MINUTES OF THE
ASSEMBLY Committee on Judiciary
Seventieth Session
February 18, 1999
The Committee on Judiciary was called to order at 3:30 p.m., on Thursday, February 18, 1999. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. Mark Manendo, Vice Chairman
Ms. Sharron Angle
Mr. Greg Brower
Ms. Barbara Buckley
Mr. John Carpenter
Mr. Jerry Claborn
Mr. Tom Collins
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Sheila Leslie
Ms. Kathy McClain
Mr. Dennis Nolan
Ms. Genie Ohrenschall
STAFF MEMBERS PRESENT:
Donald O. Williams, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Chris Casey, Committee Secretary
OTHERS PRESENT:
Glen Whorton, Chief, Classification and Planning, Nevada Department of Prisons
Kim Blandino, private citizen
Barbara J. Reed, Douglas County Clerk-Treasurer
Alan Glover, Carson City Clerk-Recorder
Rex Reed, Research Analyst, Nevada Department of Prisons
John Slansky, Assistant Director of Operations, Nevada Department of Prisons
Assembly Bill 78: Eliminates duty of director of department of prisons to return certified copy of judgment of conviction to county clerk upon termination of imprisonment of prisoner. (BDR 14-450)
Chairman Anderson opened the hearing on A.B. 78, which was a bill presented by the Nevada Department of Prisons (NDOP).
Glen Whorton, Chief of Classification and Planning for NDOP opened his testimony by explaining one of the components of the division was sentence management, with responsibility for insuring inmates were properly incarcerated and to authorize their release. His division was also responsible for the allocation of good time and work credits and the satisfaction of their obligation to the State of Nevada. He referred to Nevada Revised Statutes (NRS) chapter 176 that required NDOP to return a judgment of conviction to the County Clerk upon the discharge of a sentence. With one exception, since 1977 he could not recall that element of the law ever being followed. He referred to the exception by pointing in the 1980s the Washoe County Clerk had requested a return on judgments of conviction. They continued sending those for a period of time, until the clerk’s office asked them to stop, because it apparently caused administrative overhead or slowdown for them.
Mr. Whorton conceded it was a component of the law, but it had not been used or carried forward. He stated his predecessors were content to "let this lay." The reason for the bill request was NDOP had a couple of Bill Draft Requests (BDR) submitted related to A.B 78 and one for the parole board calculating sentences. He commented it was an attempt to clean up the language of the bills to conform to their actual practice. It would not have a negative impact on county clerks because it was not a practice his office had done at the time. He stressed if they started the practice again, it might cause more work for the county clerks in the area of filing and file management. He mentioned there would be a fiscal impact on the NDOP staff also. There were six employees who managed the sentences of almost 10,000 offenders, and in the midst of a hiring freeze, they were short one position. He pointed out the position that needed to be filled was the one responsible for controlling release through NDOP.
Mr. Whorton called attention to A.B. 78 and told the committee there were two provisions they would like changed. The first required the jurisdiction that committed the inmate to provide his office the judgment of conviction in triplicate. He felt that was not necessary. His second request was the bill could be effective upon passage.
Chairman Anderson responded if Mr. Whorton was asking for the bill to move forward in a timely fashion, he should not ask for too many amendments. Mr. Whorton replied they could live with it as written and perhaps modify it the following session.
Assemblyman Brower, attempting to understand what Mr. Whorton had requested, asked him if he wanted the committee to eliminate from the statute a paperwork requirement his department had not been following anyway. Mr. Whorton stated that was correct and added it had not been followed for decades. Mr. Brower asked if he knew why the paperwork requirement was in the statute and why the department stopped following it. Mr. Whorton did not know why the requirement was in the statute, and he did not know why they stopped following it. He started with the department in 1973 and became a caseworker in 1975 and that was when he became familiar with the paperwork requirement. The processes and the staff were not as sophisticated then and when one employee left the job they had a very hard time tracking information. Over a period of time because no problems had arisen, it had not been an issue.
Still looking for some clarification, Mr. Brower asked why the language was originally put in the bill. Mr. Whorton did not know but stated upon an inmate’s release, his office notified county authorities for both parole and discharge of offenders. He stressed there was a special mechanism in place to accomplish that, especially for sex offenders, but the one procedure had not been done.
Mr. Carpenter queried how someone would obtain that information if it was not filed with a county clerk. Mr. Whorton said his office received several calls a week for information regarding inmate discharge or their history. He emphasized his office had records of offenders back to the beginning of the Nevada State Prison in the 1860s. There were complete records of those individuals including social security numbers, identification numbers, date of birth, and where their records were located. Mr. Whorton said his office would provide records for ex-offenders if someone requested them.
Chairman Anderson called attention to the history of the statute by noting it was last amended in 1967 and copies dated back to 1866 of the initial drafting.
Kim Blandino, private citizen, provided a copy of a letter that explained why he was opposed to A.B. 78 (Exhibit C).
Mr. Blandino commenced his testimony by stating Mr. Whorton had violated the law by not using a portion of the statute indicating part of due process was the paperwork. He declared he had a certificate of discharge after spending 4 years in prison for violation of custody rights. Because he did not serve the entire sentence of 6 years due to good time credits, his sentence expired and he did not receive parole. He requested a certified copy of the judgment of conviction from a court clerk and was told there was not one. Mr. Blandino contended he would need that document so any law enforcement officer would know he had done his time. He pointed out when a person received a parking ticket something in writing came from the judge stating it had been paid, so when a police officer questioned open warrants, the person could prove it had been paid.
Mr. Blandino noted some inmates had judgment of convictions reversed on either direct appeal or post conviction appeals and it was not reflected because the record was not complete. Because of that, a great deal of extra work was involved to put the paperwork in order. He reiterated his concern that a portion of the code was not being used by stating an example "I’ve been speeding for 20 years, so let’s just make speeding legal now." Mr. Blandino repeated everybody should have access to the public record. He noted the document was not only necessary for a person who had served out a sentence, but for the victim’s families or relatives of the victim’s families, so they could track what had happened to that individual.
Mr. Blandino concluded his testimony by stating he felt the bill was not well thought out and NDOP had not complied with the law. He pointed out it was refreshing for Mr. Whorton to admit they had not been doing it.
Chairman Anderson asked if Mr. Blandino left the prison system directly or was he paroled, to which Mr. Blandino replied his sentence expired and he left "with no tail." He wanted it noted when he was released there was a "foul up" and he should have been returned to county detention, but because paperwork was not completed properly, he was released to the street. That showed how important paperwork was to the system.
Barbara Reed, Douglas County Clerk-Treasurer testified in opposition to A.B. 78. She opened her testimony by stating how surprised she was county clerks were not notified. That was how they established restitution payments by prisoners. She addressed Mr. Brower’s earlier question that the system was set up so the clerks would have a tracking system and then have restitution. She had contacted several county clerks in the state and they were opposed to the bill and were surprised it had come forward. She had spoken to District Court Judge David Gamble and he was opposed to it and was going to ask the lobbyists for district court judges to oppose the bill for the same reason. Ms. Reed pointed out she had not handled the paperwork, but her chief deputy clerk was concerned they were not receiving the information.
Chairman Anderson requested Ms. Reed provide the committee documentation or letters from those individuals who worked with the courts in terms of the process being discussed.
Alan Glover, Carson City Clerk-Recorder, also testified in opposition to A.B. 78. He agreed with Ms. Reed and noted his chief clerk had the same reaction as Ms. Reed’s chief clerk. He observed Mr. Blandino had made a very good point when he stated the county clerk’s office was a good place to obtain a certified copy of such a document. He stated he did not know what the procedure was at the prison or how accessible the information was, but they could get a certified copy at the clerk’s office and it would bring the record to an end. He told Chairman Anderson he would provide him with other comments as well.
Mr. Brower questioned Ms. Reed as to what she received from NDOP if her office was not following section 4 of the bill. She replied she had to return to her office to find out what her office received and if it came from NDOP or Parole and Probation, and stated it would be part of the documentation she would provide to the committee.
Ms. Ohrenschall queried Mr. Whorton if the issue was one of accountability. She used as an example a case that happened many years ago where one prisoner threw boiling water on another prisoner and that person died. She asked if A.B. 78 was a way for the prison to not let "its dirty linen show" by removing that section.
Mr. Whorton offered an explanation, that in addition to his duties as chief of classification and planning, he was also public information officer for the central office in the northern region of NDOP. When a criminal action such as murder occurred in the prison system, their responsibilities were to notify the community through the media. They also referred those cases to the Attorney General’s Office and they were tried for the crime.
Ms. Ohrenschall asked Mr. Whorton if the requirement was removed from the statute would it be possible, by misuse of the system, to end up with a situation where someone was sent to prison and never heard from again. Mr. Whorton replied every inmate had access to the courts, plus he managed an information system that gave a full account of each day the inmate was incarcerated, and the system prevailed on every challenge from the courts since the system was put in place.
Chairman Anderson closed the public hearing on A.B. 78 and brought it back to committee.
He questioned Mr. Whorton about the accountability of the prison system and the tolling of good time credits. Under the old system, prior to the truth in sentencing, if someone really wanted to know what was happening with an inmate, or how many days were left on the sentence, the best source was to "go ask the guy." Mr. Whorton replied he could not believe he said that, because one of the difficulties the prison system had was the old sentence management system was based upon earning good time credits. He noted the management system was complex and they had a very difficult time explaining it, not only to inmates, but to staff, attorneys, and judges. One of the elements of S.B. 416, "truth in sentencing," was to have a system people could understand.
Chairman Anderson reiterated he would like to wait for information from the chief clerks and he would like a short outline from Mr. Whorton’s office on how NDOP completed its procedures on a step-by-step basis. He asked the committee if they had more questions and if they wanted to wait for the information he had requested. They were in agreement.
Mr. Whorton commenced with a slide show presentation about the Nevada Department of Prisons. He gave each of the committee members a manual (Exhibit D) to read along with the slide show. He noted as of midnight on February 18, 1999, the prison system had 9,196 prisoners in house. Those were prisoners actually housed in NDOP facilities. Of those prisoners, 8,521 were men and that represented about 93 percent of the population. There were 675 women who represented about 7 percent of the inmate population.
Referring to the map behind tab one of the manual, seven male institutions were clustered around Carson City and Las Vegas. They also had the Lovelock Correctional Center in the north central part of the state and the Ely State Prison in the eastern part of the state. He pointed out they had one female prison located in North Las Vegas which was operated by the Corrections Corporation of America. That facility was strictly for women and housed only Nevada female inmates. It was a private prison under contract to NDOP.
Mr. Whorton explained there were two restitution centers located in Nevada. One was located in Reno with 88 beds and one in North Las Vegas with 60 beds. The North Las Vegas facility, which was coed, had 22 beds dedicated for females. There were several conservation camps located throughout the department, two of which were specialized operations. One was located in Indian Springs next to the Southern Desert Correctional Center and incorporated the boot camp and the DUI treatment program. Other camps with about 150 inmates were located in the rural areas like Carlin, Wells, Tonopah, and Pioche, and those inmates engaged in activities like fire suppression and reforestation.
Given the population of NDOP Mr. Whorton thought it was important to note the inmate population exceeded the population of the state’s seven smallest counties. NDOP had 2,261 authorized personnel and some of those positions were not filled due to the hiring freeze. He pointed out NDOP was the largest criminal justice agency in the state, the largest being the Metropolitan Police Department. Nevada had the eighth highest incarceration rate in the nation based upon figures from January 1, 1997, which were the most current figures they could find. At that time, the State of Nevada incarcerated 517 people per 100,000 people in our population. In comparison, the national average was 443 per 100,000.
For cost comparison, using the same date as the point of reference, he noted the cost of housing an inmate at NDOP was $39.87 per day, which was the 10th lowest in the nation. The national average to house an inmate was $54.25. The cost to house an inmate in Nevada was relatively low. He pointed out in fiscal year 1998 actual cost per day for inmates was $42.40 which was still below the 1997 national average. That amount interpolated into $15,476 a year to house an inmate in the NDOP. For the current fiscal year, the budget was $15,124 per year per inmate. He explained it was not unusual for the second year of the biennium to have a lower cost per inmate than in the first year of the biennium because of the one shots, special programs, and purchases authorized by the legislature for the first year.
Mr. Whorton continued his presentation by referring to a chart found behind tab two of Exhibit D. The chart displayed the growth of the prison population from 1946 through the population projection year 2006. From 1946 through 1974 there was little growth in the population of NDOP. From 1974 on there was a dramatic rise in the population and Mr. Whorton stated it was troublesome for the State of Nevada on how to manage and provide for the population. Some of the growth was based upon mandatory sentencing to prison, and referred to the slogan, "use a gun go to jail." If a weapon was used as in a robbery, there was no probation, the person was sent to prison.
There was also doubling of sentences for individuals who used deadly weapons, which created a second sentence equal to the length of the first sentence. Mr. Whorton explained if a person received 10 years for robbery, he received an additional 10 years for the use of a deadly weapon. That made the population stack and grow larger over time. He commented during that period there were enhancements for victims over the age of 65, and in 1979 there was a change in the law regarding parole eligibility. It allowed an individual to be eligible for parole after serving one-fourth of their sentence, less good time credits, but not less than 1 year. That was changed by the legislature to one-third of their sentence, less good time credits, but not less than 1 year. He pointed out the time it took for an inmate to get to the parole board had been increased. All of those contributed to the increased population. Mr. Whorton called attention to the fact it was a time of growth for the State of Nevada and Nevada was still the fastest growing state in the Union and Las Vegas was the fastest growing city in the nation.
Mr. Whorton referred to the chart behind tab 11 of Exhibit D when he pointed out NDOP controlled the population by the placement of individuals within the custody classification. He stated each institution met varying needs. Ely State Prison was a maximum security institution for individuals who were recalcitrant, while the other institutions were for nonviolent or compliant types of offenders. Classification was the most important feature of the security plan because it placed the inmate in the right institution. If an inmate was housed in a minimum security prison when he was essentially a maximum inmate, what they had was an inmate who could escape and commit violence. That was why it was important to put the right inmate in the right place to control his behavior. NDOP wanted them placed at the lowest level where they could control their behavior. Mr. Whorton referred to the chart when he explained what unassigned meant. It referred to individuals who were in reception units waiting for an initial classification hearing. Fifty four percent of males in medium security institutions were the largest group of offenders in the department. Close custody included those individuals who were close and max, meaning those who were incarcerated at the maximum security prison. Those inmates represented death row and had a high potential for violence.
Continuing, Mr. Whorton said close custody represented the general population of the institution, which meant they had access to the general areas within the institution under certain conditions. It was not like the general population of a medium security institution where the inmates had general access to the institution without direct supervision by correctional staff members. He commented they were statutorily restricted from going out on minimum custody because they were sex offenders, not ready for release, or they had consecutive sentences. They also represented those individuals who were a risk to escape or walk away. Mr. Whorton referred to the same chart (tab 11, Exhibit D) when he explained the minimum security group, especially with females at 37 percent, represented those individuals who were outside the secure confines of the institution. Those were usually inmates who were in conservation camps. He noted there were over 1,500 individuals in those camps, where the primary activity was working for the Nevada Division of Forestry. He explained fences around the camp defined the property and were not security fences, there were no towers, and no guns. Those individuals at the camps were expected to behave and not walk away.
Mr. Whorton continued his presentation by referring to the custody distribution of the female population (tab 11, Exhibit D). He noted NDOP had a much larger minimum custody distribution because of the types of offenses in which the female prisoners engaged were not as serious as the male offenders. Within the minimum custody group was the community trustee group who went to the restitution centers, worked out of the conservation camps, and held government jobs. They went to work every day and returned to one of the community facilities. Those individuals paid restitution and room and board, which prepared them as much as possible for ultimate release.
Mr. Whorton called attention to a component of their custody distribution called residential confinement, which applied to two groups. The first group was DUI offenders who attended a 30-day in-house treatment program located at Indian Springs Conservation Camp. If they passed successfully and had an appropriate job and an appropriate place to stay, they were placed on residential confinement. That group lived at home and was placed on electronic monitoring under the supervision of parole and probation. The second group was for conventional offenders who were non-violent individuals without prior felony convictions who were allowed to live under the same conditions as group one.
Mr. Whorton stated the mechanism that placed individuals in those custody categories was called classification. A committee of correctional case work specialists made recommendations for changes within the institution and for custody level, which were approved by the central office staff. All recommendations were embodied in the Nevada corrections information system, which was the system that created the information found in Exhibit D.
Chairman Anderson asked Mr. Whorton how to use the manual (Exhibit D), to which Mr. Whorton explained there was a narrative included in each section which explained the charts but noted his department would be available to answer questions from the committee or provide additional information. He went on to point out some of the different charts within the manual and repeated his office would be available to explain each one.
Mr. Whorton called attention to tab 11, Exhibit D regarding offense distribution. In noting the male population, if drug offenses (18 percent) and sex offenses (14 percent) were combined, over 50 percent of the male population was in for violent (37 percent) or sex offenses. Remaining offenses were distributed among property, DUI, and other, which were status offenses such as ex-felons in possession of a firearm. Female offense distribution showed a dramatic reduction in violent offenses (22 percent), but a dramatic increase in drug (37 percent) and property (29 percent) offenses.
Mr. Whorton moved on to felony categories (tab 11, Exhibit D) which demonstrated the distribution of offenses among the sentencing categories that was created by S.B. 416 in 1995. He informed the committee what each category meant, starting with category A. It represented offenses of 10 to life plus the death penalty. Category B represented offenses from 1 to 20, depending upon the offense, such as robbery, which had 2 to 15 years. Category C was generally 1 to 5, category D was 1 to 4, and category E was 1 to 4, but required an automatic placement on probation as an attempt to reserve prison beds for the more serious offenders. He noted there had been some modification from the 1997 session that allowed judges to directly sentence category E offenders based upon prior felony convictions and their status on parole and probation. Chairman Anderson asked if the statistical information he just pointed out was in the manual (Exhibit D), to which Mr. Whorton replied it was not, but he would provide the committee a summary of the information.
Mr. Whorton turned attention to the female felony categories by noting they had fewer category B, but categories C and D were more prevalent and category A was much smaller. He mentioned women did not tend to get involved in violent type offenses as often as men.
Mr. Whorton invited the committee to look at the chart behind tab 13, Exhibit D, which dealt with prior felony convictions and the distribution of prior felonies for individuals incarcerated. He noted over 52 percent of individuals incarcerated did not have prior felony convictions. It could be misleading because it did not mean individuals coming to prison on their first felony conviction did not have a significant criminal justice history. It did not take into account juvenile history or misdemeanor history, and many individuals had originally been placed on probation and then went to prison due to misconduct on their part while under supervision. He indicated female inmates who did not have prior felony convictions were 57 percent, compared to 52 percent of the male population. When those statistics were created they took each count of a conviction as a singular prior felony, so that concurrent sentences did not diminish the number of prior felony convictions.
Assemblyman Carpenter asked if inmates with three or more convictions were habitual criminals? Mr. Whorton thought the largest percentage of that type of individual was not incarcerated under habitual criminal statutes. He noted the habitual criminal statutes were used in plea bargaining and in many cases it was pled away for guilty pleas on the root offense. The prison system had a number of individuals serving as habitual offenders and he would provide the number to the committee.
Mr. Whorton called attention to tab 12, Exhibit D informing the committee about the ages of the inmate population. He stated the average age for male prisoners was 35.8 and the average age for female prisoners was 36.1.
Rex Reed, research analyst for NDOP provided the committee with age demographics from information found behind tab 12, Exhibit D. He noted the largest age group for male inmates was ages 30 to 39 years, which represented 37 percent of the male inmate population. The female population had the same situation, where people in their thirties were the largest segment of the population. He directed the committee’s attention to a graph behind the same tab, which gave a bell curve for the ages of male and female populations. He also directed the committee to a graph showing intake population, which he pointed out, was along the same lines as the age graph with one exception, which was concern for the aging population in the prisons.
Chairman Anderson interjected he wanted more information on the intake graph and noted an unusual spike around the mid-to late fifties and wondered if there was an anomaly with a few people who came in beyond the age of 57 or 58 years old.
Mr. Reed responded NDOP housed inmates from ages 15 to 75 years for females and from 15 to 81 for males, which was based on 1998 figures. Chairman Anderson referred to the graph when he asked if it was a correct assumption that older females came in to the system, but older males did not. Mr. Reed did not draw that conclusion, because older inmates of either gender were incarcerated. Mr. Whorton interjected it was difficult at times to make solid statements about the age intake of both genders because the female population was so small.
Mr. Reed directed the committee to a pie graph behind tab 13, Exhibit D which dealt with alcohol and drug use among prisoners. Drugs and alcohol were the largest crime factor in roughly 39 percent of inmates who were incarcerated in their system. He wanted it noted that the study was about drug and alcohol use by prisoners, not their drug and alcohol problems. For example, if he had a beer with his dinner he would be categorized as "some" (23 percent) as shown on the chart, so those inmates did not really have a problem. Data for the graph was self-reported with the exception of crime factor, which they knew for a fact and was why it was put in the statistics. If inmates claimed they had serious alcohol and drug problems or used it somewhat or did not use it at all, that was self-reported.
Assemblywoman Leslie mentioned the committee was to receive statistics from NDOP regarding use of drugs in the prison, and those were not in Exhibit D because the graph referred to use of drugs and alcohol at the time of their crime. Mr. Whorton stated he researched the information and it was complete and just waiting for Director of Prisons, Robert Bayer’s signature. He stated they looked at disappearing misconduct related to individuals who abused prescribed medication, those who refused urine tests, and those actually caught with drugs or alcohol. Mr. Reed interjected the statistics for the graph were based on information collected at the time of intake.
Mr. Whorton indicated they did not get a chance to discuss male and female master plans, but it was detailed and summarized in the manual (Exhibit D).
In closing, Chairman Anderson gave a brief explanation of the issues about which the committee was concerned. He stated it was because there had been criticisms raised toward the prison population and the people who worked at the prison. There was anxiety among state workers relative to the closing of a facility and the committee was concerned about them. There was high praise for those people from Mr. Bayer, but the committee continually heard different statements from the people who worked there. He wanted to point out the issue of whether good time credits were being awarded to female inmates who provided information relative to different situations at the prison. Chairman Anderson also wanted clarification on the total number of employees at NDOP. Mr. Whorton responded it was 2,261 employees and the inmate in-house population was 9,196. He noted a total of over 11,000 individuals were involved in corrections. There were over 12,000 inmates presently on probation and several thousand on parole.
Assemblyman Manendo questioned Mr. Whorton about the Indian Springs facility and if they corrected the problem of the doors locking and staying locked? Mr. Whorton responded there was a capital improvement program completed earlier in the year and it came in under budget and ahead of schedule.
John Slansky, Assistant Director of Operations for NDOP informed the committee the work was completed in December of 1998. He commented he would get the committee an exact date if they would like.
Chairman Anderson thanked Mr. Whorton for his work on the presentation. He contended there was a lasting concern both from the money committees and the Committee on Judiciary as to the operation of the institutions, placement of inmates, paperwork involved, and the alternative sentencing options they would like to see in place.
The Committee on Judiciary adjourned at 4:50 p.m.
Respectfully Submitted:
_______________________
Chris Casey,
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: