(REPRINTED WITH ADOPTED AMENDMENTS) SECOND REPRINT
Senate Bill No. 5-Committee on Judiciary
Prefiled on January 8, 1997
____________
Referred to Committee on Judiciary
SUMMARY--Requires certification before offenders convicted of certain crimes may be released on probation or parole. (BDR 15-288)
FISCAL NOTE: Effect on Local Government: Yes.
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 crimes; requiring certification by a panel before offenders convicted of certain crimes may be released on parole; requiring certification by a psychologist or a psychiatrist before offenders convicted of certain crimes may be released on probation; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
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Section 1 NRS 201.195 is hereby amended to read as follows:
201.195 1. A person who incites, entices or solicits a minor to engage in acts which constitute the infamous crime against nature:
(a) If the minor actually engaged in such acts as a result, is guilty of a category D felony and shall be punished as provided in NRS 193.130.
(b) If the minor did not engage in such acts:
(1) For the first offense, is guilty of a gross misdemeanor.
(2) For any subsequent offense, is guilty of a category D felony and shall be punished as provided in NRS 193.130.
2. [A person convicted of violating any of the provisions of subsection 1 may not be:
(a) Paroled unless a board consisting of:
(1) The administrator of the mental hygiene and mental retardation division of the department of human resources or his designee;
(2) The director of the department of prisons or his designee; and
(3) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others.
(b) Released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.
3.] As used in this section, the "infamous crime against nature" means anal intercourse, cunnilingus or fellatio between natural persons of the same sex. Any sexual penetration, however slight, is sufficient to complete the infamous crime against nature.
Sec. 2 NRS 201.210 is hereby amended to read as follows:
201.210 1. A person who commits any act of open or gross lewdness is guilty:
(a) For the first offense, of a gross misdemeanor.
(b) For any subsequent offense, of a category D felony and shall be punished as provided in NRS 193.130.
2. [A person convicted of violating the provisions of subsection 1 must not be:
(a) Paroled unless a board consisting of:
(1) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(2) The director of the department of prisons; and
(3) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others. For the purposes of this paragraph, the administrator and the director may each designate a person to represent him on the board.
(b) Released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.
3.] For the purposes of this section, the breast feeding of a child by the child's mother does not constitute an act of open or gross lewdness.
Sec. 3 NRS 201.220 is hereby amended to read as follows:
201.220 1. A person who makes any open and indecent or obscene exposure of his person, or of the person of another, is guilty:
(a) For the first offense, of a gross misdemeanor.
(b) For any subsequent offense, of a category D felony and shall be punished as provided in NRS 193.130.
2. [A person convicted of violating any of the provisions of subsection 1 must not be:
(a) Paroled unless a board consisting of:
(1) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(2) The director of the department of prisons; and
(3) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others. For the purposes of this paragraph, the administrator and the director may each designate a person to represent him on the board.
(b) Released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.
3.] For the purposes of this section, the breast feeding of a child by the child's mother does not constitute an act of open and indecent or obscene exposure of her body.
Sec. 4 NRS 201.230 is hereby amended to read as follows:
201.230 [1.] A person who willfully and lewdly commits any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10,000.
[2. A person convicted of violating any of the provisions of subsection 1 must not be:
(a) Paroled unless a board consisting of:
(1) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(2) The director of the department of prisons; and
(3) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others. For the purposes of this paragraph, the administrator and the director may each designate a person to represent him on the board.
(b) Released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.]
Sec. 5 NRS 201.450 is hereby amended to read as follows:
201.450 1. A person who commits a sexual penetration on the dead body of a human being is guilty of a category A felony and shall be punished by imprisonment in the state prison:
(a) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 5 years has been served;
(b) For a definite term of 15 years, with eligibility for parole beginning when a minimum of 5 years has been served;
(c) By a fine of not more than $20,000; or
(d) By both fine and imprisonment.
2. [A person convicted of a violation of subsection 1 must not be granted probation or parole unless a psychologist licensed to practice in the State of Nevada or a psychiatrist licensed to practice medicine in the State of Nevada certifies that the person is not a menace to the health, safety or morals of others.
3.] For the purposes of this section, "sexual penetration" means cunnilingus, fellatio or any intrusion, however slight, of any part of a person's body or any object manipulated or inserted by a person into the genital or anal openings of the body of another, including sexual intercourse in what would be its ordinary meaning if practiced upon the living.
Sec. 6 Chapter 207 of NRS is hereby amended by adding thereto a new section to read as follows:
1. Except as otherwise provided in subsection 4, if a person is convicted of coercion or attempted coercion in violation of paragraph (a) of subsection 2 of NRS 207.190, the court shall, at the request of the prosecuting attorney, conduct a separate hearing to determine whether the offense was sexually motivated. A request for such a hearing may not be submitted to the court unless the prosecuting attorney, not less than 72 hours before the commencement of the trial, files and serves upon the defendant a written notice of his intention to request such a hearing.
2. A hearing requested pursuant to subsection 1 must be conducted before:
(a) The court imposes its sentence; or
(b) A separate penalty hearing is conducted.
3. At the hearing, only evidence concerning the question of whether the offense was sexually motivated may be presented. The prosecuting attorney must prove beyond a reasonable doubt that the offense was sexually motivated.
4. A person may stipulate that his offense was sexually motivated before a hearing held pursuant to subsection 1 or as part of an agreement to plead guilty, guilty but mentally ill or nolo contendere.
5. The court shall enter in the record:
(a) Its finding from a hearing held pursuant to subsection 1; or
(b) A stipulation made pursuant to subsection 4.
6. For the purposes of this section, an offense is "sexually motivated" if one of the purposes for which the person committed the offense was his sexual gratification.
Sec. 7 NRS 207.180 is hereby amended to read as follows:
207.180 1. Any person who knowingly sends or delivers any letter or writing:
(a) Threatening to accuse another of a crime or misdemeanor, or to expose or publish any of his infirmities or failings, with intent to extort money, goods, chattels or other valuable thing; or
(b) Threatening to maim, wound, kill or murder, or to burn or destroy his house or other property, or to accuse another of a crime or misdemeanor, or expose or publish any of his infirmities, though no money, goods, chattels or other valuable thing be demanded,
is guilty of a misdemeanor.
2. Any person who:
(a) Writes and sends, or writes and delivers, either through the mail, express, by private parties or otherwise, any anonymous letter, or any letter bearing a fictitious name, charging any person with crime; or
(b) Writes and sends any anonymous letter or letters bearing a fictitious name, containing vulgar or threatening language, obscene pictures, or containing reflections upon his standing in society or in the community,
is guilty of a misdemeanor.
[3. No person convicted of violating the provisions of subsection 1 or 2 may be released on probation unless a psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada certifies that the person so convicted is not a menace to the health, safety or morals of others.]
Sec. 8 NRS 176.185 is hereby amended to read as follows:
176.185 1. Except as otherwise provided in this section, whenever a person is found guilty in a district court of a crime upon verdict or plea, except in cases of murder of the first or second degree, kidnaping in the first degree, sexual assault, attempted sexual assault of a child who is less than 16 years of age, an offense for which the suspension of sentence or the granting of probation is expressly forbidden, or where the person is found to be a habitual criminal pursuant to NRS 207.010, a habitually fraudulent felon pursuant to NRS 207.014 or a habitual felon pursuant to NRS 207.012, the court:
(a) If the person is found guilty of a category E felony, shall suspend the execution of the sentence imposed and grant probation to the person pursuant to NRS 193.130; or
(b) If the person is found guilty of any other felony, a gross misdemeanor or a misdemeanor, may suspend the execution of the sentence imposed and grant probation as the court deems advisable.
2. In determining whether to place a person on probation, the court shall not consider whether the person has the financial ability to participate in a program of probation secured by a surety bond established pursuant to NRS 176.1851 to 176.18525, inclusive.
3. The court may not grant probation to a person convicted of [indecent or obscene exposure or of lewdness only if a certificate of a psychologist or psychiatrist, as required by NRS 201.210, 201.220 or 201.230, is received by the court.] an offense listed in subsection 4 unless a psychologist licensed to practice in the State of Nevada or a psychiatrist licensed to practice medicine in the State of Nevada certifies that the person is not a menace to the health, safety or morals of others.
4. The provisions of subsection 3 apply to a person convicted of:
(a) Attempted sexual assault of a person who is 16 years of age or older pursuant to NRS 200.366.
(b) Statutory sexual seduction pursuant to NRS 200.368.
(c) Battery with intent to commit sexual assault pursuant to NRS 200.400.
(d) Abuse or neglect of a child pursuant to NRS 200.508.
(e) An offense involving pornography and a minor pursuant to NRS 200.710 to 200.730, inclusive.
(f) Incest pursuant to NRS 201.180.
(g) Solicitation of a minor to engage in acts constituting the infamous crime against nature pursuant to NRS 201.195.
(h) Open or gross lewdness pursuant to NRS 201.210.
(i) Indecent or obscene exposure pursuant to NRS 201.220.
(j) Lewdness with a child pursuant to NRS 201.230.
(k) Sexual penetration of a dead human body pursuant to NRS 201.450.
(l) A violation of NRS 207.180.
(m) An attempt to commit an offense listed in paragraphs (b) to (l), inclusive.
(n) Coercion or attempted coercion that is determined to be sexually motivated pursuant to section 6 of this act.
5. The court shall consider the standards adopted pursuant to NRS 213.10988 and the recommendation of the chief parole and probation officer, if any, in determining whether to grant probation.
[4.] 6. If the court determines that a defendant is otherwise eligible for probation but requires more supervision than would normally be provided to a person granted probation, the court may, in lieu of sentencing him to a term of imprisonment, grant him probation pursuant to the program of intensive supervision established pursuant to NRS 176.198.
[5.] 7. The court shall not, except as otherwise provided in this subsection, grant probation to a person convicted of a felony until the court receives a written report from the chief parole and probation officer. The chief parole and probation officer shall submit a written report not later than 45 days following a request for a probation investigation from the county clerk, but if a report is not submitted by the chief parole and probation officer within 45 days the district judge may grant probation without the written report.
[6.] 8. If the court determines that a defendant is otherwise eligible for probation, the court shall when determining the conditions of that probation consider the imposition of such conditions as would facilitate timely payments by the defendant of his obligation, if any, for the support of a child and the payment of any such obligation which is in arrears.
Sec. 9 NRS 176.198 is hereby amended to read as follows:
176.198 1. The chief parole and probation officer shall develop a program for the intensive supervision of a person granted probation pursuant to subsection [4] 6 of NRS 176.185.
2. The program of intensive supervision must include an initial period of electronic supervision of the probationer with an electronic device approved by the division. The device must be minimally intrusive and limited in capability to recording or transmitting information concerning the probationer's presence at his residence, including, but not limited to, the transmission of still visual images which do not concern the probationer's activities while inside his residence. A device which is capable of recording or transmitting:
(a) Oral or wire communications or any auditory sound; or
(b) Information concerning the probationer's activities while inside his residence,
must not be used.
Sec. 10 NRS 213.1099 is hereby amended to read as follows:
213.1099 1. Except as otherwise provided in this section and NRS 213.1215, the board may release on parole a prisoner who is otherwise eligible for parole pursuant to NRS 213.107 to 213.157, inclusive.
2. In determining whether to release a prisoner on parole, the board shall consider:
(a) Whether there is a reasonable probability that the prisoner will live and remain at liberty without violating the laws;
(b) Whether the release is incompatible with the welfare of society;
(c) The seriousness of the offense and the history of criminal conduct of the prisoner;
(d) The standards adopted pursuant to NRS 213.10885 and the recommendation, if any, of the chief; and
(e) Any documents or testimony submitted by a victim notified pursuant to NRS 213.130.
3. When a person is convicted of a felony and is punished by a sentence of imprisonment, he remains subject to the jurisdiction of the board from the time he is released on parole under the provisions of this chapter until the expiration of the maximum term of imprisonment imposed by the court less any credits earned to reduce his sentence pursuant to chapter 209 of NRS.
4. Except as otherwise provided in NRS 213.1215, the board may not release on parole a prisoner whose sentence to death or to life without possibility of parole has been commuted to a lesser penalty unless it finds that the prisoner has served at least 20 consecutive years in the state prison, is not under an order to be detained to answer for a crime or violation of parole or probation in another jurisdiction, and that he does not have a history of:
(a) Recent misconduct in the institution, and that he has been recommended for parole by the director of the department of prisons;
(b) Repetitive criminal conduct;
(c) Criminal conduct related to the use of alcohol or drugs;
(d) Repetitive sexual deviance, violence or aggression; or
(e) Failure in parole, probation, work release or similar programs.
5. In determining whether to release a prisoner on parole pursuant to this section, the board shall not consider whether the prisoner will soon be eligible for release pursuant to NRS 213.1215.
6. The board shall not release on parole a sex offender until the law enforcement agency in whose jurisdiction a sex offender will be released on parole has been provided an opportunity to give the notice required by the attorney general pursuant to NRS 213.1253.
7. The board shall not release on parole a prisoner convicted of an offense listed in subsection 8 unless a panel consisting of:
(a) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(b) The director of the department of prisons; and
(c) A psychologist licensed to practice in the State of Nevada or a psychiatrist licensed to practice medicine in the State of Nevada,
certifies that the prisoner was under observation while confined and is not a menace to the health, safety or morals of others. For the purposes of this subsection, the administrator and the director may each designate a person to represent him on the panel.
8. The provisions of subsection 7 apply to a prisoner convicted of:
(a) Sexual assault pursuant to NRS 200.366.
(b) Statutory sexual seduction pursuant to NRS 200.368.
(c) Battery with intent to commit sexual assault pursuant to NRS 200.400.
(d) Abuse or neglect of a child pursuant to NRS 200.508.
(e) An offense involving pornography and a minor pursuant to NRS 200.710 to 200.730, inclusive.
(f) Incest pursuant to NRS 201.180.
(g) Solicitation of a minor to engage in acts constituting the infamous crime against nature pursuant to NRS 201.195.
(h) Open or gross lewdness pursuant to NRS 201.210.
(i) Indecent or obscene exposure pursuant to NRS 201.220.
(j) Lewdness with a child pursuant to NRS 201.230.
(k) Sexual penetration of a dead human body pursuant to NRS 201.450.
(l) An attempt to commit an offense listed in paragraphs (a) to (l), inclusive.
(m) Coercion or attempted coercion that is determined to be sexually motivated pursuant to section 6 of this act.
Sec. 11 NRS 200.375 is hereby repealed.
Sec. 12 The amendatory provisions of section 6 of this act do not apply to an offense committed before October 1, 1997.
Sec. 13 The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
TEXT OF REPEALED SECTION
200.375Limitations on parole.
1. A person convicted of sexual assault or attempted sexual assault may not be paroled unless a board consisting of:
(a) The administrator of the mental hygiene and mental retardation division of the department of human resources;
(b) The director of the department of prisons; and
(c) A psychologist licensed to practice in Nevada or a psychiatrist licensed to practice medicine in Nevada,
certifies that the person so convicted was under observation while confined in an institution of the department of prisons and is not a menace to the health, safety or morals of others.
2. For the purposes of this section, the administrator and the director may each designate a person to represent him on the board.