SUMMARY--Changes provisions governing supervision of offenders by department of prisons. (BDR 16-73)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: Yes.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to the department of prisons; providing for random testing of offenders for use of controlled substances; restricting certain activities and the possession of certain items by offenders; requiring participation by offenders in programs of education, training and rehabilitation; providing for the evaluation of an offender's progress in such programs; increasing the penalty for sexual conduct between a prisoner and a person or employee who has the prisoner in his custody; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1 Chapter 209 of NRS is hereby amended by adding thereto the provisions set forth as sections 2, 3 and 4 of this act.
Sec. 2 1. The director shall establish a program, to be carried out within each facility and institution, that provides for periodic testing of offenders for use of controlled substances. The program must provide that the selection of offenders to be tested for use of controlled substances must be made on a random basis.
2. The director shall adopt, with the approval of the board, regulations governing the operation of the program. The regulations must set forth the procedure for testing, including, but not limited to:
(a) The type of test to be used;
(b) The manner in which a sample for the test is to be obtained;
(c) The persons who are authorized to obtain a sample for the test; and
(d) The method for preserving the chain of custody of a sample obtained for the test.
3. The department shall inform the offenders in each facility and institution of the requirement to submit to a test and the sanctions for refusing or failing to submit to a test and for using a controlled substance. The department may provide this information through a general notice posted or distributed in each facility and institution.
4. The department shall sanction, pursuant to subsection 5, an offender:
(a) Who refuses or fails to submit to a test;
(b) Whose test detects a controlled substance;
(c) Who manufactures, possesses, uses, sells, supplies, provides, distributes, conceals or stores a controlled substance; or
(d) Who attempts to manufacture, possess, use, sell, supply, provide, distribute, conceal or store a controlled substance.
5. In addition to any other sanction or penalty that may be imposed pursuant to law or regulation, an offender who violates subsection 4 must be sanctioned by:
(a) Forfeiture of all deductions of time earned by the offender before commission of the violation or forfeiture of such part of those deductions as the director considers just, pursuant to NRS 209.451; and
(b) Denial of the privilege to have visitors for a specified period, as determined by the director.
6. If a controlled substance is found in a facility or institution, the director may order that for a specified period:
(a) The offenders housed in the general area where the drugs are found; or
(b) All offenders in the facility or institution,
be confined to their cells or housing units or be denied the privilege to have visitors, or both.
7. The establishment of the program to test offenders for use of controlled substances pursuant to this section does not affect the right or procedures of the department to test an offender for use of a controlled substance based upon reasonable cause.
Sec. 3 The director shall adopt regulations that:
1. Prohibit an offender from engaging in sexual conduct with another offender.
2. Prohibit a facility or institution from providing offenders with access to programming on cable television or satellite television unless the facility or institution limits access solely to educational programming or programming that is designed specifically for use by correctional facilities and institutions and is not otherwise prohibited pursuant to section 4 of this act.
3. Prohibit an offender from having access to programming on broadcast television or a video medium unless the programming consists of:
(a) Programming that is allowed pursuant to paragraph (b); or
(b) Entertainment programming that is not otherwise prohibited pursuant to section 4 of this act.
As used in this paragraph, "video medium" means a motion picture, videotape, videodisc or other similar medium as determined by the director.
Sec. 4 1. The director shall establish a program, to be carried out within each facility and institution, that provides for the review of each item of correspondence possessed or received by an offender during his incarceration.
2. The director shall adopt, with the approval of the board, regulations governing the operation of the program. The regulations must include, but are not limited to, the procedures set forth in this section.
3. Each item of correspondence possessed or received by an offender must be reviewed to determine whether the item of correspondence contains subject matter that:
(a) Is sexually explicit;
(b) Is graphically violent; or
(c) Encourages or glamorizes:
(1) Crime;
(2) The activities of a criminal gang; or
(3) Violence against law enforcement, women, children or members of a particular religion, ethnic group or race.
4. If an item of correspondence contains subject matter listed in subsection 3, the item of correspondence must be reviewed further to determine whether it:
(a) Is detrimental to the rehabilitation of the offender possessing or receiving the item of correspondence; or
(b) Has the potential to disrupt security or promote violence or disorder in the facility or institution.
5. If an item of correspondence reviewed pursuant to subsection 4 is determined to be detrimental to the rehabilitation of the offender, the offender must be prohibited from possessing or receiving that item of correspondence.
6. If an item of correspondence reviewed pursuant to subsection 4 is determined to have the potential to disrupt security or promote violence or disorder in the facility or institution, all offenders in the facility or institution must be prohibited from possessing or receiving that item of correspondence.
7. If an item of correspondence is prohibited pursuant to this section, the offender possessing or receiving the item of correspondence must be provided with notice of the determination and an opportunity to appeal the determination. An appeal must be conducted by a person who was not involved in the initial determination to prohibit the item of correspondence. An appeal may be summarily denied if the appeal involves an item of correspondence that is similar to an item of correspondence that previously has been prohibited.
8. The director may adopt regulations that allow the person operating a facility or institution to restrict to a specified time and place the use or possession of an item of correspondence that:
(a) Includes subject matter listed in subsection 3; and
(b) Is not otherwise prohibited pursuant to this section.
9. The establishment of the program to review items of correspondence pursuant to this section does not affect the right or procedures of the department to review materials received by an offender, including items of correspondence, for other lawful purposes.
10. As used in this section:
(a) "Criminal gang" has the meaning ascribed to it in NRS 213.1263.
(b) "Item of correspondence" means a book, magazine, newsletter, bulletin, pamphlet, sound recording, audiotape, compact disc, computer program, video game, videotape, videodisc, motion picture, film, photograph, drawing or other similar item as determined by the director. The term does not include an item of correspondence that is protected from disclosure pursuant to an attorney-client privilege.
Sec. 5 NRS 209.351 is hereby amended to read as follows:
209.351 The director shall:
1. Establish a system of ongoing classification and evaluation to ensure the individualized custody, care and training of offenders under the department's jurisdiction.
2. Keep, or cause to be kept, records for each offender containing:
(a) The offender's name, age, date of birth, race, sex, height, weight, complexion, color of eyes and hair, peculiarities of build or features.
(b) The offender's place of birth (state, county or city, or country, province or city).
(c) The offender's occupation and whether he can read and write.
(d) The offender's record of conviction, including the date of sentence, name of the judge passing sentence, county from which sentenced, crime charged, date of incarceration, term of imprisonment and expiration date of minimum and maximum terms of imprisonment.
(e) Such other desirable or pertinent information as may be necessary.
3. Maintain a comprehensive record of the behavior of each offender reflecting his accomplishments and progress as well as charges of infractions of regulations, punishments imposed and medical services rendered.
4. Adopt regulations that establish objective criteria for evaluating an offender's participation and progress in an educational or vocational program, program of training in life skills or program of employment. An evaluation conducted pursuant to this subsection must be presented to the state board of parole commissioners when an offender applies or is considered for parole.
Sec. 6 NRS 209.391 is hereby amended to read as follows:
209.391 The director shall:
1. Establish programs to provide medical, psychological, psychiatric and other appropriate forms of counseling to offenders under the jurisdiction of the department in accordance with classification requirements.
2. Administer programs of general education, vocational training, training in life skills and other rehabilitation for offenders established by the board.
3. Within the limits of legislative appropriations, purchase textbooks for use by offenders who are enrolled in courses of general education and vocational training offered by [any] a branch or facility of the University and Community College System of Nevada. [Any] All textbooks purchased pursuant to this section must remain the property of the state and must be reissued to offenders as appropriate.
4. Except as otherwise provided in this subsection, to the extent practicable, require each offender to participate each week in at least 10 hours of general education, vocational training or training in life skills. Training in life skills includes training in the areas of:
(a) Parenting;
(b) Improving human relationships;
(c) Maintaining emotional and physical health;
(d) Preventing domestic violence;
(e) Preventing abuse of alcohol and drugs; and
(f) Budgeting, consumerism and personal finances.
If an offender is participating each week in 40 hours of vocational training pursuant to subsection 1 of NRS 209.461, the director shall, to the extent practicable, require the offender to participate each week in at least 10 hours of general education or training in life skills. The provisions of this subsection do not apply to an offender who is participating in an educational program established pursuant to NRS 209.396 or the program of treatment established pursuant to NRS 209.425.
5. Within the limits of legislative appropriations, establish programs of research, statistics and planning to:
(a) Determine and review periodically the effectiveness of the department's programs of general education, vocational training, training in life skills and other rehabilitation for offenders;
(b) Provide annually, and at other times when so requested, to the board, the governor and the legislature information pertaining to:
(1) The number of offenders who are participating in and who complete those programs;
(2) The effectiveness of those programs in accomplishing their purposes; and
(3) The number of offenders who are returned to prison after their release; and
(c) Effect appropriate changes in the programs established by the board.
Sec. 7 NRS 209.392 is hereby amended to read as follows:
209.392 1. Except as otherwise provided in NRS 209.429, the director may, at the request of an offender who is eligible for residential confinement pursuant to the standards adopted by the director pursuant to subsection 3 and who has:
(a) Established a position of employment in the community;
(b) Enrolled in a program for education or rehabilitation; or
(c) Demonstrated an ability to pay for all or part of the costs of his confinement and to meet any existing obligation for restitution to any victim of his crime,
assign the offender to the custody of the division of parole and probation of the department of motor vehicles and public safety to serve a term of residential confinement, pursuant to NRS 213.380, for not longer than the remainder of his sentence.
2. Upon receiving a request to serve a term of residential confinement from an eligible offender, the director shall notify the division of parole and probation. If any victim of a crime committed by the offender has, pursuant to subsection 3 of NRS 213.130, requested to be notified of an application for parole and provided a current address, the division of parole and probation shall notify the victim of the offender's request and advise the victim that he may submit documents regarding the request to the division of parole and probation. If a current address has not been provided as required by subsection 3 of NRS 213.130, the division of parole and probation must not be held responsible if such notification is not received by the victim.
3. The director, after consulting with the division of parole and probation, shall adopt, by regulation, standards providing which offenders are eligible for residential confinement. The standards adopted by the director must provide that an offender who:
(a) Is not eligible for parole or release from prison within a reasonable period;
(b) Has recently committed a serious infraction of the rules of an institution or facility of the department;
(c) Has not performed the duties assigned to him in a faithful and orderly manner;
(d) Has ever been convicted of:
(1) Any crime involving the use or threatened use of force or violence against the victim; or
(2) A sexual offense;
(e) Has more than one prior conviction for any felony in this state or any offense in another state that would be a felony if committed in this state, not including a violation of NRS 484.3792 or 484.3795;
(f) Has escaped or attempted to escape from any jail or correctional institution for adults; or
(g) Has not made an effort in good faith to participate in or to complete [any] an educational or vocational program , a program of training in life skills, a program of employment or [any] a program of treatment, as ordered by the director,
is not eligible for assignment to the custody of the division of parole and probation of the department of motor vehicles and public safety to serve a term of residential confinement pursuant to this section.
4. If an offender assigned to the custody of the division of parole and probation pursuant to this section escapes or violates any of the terms or conditions of his residential confinement:
(a) The division of parole and probation may, pursuant to the procedure set forth in NRS 213.410, return the offender to the custody of the department . [of prisons.]
(b) The offender forfeits all or part of the credits for good behavior earned by him before the escape or violation, as determined by the director. The director may provide for a forfeiture of credits pursuant to this paragraph only after proof of the offense and notice to the offender, and may restore credits forfeited for such reasons as he considers proper. The decision of the director regarding such a forfeiture is final.
5. The assignment of an offender to the custody of the division of parole and probation pursuant to this section shall be deemed:
(a) A continuation of his imprisonment and not a release on parole; and
(b) For the purposes of NRS 209.341, an assignment to a facility of the department , [of prisons,]
except that the offender is not entitled to obtain any benefits or to participate in any programs provided to offenders in the custody of the department . [of prisons.]
6. A person does not have a right to be assigned to the custody of the division of parole and probation pursuant to this section, or to remain in that custody after such an assignment, and it is not intended that the provisions of this section or of NRS 213.371 to 213.410, inclusive, create any right or interest in liberty or property or establish a basis for any cause of action against the state, its political subdivisions, agencies, boards, commissions, departments, officers or employees.
Sec. 8 NRS 209.451 is hereby amended to read as follows:
209.451 1. If [any] an offender:
(a) Commits [any] an assault upon his keeper or [any] a foreman, officer, offender or other person, or otherwise endangers life;
(b) Is guilty of [any] a flagrant disregard of the regulations of the department or of the terms and conditions of his residential confinement;
(c) Commits [any] a misdemeanor, gross misdemeanor or felony; [or]
(d) Refuses or fails to participate in an educational or vocational program, program of training in life skills or program of employment;
(e) Violates subsection 4 of section 2 of this act; or
(f) In a civil action, in state or federal court, is found by the court to have presented a pleading, written motion or other document in writing to the court which:
(1) Contains a claim or defense that is included for an improper purpose, including, without limitation, for the purpose of harassing his opponent, causing unnecessary delay in the litigation or increasing the cost of the litigation;
(2) Contains a claim, defense or other argument which is not warranted by existing law or by a reasonable argument for a change in existing law or a change in the interpretation of existing law; or
(3) Contains allegations or information presented as fact for which evidentiary support is not available or is not likely to be discovered after further investigation,
he forfeits all deductions of time earned by him before the commission of that offense or act, or forfeits such part of those deductions as the director considers just.
2. If [any] an offender commits a serious violation [of any] of the regulations of the department or of the terms and conditions of his residential confinement, he may forfeit all or part of such deductions, in the discretion of the director.
3. A forfeiture may be made only by the director after proof of the commission of an act prohibited pursuant to [subsection 1] this section and notice to the offender in the manner prescribed in the regulations of the department. The decision of the director regarding a forfeiture is final.
4. The director may restore credits forfeited for such reasons as he considers proper.
Sec. 9 NRS 209.461 is hereby amended to read as follows:
209.461 1. The director shall:
(a) To the greatest extent possible, approximate the normal conditions of training and employment in the community.
(b) Except as otherwise provided in this paragraph, to the extent practicable, require each offender, except those whose behavior is found by the director to preclude participation, to spend 40 hours each week in a program of vocational training or a program of employment, unless excused for a medical reason or to attend educational classes in accordance with NRS 209.396. The director shall require as a condition of employment that an offender sign an authorization for the deductions from his wages made pursuant to NRS 209.463. Authorization to make the deductions pursuant to NRS 209.463 is implied from the employment of an offender and a signed authorization from the offender is not required for the director to make the deductions pursuant to NRS 209.463.
(c) Use the earnings from services and manufacturing conducted by the institutions and the money paid by private employers who employ the offenders to offset the costs of operating the prison system and to provide wages for the offenders being trained or employed.
(d) Provide equipment, space and management for services and manufacturing by offenders.
(e) Employ craftsmen and other personnel to supervise and instruct offenders.
(f) Except as otherwise provided in NRS 209.383, contract with governmental agencies and private employers for the employment of offenders, including their employment on public works projects under contracts with the state and with local governments.
(g) Contract for the use of offenders' services and for the sale of goods manufactured by offenders.
2. Every program for the employment of offenders established by the director must:
(a) Employ the maximum number of offenders possible;
(b) Except as otherwise provided in NRS 209.192, provide for the use of money produced by the program to reduce the cost of maintaining the offenders in the institutions;
(c) Have an insignificant effect on the number of jobs available to the residents of this state; and
(d) Provide occupational training for offenders.
3. Each fiscal year, the cumulative profits and losses, if any, of the programs for the employment of offenders established by the director must result in a profit for the department. The following must not be included in determining whether there is a profit for the department:
(a) Fees credited to the fund for prison industries pursuant to NRS 482.268, any revenue collected by the department for the leasing of space, facilities or equipment within the institutions or facilities of the department and any interest or income earned on the money in the fund for prison industries.
(b) The selling expenses of the central administrative office of the programs for the employment of offenders. As used in this paragraph, "selling expenses" means delivery expenses, salaries of sales personnel and related payroll taxes and costs, the costs of advertising and the costs of display models.
(c) The general and administrative expenses of the central administrative office of the programs for the employment of offenders. As used in this paragraph, "general and administrative expenses" means the salary of the assistant director of industrial programs and the salaries of any other personnel of the central administrative office and related payroll taxes and costs, the costs of telephone usage and the costs of office supplies used and postage used.
4. The director may, with the approval of the board:
(a) Lease spaces and facilities within any institution of the department to private employers to be used for the vocational training and employment of offenders.
(b) Grant to reliable offenders the privilege of leaving institutions or facilities of the department at certain times for the purpose of vocational training or employment.
5. An offender who refuses to participate in a program of employment to which he has been assigned:
(a) Forfeits all deductions of time earned by him before such refusal occurred or forfeits such part of those deductions as the director considers just, pursuant to NRS 209.451; and
(b) May be confined to a cell or housing unit for a period of 23 hours per day for a reasonable time, as determined by the director.
6. The provisions of this chapter do not create a right on behalf of the offender to employment or to receive the federal or state minimum wage for any employment and do not establish a basis for any cause of action against the state or its officers or employees for employment of an offender or for payment of the federal or state minimum wage to an offender.
Sec. 10 NRS 212.187 is hereby amended to read as follows:
212.187 1. It is unlawful for:
(a) A prisoner who is in lawful custody or confinement to engage voluntarily in sexual conduct with a person who has custody of him or an employee of the institution in which he is confined; or
(b) A person who has custody of a prisoner or who is an employee of an institution in which a prisoner is confined, to engage voluntarily in sexual conduct with a prisoner.
2. A prisoner, person who has custody of a prisoner or an employee of an institution in which a prisoner is confined who violates the provisions of subsection 1 is guilty of a category D felony and shall be punished pursuant to NRS 193.130.
3. As used in this section, " sexual conduct " means acts of masturbation, homosexuality, sexual intercourse or physical contact with another's unclothed genitals or pubic area.
Sec. 11 The amendatory provisions of section 10 of this act do not apply to offenses that are committed before October 1, 1997.