Senate Bill No. 113

Senate Bill No. 113-Committee on Judiciary

CHAPTER

450

AN ACT relating to offenders; requiring the director of the department of prisons to adopt regulations establishing a program to prevent an offender from possessing or receiving certain publications; providing for the random testing of offenders for use of alcohol or controlled substances; prohibiting sexual conduct between an offender and another person under certain circumstances; providing a penalty; making appropriations; and providing other matters properly relating thereto.

[Approved July 16, 1997]

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 and 3 of this act.
Sec. 2. 1. The director shall adopt, with the approval of the board, regulations establishing and governing a program, to be carried out within each facility and institution, to prevent an offender from possessing or receiving a publication which is detrimental to his rehabilitation or which has the potential to disrupt security or promote violence or disorder in the facility or institution because the subject matter of the publication:
(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.
2. The regulations must provide that if an offender is prohibited from possessing or receiving a publication pursuant to this section, the offender possessing or receiving the publication must be provided with notice of the determination and an opportunity to appeal the determination. An appeal may be summarily denied if the appeal involves a publication that is similar to a publication that previously has been prohibited.
3. The establishment of the program required pursuant to this section does not affect:
(a) The authority of the department to review materials that are possessed or received by an offender, including, but not limited to, publications, for any other lawful purpose or reason; or
(b) The procedures used by the department to conduct such reviews.
4. The department and its officers, employees and independent contractors are immune from liability for damages arising from an act or omission that allows an offender to possess or receive a publication that is prohibited pursuant to this section.
5. As used in this section:
(a) "Criminal gang" has the meaning ascribed to it in NRS 213.1263.
(b) "Publication" means a book, magazine, newsletter, bulletin, pamphlet or other similar item as determined by the director.
Sec. 3. 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 alcohol and controlled substances. The program must provide that the selection of offenders to be tested for use of alcohol and 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 types of tests to be used;
(b) The manner in which a sample for a test is to be obtained;
(c) The persons who are authorized to obtain a sample for a test; and
(d) The method for preserving the chain of custody of a sample obtained for a 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 alcohol or a controlled substance. The department may provide this information through a general notice posted or distributed in each facility and institution.
4. The department may sanction, pursuant to subsection 5, an offender:
(a) Who refuses or fails to submit to a test;
(b) Whose test detects alcohol or a controlled substance;
(c) Who manufactures, possesses, uses, sells, supplies, provides, distributes, conceals or stores alcohol or a controlled substance; or
(d) Who attempts to manufacture, possess, use, sell, supply, provide, distribute, conceal or store alcohol or 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 may 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 alcohol or 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 alcohol or controlled substance is 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 alcohol and controlled substances pursuant to this section does not affect:
(a) The authority of the department to test an offender for use of alcohol or a controlled substance for any other lawful purpose or reason; or
(b) The procedures used by the department to conduct such tests.
Sec. 4. 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) 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 [,] or if an offender violates subsection 4 of section 3 of this act, 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. 5. 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] , other than residential confinement, and who voluntarily engages in sexual conduct with [a person who has custody of him or an employee of the institution in which he is confined; or
(b)] another person is guilty of a category D felony and shall be punished as provided in NRS 193.130.
2. 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 engages in sexual conduct with a prisoner [.
2.] who is in lawful custody or confinement, other than residential confinement, is guilty of a category D felony and shall be punished as provided in NRS 193.130.
3. As used in this section, " sexual [conduct means] conduct":
(a) Includes acts of masturbation, homosexuality, sexual intercourse or physical contact with [another's] another person's clothed or unclothed genitals or pubic area [.] to arouse, appeal to or gratify the sexual desires of a person.
(b) Does not include acts of a person who has custody of a prisoner or an employee of the institution in which the prisoner is confined that are performed to carry out the necessary duties of such a person or employee.
Sec. 6. 1. There is hereby appropriated from the state general fund to the department of prisons for carrying out the provisions of this act:

For the fiscal year 1997-1998 $257,277

For the fiscal year 1998-1999 $274,384

2. Any balance of the sums appropriated by subsection 1 remaining at the end of the respective fiscal years must not be committed for expenditure after June 30 of the respective fiscal years and reverts to the state general fund as soon as all payments of money committed have been made.
Sec. 7. The amendatory provisions of section 5 of this act do not apply to offenses that are committed before October 1, 1997.
Sec. 8. 1. This section and section 6 of this act become effective on July 1, 1997.
2. Sections 1 to 5, inclusive, and 7 of this act become effective on October 1, 1997.
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