation of the system. This staff position is in response to that criticism, she stated. Section 22, subsection 5 results from another of the previous sentencing commission's recommendations; this provision allows judges to modify the sentence of a parole violator. She explained the reasoning behind this change, noting sometimes a judge will sentence a defendant to an extremely harsh term and then suspend the sentence with the intent to have judicial supervision of the defendant for that longer period of time. Had the judge simply sent the defendant to prison, she asserted, it would not have been for such an extended period, in many cases. This provision allows a judge who wishes to revoke a probation, to send that defendant to prison for a modified period which may seem more appropriate to the circumstances. There is also a notification to the victim and an allowance for victim input for these instances, she said. Section 27 addresses residential confinement, Ms. Springgate pointed out. This provision allows the Department of Prisons, in conjunction with the Division of Parole and Probation (requiring concurrence of both entities) to classify prisoners into residential confinement. This is not a release on parole, she stated, but rather holding them as inmates in their residence. Those held in residential confinement will not have to have a parole revocation hearing should they violate the conditions of their residential confinement. These individuals could be immediately transferred back to the prison, should there be some violation of their confinement. There are particular conditions to be met before the Department of Prisons can classify an inmate to residential confinement, which are set forth on page 20 of the bill, Ms. Springgate explained. Most of these outline conditions of exclusion from the program. One of these conditions is that parole and probation must accept the inmate into the program. During hearings in the Assembly ways and means committee, a provision that required employment as part of the residential confinement program was removed. This was done because there are situations where employment is not the first priority for the program participant. The inmate may be involved in drug treatment programs or schooling, she observed, and this is designed to allow some flexibility. There is also a victim notification and input provision in this section, Ms. Springgate added. Moving to section 28, the witness told the committee the bill expands the ability of the prisons to put people into the Driving Under the Influence (DUI) residential confinement program (the 305 program). Currently such participants must have employment awaiting their release. It has been shown there are a number of persons who might be in the program, except that they cannot work, for various reasons. This change expands the DUI residential program, she stated. Section 29 limits the ability of the Pardons Board to commute certain sentences to sentences which would allow parole. There has been a bit of discussion as to the effective date of this provision, she noted. In order to avoid anticipated judicial problems, the effective date of this provision is the same as the effective date of the bill (offenses committed after July 1, 1995). Section 30, which deals with definitions of victims, is not suggested by the Governor, but was incorporated into the bill from other sources, Ms.Springgate remarked. Section 32 extends the time between parole hearings for those individuals who are denied parole. Current law requires a rehearing within 3 years, Ms. Springgate told the committee, and there are cases where the inmate still has 10 years remaining on the underlying sentence. This provision allows the hearing to be delayed for a total of 5 years, she explained. This concluded the witnesses summary of the substantive provisions of the bill. She explained that many of the remaining sections deal with details of the substantive changes made by the bill. Ms. Springgate offered to answer any questions the committee might have. Senator James turned to the sections that discusses certification of juveniles. ASSEMBLY BILL 393: Makes various changes related to possession of firearms by children and increases penalty for sale of certain firearms to children. He reviewed what the provisions do and told the witness of amendments made to Assembly Bill (A.B.) 393 to provide a presumption of certification to adult court of juveniles who are 14 years of age or older. A.B. 393 also requires a mandatory certification for criminal proceedings if the juvenile is over 14 at the time of the offense, has been convicted of committing at least two prior "felony" offenses, and one of the offenses involved the use of a firearm. Under that bill the age limit of 16 for discretionary certification proceedings remains. Given this information, the chairman asked Ms. Springgate to explain how the two bills will mesh, and why the Governor's bill contains what appear to be modifications of the recommendations of the interim committee on the criminal justice system. Senator Adler also asked the witness to address these concerns, since the interim committee studied the issue for over a year before making their recommendations. Specifically, he wondered what is to be done in cases that, while appearing serious (assault with a deadly weapon could be charged in the case of a kid throwing a knife toward another and missing), might not be so. A.B. 317 requires an automatic certification to adult court in every case. Ms. Springgate responded to the question by explaining she, personally, lacks a lot of experience in the process. In October of 1993, she said, she started working with the Governor on his crime platform during the reelection campaign. This platform subsequently developed into the bill before the committee today. She observed it would have been helpful had she been more aware of the process and had some input into the interim committee or more discussions with the senators on the subject. This bill was been developed from almost 2 years of work with law enforcement, judges and the Governor, including numerous meetings with all of them, the witness stated. There was no intention to produce some modification of the recommendations of the interim study committee, she asserted, but rather the bills developed "side-by-side" based on concerns expressed by everyone. Addressing Senator Adler's concern about the assault with a deadly weapon charge, Ms. Springgate told there were many discussions about the charge in the Assembly judiciary committee. She told that Assemblyman Perkins was particularly concerned because of the broad definition of deadly weapon. The witness mentioned a bill she believes is forthcoming dealing with the definition of deadly weapon. Senator Adler asked to return to the chairman's original question, observing there is a "real difference in philosophy here," with one group of witnesses testifying to the need for mandatory certification in juvenile court and one group of witnesses testifying that juveniles should automatically start in adult court without a certification hearing. Ms. Springgate agreed that one witness (Judge McGee) did testify to the need for proceedings to begin in juvenile court, but every other person who testified seemed to feel that certain juveniles should start in the adult court. Senator Adler countered that the Senate judiciary committee did not hear "a single witness telling us it is a good idea to start juveniles out in adult court," with the option to certify them down. Apparently, he stated, there were two entirely different ranges of testimony. Juvenile court representatives report they are overwhelmed with the volume of cases, Ms. Springgate reported, and in Washoe County, Judge McGee spends the majority of his time in juvenile and family court, even though he is a general jurisdiction judge. This bill would relieve the caseload for these courts, she observed. Ms. Springgate speculated that requiring the juvenile courts to hold a certification hearing on every juvenile who is arrested for a crime that involves a firearm will greatly increase their caseload. The senator from Carson City responded that the adult courts will suffer the same increase if A.B. 317 passes as drafted, perhaps even more. He reminded the witness that while the juvenile certification procedure is rather simple and somewhat informal, any proceeding in adult court is very formal and requires a full court record. Ms. Springgate asserted the juveniles that will be involved in this system are not "good little kids," but rather "young criminals." She insisted it is the Governor's philosophy with this bill, to start them in adult court and to recognize that these are not youths who need to be put in Elko for a short period of time. Senator Adler again reminded the witness these youths have only been charged with the crimes, they have not been convicted. The question of whether they are young criminals or not remains to be seen, he insisted. He summarized the Governor's philosophy as starting all youth offenders in adult court and certifying them back to juvenile court if they do not fit the criteria. She said that is correct. Senator Adler asked if the Governor has a plan for housing the 14-year-old youths who will be sent to adult prisons, if this bill is passed. Putting a large number of such young people in with the regular adult prison population creates a "huge liability problem," the senator opined. He asked if there is any plan for a youth offender facility, or any other plan as to where they will be housed. Ms. Springgate replied she is unsure of what the liability problem might be. But the youth would be considered an adult under the system, and therefore, it would be no different than if they were adult. The senator acknowledged there are currently 13- and 14- year-old prisoners in the system, but he asked if the increased number that would result from this law would be segregated from the general population. Ms. Springgate responded that under the current budget there is no allowance for segregation of these juveniles. It has been discussed with the director of prisons, she reported, with an eye to the new prison facilities being built. Senator Washington asked Ms. Springgate to clarify the first two sections of the bill for him. He was unsure who would be automatically sent to adult court and who would be given an automatic certification hearing in the juvenile courts. She clarified the issue for him. He stated he was not certain of his feelings about the bill, but he could understand the Governor's goal with the bill. He agreed there is an increasing number of juveniles who are committing more serious and more violent crimes. Senator James moved to the section about the commutation of prison sentences. He addressed the items that appear to be in conflict with Senate Bill (S.B.) 416. SENATE BILL 416: Makes various changes regarding sentencing of persons convicted of felonies. He stated the provision that prohibits the commutation of sentences in A.B. 317 is somewhat different than the same provision in S.B. 416. When Stewart Bell, the Clark County District Attorney, testified before the Senate, the chairman stated, he requested the prohibition only apply to those individuals sentenced to death or to life in prison without the possibility of parole for first degree murder. Ms. Springgate explained she has discussed this with Ben Graham, Chief Deputy, Clark County District Attorney, but not Mr. Bell. She stated the philosophy on this point is that people are very desirous of having a sentence actually mean what is says. Thus, if an individual is sentenced to life without the possibility of parole, they want that to be the result, no matter what the crime was, she asserted. The Governor wants consistency, she stated. Senator James referred to section 231 of S.B. 416 which was apparently amended by the Assembly to include the provision from A.B. 317. Additionally, they made the prohibition retroactive and prospective. Ms. Springgate was unaware of this and asked what kinds of cases would be covered by the retroactivity. The chairman replied the crime covered is first degree murder. The witness explained there was testimony in the Assembly which caused concern about the retroactivity, because there are cases where plea agreements were used with a sentence of life without the possibility of parole. In many of those cases, she told, the defendants were led to believe by defense attorneys and prosecutors that there really is a possibility of being paroled. With this representation being made, it might appear there is some liberty interest held by the inmate and, therefore, an opening for judicial challenge. If the case was concluded by a trial and the sentence was given, then, she speculated, the representation would not have been made to the defendant and there would be no reliance on it. Therefore, to avoid a judicial challenge it was decided to make the provision prospective, but the Governor has no real strong feeling, one way or the other, the witness represented. Senator James expressed that he holds little sympathy for a person who had been convicted of a crime, such as first degree murder, and he does not feel bound to honor some unsupported expectation. What is important is what the law says, he opined. Based on an exhaustive legal analysis provided by Mr. Bell to the committee, there is no liberty interest or reasonably protected expectation of a potential pardon. As a result, the law could be made retroactive and applicable to anyone who is convicted of the crime after July 1, 1995. The chairman asked Mr. Graham if he has changed his position about the applicability of the commutation prohibition. Mr. Graham responded there had been a difference of opinion as to retroactivity of this provision as well as to where it would apply. The prevailing view was verbilzed in S.B. 416. The chairman summarized the provision in S.B. 416 as covering all crimes and being retroactive for first degree murder. Mr. Graham predicted litigation of the issue, but it will only need to be litigated one time before the precedent is established. The chairman moved to the next issue. There is a question about the age of juveniles whose parents might be held responsible for the actions of the juvenile. This provision is on page 9 of the bill. He read a summary of the provision, noting counseling could be ordered for the family at the cost of the family. Ms. Springgate interjected the counseling would not necessarily be at the family's cost, because funding might be available from revenues gained when confiscated guns and vehicles are sold at auction. ASSEMBLY BILL 297: Requires juvenile court to order counseling for child and parents and to impose civil penalty on parents under certain circumstances upon adjudication of child as delinquent. The chairman asked about A.B. 297 which delineates an age cutoff for ordering parents into counseling. That bill uses the age of 17 as the cutoff age, the senator noted, and wondered if this would cause a problem with the Governor's bill. Ms. Springgate answered the provisions only apply to juveniles, not those youths who would be appearing before the adult courts. Additionally, there was no need to provide any age cutoff because it is a discretionary tool to be used by the juvenile courts. Moving to the provision on habitual criminals, the chairman explained any changes in the law that came from the Senate in this regard came as a result of the interim criminal justice study chaired by Senator Adler. He offered a brief overview of the habitual felon provision in A.B. 317. He pointed out the provision eliminates a portion of Nevada Revised Statutes (NRS) 207.010, that is called the little habitual offender statute. S.B. 416 also makes changes to the habitual offender statutes. It creates a habitual felon provision, under the category A felonies of that bill. In the Senate bill the prosecutor must charge the offender as a habitual offender if the offender's current charge is one of the violent or sex-related felonies listed in the provision, and the offender has two prior convictions for such felonies. The penalty for a conviction under this provision is life without the possibility of parole, life with the possibility of parole after a minimum of 10 years, or a definite minimum of 25 years (with a possibility of parole after 10 years), he said. The Assembly judiciary committee amended this provision to add lewdness with a child under 14 years-of-age to the list of felonies. They did not address the conflicts between the Senate and Assembly crime bills, leaving this to the Senate judiciary committee, he observed. Ms. Springgate asked the chairman if the two prior convictions required under the Senate bill's habitual felon provision are violent acts. The chairman responded they are violent. Senator Adler added they are enumerated clearly in the bill, where A.B. 317 offers a more general outline of the crimes. Ms. Springgate listed the differences between the two bills as S.B. 416 including sexual offenses, lewdness with a child, and having a parole possibility after 10 years; the Assembly bill allows parole only after 20 years. Senator Adler explained the reasoning behind these assignments was to retain consistency in the category A crime scheme. Senator Adler explained the interim study committee examined the existing habitual criminal law. There were two habitual criminal laws in existence, and the Senate crime bill added the third super habitual criminal law, which is a mandatory charge. He observed the Assembly bill revamps the two lower level habitual criminal statutes. Ms. Springgate opined the philosophy behind both bills was probably the same (i.e., when someone has three previous violent or sexual felonies the discretion should be removed as to charging this crime.) She offered the reason for removing the little habitual criminal law is because it is virtually never charged. Violent offenders should be incarcerated for a longer period of time, she asserted, and thus, the violent crimes were included in the Governor's bill. It is important, she stated, to have a heavy hammer hanging over those criminals whose action are escalating on the scale of violence. But in the end, it probably makes no difference if the little habitual criminal charge is retained, she said, adding it is her opinion to allow the discretion where the crimes are not of a violent nature. Overall, there appears to be little inconsistency between the two bills, she observed. Senator Adler explained his preference for the S.B. 416 wording because it clearly lists which offenses fall under the habitual criminal statute. He voiced agreement with Ms. Springgate on her assessment of the other habitual criminal statutes, noting he has not seen the little habitual criminal charged except in plea bargaining. Senator James opined the differences in the bill are things that can easily be worked out to the satisfaction of those involved. He thanked Ms. Springgate for her time and effort. She offered to work with the committee to address any conflicts that exist between the two bills. Mr. Graham spoke next. He stated the Nevada District Attorneys Association strongly supports the bill, noting there has been a lot of work put into all the session's crime bills. A.B. 317 contains the bulk of the desired juvenile proposals, he reported. This concluded his remarks. Nancy Tiffany, Citizen, spoke to the committee. She emphasized she was only appearing as a representative of herself, but she wished to point out a couple of concerns she has about the residential confinement provisions. While generally supporting the bill and residential confinement programs as they exist, Ms. Tiffany expressed concern with sections 27 and 28 of A.B. 317. The criteria which makes the 305 program so effective are apparently being removed with this bill. First, in regard to section 27, the witness stated, during the interim study there was a lot of talk about expanding the house arrest program to include drug offenders. These individuals would go through treatment and then come under the same criteria as the DUI offenders, she explained. Ms. Tiffany opined that broadening the criteria, allowing burglars or drug trafficker to enter the program without any treatment program within the prison and without being required to have employment or other source of support within the community, as is being done in A.B. 317, will set a dangerous precedent. She asked what will be done to change the behavior of these individuals, to keep them from burglarizing premises or to give them skills needed to do things other than sell drugs. Senator Adler stated he shares some of Ms. Tiffany's concerns because he has observed successes on the current 305 program. What makes these individuals successful, he observed, it the fact that their existence is filled with work and attendance at treatment programs such as Alcoholics Anonymous. If these individuals have a lot of free time, they are likely to revert to their illegal activities, he predicted. Additionally, he said, it is his understanding that the participants in the proposed program would be those who, despite the offense they were arrested and incarcerated for, have an underlying substance abuse problem. Additionally, he believed these individuals would have participated in a 30-day treatment program in prison prior to their release into the residential confinement program. These are important components, he stated, and they should be incorporated into the bill. Ms. Tiffany urged the committee to amend this provision to include a focus on treatment programs to deal with drug or alcohol problems, whether this was the primary offense or the root cause of their criminal activity. She observed that people are in prison for a reason, and if that reason is simply because they enjoy criminal enterprise, they do not deserve to be participants in the residential confinement program. On the other hand, if they have a substance abuse problem, the problem should be addressed while they are in prison; while there is a "hammer over their head." Ms. Tiffany continued, noting if her suggestions cannot be implemented, the wording from section 28, subsection 1(a), (b), and (c), which requires employment in the community or be enrolled in a program of rehabilitation or education, etc., should be incorporated in section 27. She pointed out that if persons are released into the residential program without requiring them to be employed or enrolled in some program of betterment, it will be very difficult to return them to prison because of a lack of appropriate activity or behaviors. Additionally, they are vested with some due process rights which would entitle them to know why they are being returned to prison, even though they would technically be considered inmates. She offered to answer questions. Senator Adler opined that 70 or 80 percent of the prison population have some underlying drug or alcohol problem. This would present a large pool from which to draw participants in the residential confinement program, even if it is a requirement for participation. Also, the intake officers at the prisons are able to readily identify those individuals with substance abuse problems. Therefore, if the requirement was inserted in section 27, it would not restrict the participation in the program. Ms. Tiffany concurred with the senator. He added it would be necessary to insist the program's participants go through the regular 30-day treatment program prior to release to residential confinement. There were no further questions for Ms. Tiffany, and she stepped down. Robert Bayer, Director, Department of Prisons, was called next. He told the committee he had heard the end of the statement about requiring a treatment program prior to being released into the residential confinement program. He pointed out the budget had been drafted with a substance abuse program in it. Additionally, there were a number of counselors included. These were cut out of the budget during hearings, he reported. It had been his hope to provide this kind of treatment not only to those being released into the residential program, but to some in the general population. Mr. Bayer protested any move to make these programs a requirement in this bill after the funding for such a program was removed from his budget. This will cause a great problem, he stated. Senator Adler asked who removed the funding from the budget. Mr. Bayer stated it was his belief the funds were removed in the Assembly, because of priorities and availability of funding. Senator Adler opined that someone has some "screwed up priorities." The witness said he could not argue the merits of the cut, but rather, noted the mechanism to ensure these inmates have the treatment they require is no longer there. Senator Adler asked if the street-readiness program still exists, and if they could participate in that. Mr. Bayer informed him that program is under the auspices of the Division of Parole and Probation. It is designed for individuals who are being released on parole, he noted. He suggested it might be possible to formulate a course similar to the street-ready program. The current 305 DUI program is supposed to be a separate program, he said. Senator Adler asked if the department could provide some alcohol or drug counseling to the inmate prior to their release into the residential program. It appears they will "hit the streets" with no skills to cope with their problems. This, he opined, causes a great public safety concern. Mr. Bayer reported the only way to do a good job in counseling is to provide certified counselors. Thus far, the prison department has attempted to do the best job possible using staff psychologists and other health care providers. Senator Adler wondered if it would be possible to put language in the bill requiring the residential inmates to have some drug and alcohol counseling prior to release; not the 30 days, but something. Mr. Bayer asked that it not be put in the bill and made a requirement, because a release into the residential program already must be approved by both the Department of Prisons and the Division of Parole and Probation. These safeguards are in place to ensure the inmate is a reasonable risk and has sufficient programing to be successful. These should be sufficient, he opined. Persons with serious substance abuse problems will not be the ones who go to the street without first having some form of treatment, he assured the senator. Unfortunately, he said, he will not be certain of the resources he has in the department until after the Legislature adjourns. At that point, it will be possible to consider the resources and determine the kinds of programs that can be put together, using the staff available, he explained. Fortunately, the substance abuse program coordinator is still in the budget, and that individual will be charged with evaluating and maintaining contact with every institution in the system to ensure there are viable programs available to the inmates. Senator Adler asked if there might be funds available from the federal crime bill or other such sources. Mr. Bayer replied that information will be available very soon, but it is not now. The senator explained his concern that the department has had a very successful program dealing with the alcohol and drug problems of the inmates, along with parole and probation's follow-up program, and now the standards will be lowered for this similar residential release program. He stated he understood it was not the fault of the prison department that their budget was cut. The senator also commended the Governor's efforts to have the funding available. But he insisted that releasing these individuals without any treatment program into the public was not a good idea. Anne Andrini, Executive Assistant, Governor's Office, asked to address the senator's concern. She told him she had met with Mr. Bayer, Ms. Tiffany, and several others, while the bill was still being heard in the Assembly, in an effort to develop language to provide safeguards which outline what type of employment or program must be in place prior to release into the residential program. There was a desire not to restrict the releases to only those with employment, because there are some who have disabilities and are unable to work, as well as others who will be in full-time drug treatment programs and would be unable to work, she reported. The language was designed to specifically address the type of program that would need to be in place. Unfortunately, the language did not get "picked up" when the bill was redrafted, she stated. The language was good, and the Assembly judiciary committee was happy with it, Ms. Andrini explained. It was simply left out in a bill drafting error. She suggested it would be possible to incorporate the language back into the bill at the same time other amendments are being made. Senator Adler expressed a desire to have the language returned. Senator Titus expressed distress at hearing the director of prison's request to not have mandatory counseling as part of the bill because the department cannot afford it. Especially, since the department did not voice any strong objection to the passage of S.B. 416, she added, and since there are reports that the statistics provided to the committee at hearing on S.B. 416 were inaccurate and funds will not be available. She asked for an explanation. Mr. Bayer explained there is only a question about the statistics provided by National Commission on Crime and Delinquency (NCCD), but there has been no determination as to the validity of the question. He asserted he still supported what he said to the committee. Further, he explained he is not saying he does not have the money for the program, but that the funding was in the budget and was cut by the Assembly. He asserted if the requirement for treatment programs is incorporated into this bill, the effect will be to render the entire program unusable. The advantage inherent in the bill, as he sees it, is to allow the department to take "short termers," who are no risk to the community (nonviolent criminals)... ...and put them on house arrest, put them in the community, make sure they have a residence; we can get them some treatment through the Lifeskills program. But what is important to remember is that they are still an inmate and we have even more control over them there than if they were on parole. And we know what they are doing and it's a more intense caseload. This protects the public more than if we are just putting them out on parole or if we're just waiting until a time when they flatten out their sentence and go out without no control..." Mr. Bayer insisted this is a very positive program, but acknowledged it must be used judiciously. He maintained he is as concerned about public safety as anyone. Senator Washington asked what the priorities were that were used to decide the funding question. Apparently the Lifeskills program was funded, he observed, and BADA (Bureau of Alcohol and Drug Abuse) received an increase in their budget, as well as the drug court. But, apparently the treatment side of the 305-type programs have been "axed" or the funding lost, he said. He wondered how these funds could have been "left out." Mr. Bayer could not say exactly where the Lifeskills program sits, as it is a program from the Division of Parole and Probation. As far as the prison program goes, he also could not say why that funding was cut, but he speculated it might have been a failure to articulate clearly the needs of the department. He was unsure. Senator Washington asked if the increase in the BADA funding might allow their counselors time to work with the residential confinement candidates, during an interim period. He stated he was certain they had received an increase and wondered what "role they could play" in the situation. Mr. Bayer explained he had experience as a certified BADA counselor, and he is knowledgeable about the advantages and problems of substance abuse counseling. He said as a result of his experiences, no matter what happens, the department will attempt to provide as good a program as possible, within the confines of the resources available. Mr. Bayer assured the senator the department will be making every effort to evaluate the inmates who are considered for the residential confinement program to ensure they will be successful. Senator Lee asked the committee a procedural question. He wondered, if the budgets are closed, why is the committee still hearing bills that cost money. He expressed confusion and frustration that bills are being heard that cannot possibly be funded. Mr. Bayer reminded him that the bill, as it is currently written, will have no fiscal impact. However, if the committee sees fit to add something to the bill, then it will impact the state and the department fiscally. Senator Adler moved to address a related issue. He pointed to the major change in the youthful offender laws, which will undoubtedly affect the prison population. He asked Mr. Bayer if there is a way to segregate those young inmates from the other population. Mr. Bayer noted the concern has been raised before. He explained that the prison classification system will evaluate each person as they are taken in. Some of the young offenders will not be suited to the prison environment, he agreed. These youths will be identified at intake. Mr. Bayer told the committee the new facilities that are opening up in Lovelock and other places offer options for special housing concerns. He offered his personal assurance that the prison department will find a way to ensure the young offenders' safety. The situation is currently being addressed with particular individuals already in the system. Next, Senator Adler referred to section 8(e) on page 9 of the bill. This refers to counseling being ordered by the court for any person living in the household over whom the court has jurisdiction. He asked for clarification of this provision. Ms. Springgate explained as long as the court has jurisdiction over the individual he can order the counseling. The provision is designed, she told, to "get at" significant others in the household, along with other children, to provide some preventative assistance to those individuals. Senator Adler asked if the bill would conflict with an amendment to A.B. 393 which calls for the suspension of the young person's drivers' license for up to 1 year, along with community service. He explained he believes section 8(h) would conflict with that bill. Ms. Springgate told the senator it was her understanding the bill would not conflict because it makes the license revocation a discretionary sanction for any situation in which the judge feels the juvenile has threatened public safety. The witness reported that law enforcement representatives have testified this provision is, perhaps, the most important provision in the bill because it will affect the high school students who would otherwise engage in dangerous activities. Laurel Stadler, Lobbyist, Mothers Against Drunk Driving (MADD), Lyon County Chapter, spoke from prepared testimony (Exhibit C). As she testified her concerns were addressed by the committee. When Ms. Stadler referred to Mr. Bayer as a politically appointed agency head, Senator Adler stepped to his defense, noting Mr. Bayer has been a longtime employee of the state, who, in all honesty, could not be considered a political appointee. Ms. Stadler continued. When Ms. Stadler voiced her concerns about sections 27 and 28, Senator Washington reminded her of the suggested amendment which would incorporate language from section 28 into section 27. This language would be duplicative of subsections a-c of section 27, he said. Ms. Stadler stated this would be more acceptable. It would not address the concern of having treatment prior to release, but it would make the residential confinement more productive for the community and the offender, she opined. In response to the witness' concern about victim notification, Senator Washington referred to section 27, subsection 2, line 19, which requires the victim to be notified of the proposed release. Ms. Stadler's complaint was that, while they are notified under the provisions in section 27, there is no such requirement under section 28. She referred to a memo drafted by MADD (Exhibit D) which outlines their suggestions for expanding the 305 program for DUI offenders. Her testimony continued as outlined on Exhibit C. Ms. Stadler concluded her remarks with a reference to Senator Lee's question about the closed budget. She opined a closed budget is no good reason to "rubber stamp" bad legislation. She stepped down. Lucille Lusk, Lobbyist, Nevada Concerned Citizens, spoke next expressing her general support for the bill along with concern about some specific sections of it. Nevada Concerned Citizens believe portions of the bill are of particular value, Ms. Lusk reported, especially its focus on the severity of the crime, rather than the use or threatened use of a weapon. She opined the great motivator is the fear produced by a threat of violence; it does not matter whether the fear producer is a gun or a knife or some other item. The involvement and even the sanctioning of parents in the bill is good, she stated, but so too is the emphasis on personal responsibility of the youth offender. She opined the guidelines for sentencing are excellent because it shows an intent to have the penalty fit the crime. Also, the prohibition of commuting certain sentences is extremely important, Ms. Lusk stated, because it provides a modicum of confidence to the public that a person sentenced to life without a possibility of parole will not be released. She voiced support for the broadest definition of the prohibition. Ms. Lusk asked to point out some concerns on pages 16 and 17. She supported the suggestion for separate reporting of numbers of inmates in residential confinement. She noted there is continued opposition to "rewarding probation violators," as is allowed in section 22, starting at line 32, by the modification of their sentences by a subsequent judge at a probation violation hearing. Senator Adler expressed understanding for the concern of the witness, but he explained there really is good reason for such a provision. The alternative, if the judge cannot sentence the probation violator to a term he feels is fair and appropriate, is to give them a dishonorable discharge from probation, he explained. Ms. Lusk continued to be unswayed by this argument. The witness moved to address one final conflict that exists between A.B. 317 and other bills. She voiced great sympathy with the desires expressed by the MADD group to require employment for inmates on the residential confinement program. Additionally, Ms. Lusk spoke to the question of BADA funding. She explained the budget increase "enjoyed" by BADA would not provide them with extra funds, due to the incredible number of federal mandates brought forth in these kinds of programs. She said the $1.3 million increase in the budget was $700,000 short of what would actually bring them to current status. Ms. Lusk agreed it is necessary to make the residential confinement program work, and in order to accomplish this, the treatment programs that are proven to work must also be given a high priority in the budgeting process. She asked the committee to do what they could in that area. Senator Washington interjected he had some conversations with representatives of the BADA program. During those discussions, he said, it was never indicated that the increased funding was already earmarked for federal mandates. Ms. Lusk clarified her statement. She said, the money that is currently in the BADA budget must go to meet the federal requirements. The $1.3 million will be used to support some of the programs being discussed before the committee. The point, she said, is they do not have the option of ignoring the federal mandates first, and what is left over can be used at the state's direction and as need exists. This concluded Ms. Lusk's remarks and she stepped down. There was no further testimony on A.B. 317 and the chairman closed the hearing. He called a work session. However, before the committee could move on, Senator Adler asked for a clarification as to the intent to the provision on commuting sentences. He asked if an individual who is sentenced to death or life without the possibility of parole is found to be innocent of the crime, can the sentence be commuted. The response from the chairman was this different; that such a situation would call for a pardon, not a commutation of the sentence. The bill's provision is in no way intended to prevent an innocent person from going free. Finally, Senator James told the committee there would be meetings with the Governor's staff to resolve those minor issues that remain. He voiced appreciation for the quality and effort of the bill. Senator Porter echoed those sentiments. ASSEMBLY BILL 405: Revises provisions prohibiting sexual exploitation of children. The first bill to be brought to the work session was A.B. 405. Russell J. Shoemaker, Sergeant, Sexual Assault Detail, Las Vegas Metropolitan Police Department (METRO), came to the witness table. The chairman revealed that research of the subject of child pornography has shown the Miller standard does not necessarily apply to child pornography. There is a different definition for child pornography, he stated. He then read from the New York v. Ferber U. S. Supreme Court decision: As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the stated offense be limited to works that visually depict sexual conduct by children below a specified age. The category of sexual conduct proscribed must also be suitably limited and described. The test for child pornography is separate from the obscenity standard as enunciated in Miller, but may be compared to it for the purpose of clarity. He noted the court fails to really give a standard to be applied. The bill currently defines sexual portrayal as the depiction of a person in the manner which appeals to the prurient interest in sex. The chairman asked for a definition of prurient. While this was being sought, Senator James asked the committee to agree to amend the bill to indicate clearly it is not the minor who has to be distributing the materials. Senator Adler said he had discussed the change with the research analyst, who indicated the language to be removed from section 2 of the bill can be reinserted into a later section to retain the crime for having a minor distribute the materials. However, he opined, it is important that prohibition not be in the initial sections. Senator James read the proposed change: "Any person who knowingly prepares, advertises, distributes any item that depicts a minor engaging in or simulating..." Senator Adler concurred in this change. He noted there is a section on page 2 of the bill where the deleted wording can be reinserted to complete the intent of the bill. Senator Titus asked for a definition of a minor. She wondered if the wording in section 7 would apply throughout the bill. This definition is on line 27 of page 2 the bill refers to "under sixteen." Her question is whether this is the age limit throughout the entire bill. Senator James asked Assemblyman Jack D. Close, who was attending the work session, what the age limit was for minor in this bill. Mr. Close explained the original draft of the bill had used 18 years of age as the age limit. Subsequently, the bill was amended because it is difficult to prove the age of an older teen. Thus, the bill adopts language that is in existing law, he noted. Senator James read the definition of prurient from the dictionary: "Marked by or arousing an immoderate or unwholesome interest or desire, especially marked by arousing or appealing to an unusual sexual desire." The words origin comes from a word meaning "crave to be wanton." The chairman suggested an alternative of defining it further by adding wording, "...interest in sex, without serious social, political, literary, or artistic value." This would be a community standard, he explained, under the constitution. Mr. Close concurred with the proposal made by the chairman, noting the difficulty that has been experienced in attempting to define the problem. He agreed, "as long as that would deal with, obviously, the intent of the law...I support anything that you'd feel appropriate in enforcing the process." Once more the chairman read the proposed change "Depiction of a [child] in a manner which appeals to the prurient interest in sex without serious literary, artistic, political, or scientific value," with a possible addition of "as determined by community standards." Ms. Lusk interjected a concern that, since the definition for child pornography is different from that of adult pornography, using the Miller standard would change that standard and weaken it. The chairman noted the proposal is not really the Miller standard. He explained the difference. The main concern is to allow the community to determine what is acceptable and what is prohibited by this law. Ms. Lusk told the committee she has worked in the area for many years, and there is no true objective standard to be applied. She urged the committee to maintain the different standard for child pornography. The chairman assured her that is the intent. Mr. Shoemaker pointed out that whenever law enforcement deals with issues pertaining to sexual conduct by adults involving children, there comes into play some "very strange words and some very broadly based words." The courts have apparently seen the words to be effective. He referred to the Knox decision, where the court spoke frequently of how the child is exhibited, about lascivious conduct. They used simple phrases and words such as "lewd and lascivious" or "prurient." Based on this decision, he opined, it appears these words would stand up to a constitutional challenge. He stated the proposed wording should work. He supported the insertion of the new wording, opining it would not bring the Miller standard into play, but it would make the law "situationally functional" while showing good faith on the part of the state. Senator Adler stated the Legislature must proscribe conduct so that everyone knows what conduct is prohibited and what is not. Thus, it requires a "very tight definition." The chairman once again read the proposed verbiage, noting it is understood to be a community standard objectively applied to the situation. He also noted the addition of the word "coerces" on line 13, page 2. Senator Adler reminded the committee of his suggestion to move the wording "knowingly uses, employs, encourages, advises..." from section 2 to section 6. The chairman said he would accept a motion on the bill. SENATOR LEE MOVED TO AMEND AND DO PASS A.B. 405 AS DISCUSSED ABOVE. SENATOR ADLER SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.) ***** There was no time for further business before the committee and the hearing was adjourned at 10:40 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary June 14, 1995 Page