MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
March 14, 2003
The Committee on Judiciarywas called to order at 8:08 a.m., on Friday, March 14, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, 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.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Mr. David Brown (excused)
Ms. Barbara Buckley (excused)
Ms. Genie Ohrenschall (excused)
GUEST LEGISLATORS PRESENT:
Senator Valerie Wiener, Senatorial District No. 3, Clark County
Assemblyman David Parks, District No. 41, Clark County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Carrie Lee, Committee Secretary
OTHERS PRESENT:
Jodi Esposito, Citizen, Las Vegas, Nevada
Ben Graham, Legislative Representative, Clark County District Attorney’s Office; and Nevada District Attorneys Association, Las Vegas, Nevada
May Shelton, representing Washoe County Social Services
Lucille Lusk, Cochairman, Nevada Concerned Citizens, Las Vegas, Nevada
Helen Foley, representing Clark County Health District
Lisa Foster, American Automobile Association Nevada
Kirby Burgess, Director, Clark County Department of Juvenile Justice Services
Leonard Pugh, Director, Washoe County Department of Juvenile Services; and President, Nevada Association of Juvenile Justice Administrators, Reno, Nevada
Lt. Stan Olsen, Las Vegas Metropolitan Police Department; and representing the Nevada Sheriffs and Chiefs Association, Las Vegas, Nevada
Kristin Erickson, Chief Deputy District Attorney, Washoe County District Attorney’s Office; and representing the Nevada District Attorneys Association, Reno, Nevada
Chairman Anderson:
The Assembly Committee on Judiciary will please come to order. Good morning Judge [Max W.] Bunch [Argenta Township, Lander County] in Battle Mountain [Nevada]. [Roll called.] A quorum is present. [The Chair reminded the Committee members and those present in the audience of the Standing Rules and appropriate meeting etiquette.] Finally, please note the sign on the table concerning the legality of misrepresenting any facts to a legislator either here in Committee or out of Committee, which is a misdemeanor.
We have the introduction of BDR 57-868.
This is a piece of legislation that I requested as a result of what happened during the 18th Special Session. It relates to some of the medical malpractice issues relative to doctors, who told us that they were concerned about the problems and their insurance rates. This revokes the license of insurers who fail to pay more than 5 percent of their claims filed in a timely manner. It requires managed care organizations to comply with Nevada law on fair and deceptive practices; HMOs (health maintenance organization) are currently not covered by that law. It establishes a health care provider bill of rights and makes medical malpractice insurance companies comply and be liable for their own bad business practices and decisions. It allows all physicians and other interested parties to participate in the medical malpractice insurance rate-setting process. It requires disclosure of decisions made by insurance companies, strengthens the rights of physicians during claim processing, and it requires insurance companies to provide adequate notice if they decide to withdraw from the market.
ASSEMBLYMAN OCEGUERA MOVED FOR INTRODUCTION OF BDR 57-868.
ASSEMBLYMAN CONKLIN SECONDED THE MOTION.
THE MOTION CARRIED. (Mr. Brown, Ms. Buckley, and Ms. Ohrenschall were not present for the vote.)
Chairman Anderson:
Good morning, Senator Wiener. It’s a pleasure to have you here. The Chair of Senate Committee on Judiciary has indicated that he needs you back for his work session.
Senator Valerie Wiener, Senatorial District No. 3, Clark County:
Because one of my bills is up in that one, as well. Mr. Chairman and members of the Committee, it’s a pleasure to be back. This is my first time in your house this session, and I feel right at home in the Assembly Committee on Judiciary. I have always been welcomed here and I appreciate your welcoming me again. Today I’m here to urge your support on Senate Bill 57, and the next one will be S.B. 17. Let me start with this one. This particular bill revises certain provisions; did you want me to do S.B. 17 first, or S.B. 57?
Chairman Anderson:
Let’s open the hearing on S.B. 17.
Senate Bill 17 (1st Reprint): Provides penalty for person who leaves a child 7 years of age or younger unsupervised in motor vehicle under certain circumstances. (BDR 15-586)
Senator Wiener:
I’m here to urge your support for Senate Bill 17. This bill reasonably and responsibly addresses situations when a person leaves a child seven years of age or younger unsupervised in a motor vehicle.
Before I address the bill itself, let me explain why I introduced this particular piece of legislation. Several months ago, I received a telephone call from Jodi Esposito. She asked me if I would consider sponsoring this bill, on this particular subject, which is a personal issue for her. You see, Jodi’s 5-year-old son Michael, who had been a student at Louis Wiener Jr. Elementary School, died as the result of being accidentally locked in the trunk of the family car. Jodi is here today, appearing, I believe, from Las Vegas, and she’ll explain her tragic story in a little more detail to you.
As evidenced by Senate Bill 17, I said Yes to Jodi and had been the proud sponsor of this effort ever since that yes on the telephone. When I did request the bill, I learned that Senator Titus had a similar bill draft request in, and she was very kind to withdraw hers, and that’s why you’ll see her name as the second sponsor on the bill in the Senate; she was very supportive as the process went forward.
When it came to bill drafting, I knew it would be important to address the concerns of many people who would have a concern about this particular issue. And as I do on many of my bills, and as I come before you on other pieces of legislation, one of the systems that I put in place, and have learned from making many mistakes in the past, is I try to assemble a team of people who have an interest in the issue. Of course, the larger the team, the more people you leave out, but we had about ten people who came to the table at each meeting, and often we had a different group of ten at each meeting, and we had several telephone calls. Those meetings were very productive, and I’d like to say, for the record, some of the people who continue to participate in those meetings, were, of course, Jodi Esposito, and other representatives from the organization Kids ‘n Cars. Bob Teuton represented the Clark County District Attorney’s Office, Lt. Stan Olsen represented the Las Vegas Metropolitan Police Department and the Sheriffs and Chiefs Association, Lucille Lusk represented the Nevada Concerned Citizens, and Kathleen Boutin represented the Clark County Health District. Our meetings were very productive, very lengthy, and I want to thank Brenda Erdoes, publicly and on the record, our Legislative Counsel, for participating extensively in the telephone meetings to make sure we could craft language that would address everybody’s concerns.
So what you have before you is a consensus bill. Let me go to the bill itself and describe a little bit about what we intended to do. In Section 1, you’ll see the language “a parent, legal guardian, or other person responsible for a child who is 7 years of age or younger shall not leave the child in a motor vehicle, unless the child is being supervised in the motor vehicle by a person who is at least 14 years of age.” As we studied legislation across the country that addressed this concern, you could throw a number into a hat for the different ages that were used in other states. So in coming up with “7 or younger” in our statutes, according to Mr. Teuton, that is the age range in which a child is presumed not to be able to determine right from wrong. We used “at least 14 years of age” as the delineation there, because, in law, in Nevada, that’s a presumption that that age and older, they can determine right from wrong.
The two key factors that apply to this situation are when, in subsection 1(a), “the conditions present a danger to the health and safety of the child;” or 1(b), “the engine of the motor vehicle is running or the keys to the motor vehicle are anywhere in the passenger compartment.” So that means if the keys are in the trunk of the car, it doesn’t apply in this particular situation. Penalties for this violation are explained in Section 1, subsection 2. A violator will be guilty of a misdemeanor, punishable with a fine of not more than $300, and the court has the discretion to waive or reduce the fine if the person can verify successful completion of a court-approved educational program.
I want to stress that the import of this bill is to help educate parents and other adults about the need to provide safe environments for children. The intent was not to create a punitive measure, though we do have this as something to hold out there that they can waive, and if the parents don’t participate, it’s up to the trier of fact to determine what to do with it. Subsection 3 provides that a law enforcement [officer] or other person who reasonably believed that the child was in danger and entered the car to protect the child will not incur civil liability for that good faith intention, and that person can use reasonable means, of course, to protect the child and remove the child from the car.
An important concern for law enforcement is subsection 4, which states that anything in this section cannot be construed to preclude other prosecution. This was the amendment portion; Mr. Graham can come forward from the district attorney’s point of view. We crafted the words one way, and they wanted to fine-tune it a little bit, and that’s why there’s a first reprint. The concern, up to this point, was that existing statute addresses this kind of scenario as abuse and neglect, and we find, historically, that many law enforcement officers have been reluctant to enter a vehicle until the situation is so dangerous to the child that it could result in death. What we’re trying to do is not allow the circumstance to rise to that level, and encourage intervention when the circumstances are appropriate, not just to save a child from dying, but to save the child, and we don’t want it to rise to the level of a death.
That’s basically the bill, Mr. Chairman, and members of the Committee; it was an interesting experience. This is a bill, though it may not seem so in front of you, required a lot of word-smithing; we hung on one word here and there, at times, though it looks simply drafted, it did take a very strong collaborative effort, and everybody was very willing to address the concerns. These certainly are important guidelines, and an effort to help save our children from being left alone in cars. It’s the hope that with this piece of legislation, we will not incur more deaths and more injuries and more devastation to children who are left alone in vehicles. So it is for these reasons, to encourage parents to learn more if they are indeed ignorant, I’m not saying malicious, but ignorant, of what is required of them to protect their children, and certainly, the effort to protect our children, that I encourage, and urge, your support of Senate Bill 17.
Chairman Anderson:
Questions for the Senator?
Assemblyman Carpenter:
I have a couple of questions. The way “motor vehicle” is described, it says, “every vehicle which is self-propelled,” so that would cover all farm equipment. I guess my only concern is that like a lot of laws, people probably wouldn’t know that that’s covered. I can understand in a car, but when we reach into farm equipment and even ATVs (all-terrain vehicle) and all those kind of things, I guess I would have a question there. And then, I’m wondering, if it’s a law enforcement officer or other person that’s rendering aid, trying to get into the car, why do we have that provision in there that the violation of this section has occurred? Why can’t we just take that out so that people can get in there, because people are not going to know whether this is really a violation? I think they need to have the right to break the window, or whatever they want to do.
Senator Wiener:
The part about the violation, we were very concerned about people’s willingness to enter a vehicle, because it’s, as I say, historically, even law enforcement, who does know what the laws are, has been reluctant to enter unless it rises to the level of what is in current statute, abuse and neglect. Many children who might be at risk, especially in an environment such as we find in extreme temperatures in the south, where, very quickly, children can be put in danger. We tried to allow them to enter without creating, a civil liability, in case they do so. The language is the drafting language to assure that we accomplish that goal; it’s a drafting issue.
Assemblyman Carpenter:
I would just like to put something in here that…and I’ve had this happen, you know. One time I was at a farm sale and I looked in this vehicle and I see this little child in there, and it was a hot day. This child was just screaming and I was lucky; I just got the door open. But my next thought would have been I was going to break the window and get the child out of there, so I don’t know why we have to have that “violation…has occurred.” Would it hurt the bill to take that out? Maybe the bill drafters could help us?
Senator Wiener:
I’m not quite sure I understand what the question is.
Chairman Anderson:
Ms. Lang, did you hear the question, relative to why we need that section of the law?
Risa B. Lang, Committee Counsel:
So the question is concerning the language that says, ”a violation of this section has occurred,” is that correct?
Assemblyman Carpenter:
That is the question.
Chairman Anderson:
If we deleted that from the law, how would the bill be heard? Are we extending a principle to somebody that need not be extended?
Risa Lang:
I think the language “a violation of this section has occurred” is just going to the situation where the person is rendering the services; they wouldn’t be doing it unless they thought that something had occurred. I think it was just in there as a clarification that we’re not providing immunity from civil liability for breaking into the car or taking those actions in any situation, but just when there’s a belief that something has occurred.
Senator Wiener:
If I may clarify, Mr. Chairman, and the “something occurred” would be relative to Section 1, where we’re talking about leaving that child under the age of 7, if there’s a situation of danger, or the keys are in the car, the car’s running. That’s the violation; if they do that, they are guilty of the misdemeanor, not the person who enters the car in good faith that the child is at risk.
And if may address the motor vehicle, my understanding is that it would cover all motor vehicles. It’s not specific to an automobile, but it would cover motor vehicles, probably described in NRS.
Vice Chairman Oceguera:
A couple of comments, concerns, questions, I guess. Based on my experience, and I can tell you I go on these calls probably once every go-around, which would be once every three shifts. We get a 9-1-1 call from someone saying that they’ve locked their child in their car.
Chairman Anderson:
Mr. Oceguera, let me interrupt for just a second. For those of you who may not realize, Mr. Oceguera is a firefighter when not otherwise engaged as a legislator, so it’s not like he responds on a regular basis to every haphazard 9‑1‑1 call, although I‘m sure some days he feels that way. I wanted to clarify that.
Vice Chairman Oceguera:
Yes, generally my constituents don’t call to have me get their kids out of their cars, however…
Senator Wiener:
They will now.
Vice Chairman Oceguera:
I can see and I can appreciate where you’re going with this. One concern is that generally, people are very upset when they do this, and generally it’s an accident. They forget and they leave their keys in the ignition, they go around to the back to get the kid out of the car and the doors are locked and they’re in a panic, so I’m concerned that we’re going to put me in a position, or a law enforcement officer in a position, where they would have to then, if I responded to that, put these people in more trouble than they’re already putting themselves through by doing this on accident.
I had some questions on Section 3, as well. I would think that we were not liable anyway; if they called 9-1-1 and we respond. Another thing, and I don’t know if I’m getting to a question here or not, I’m just kind of telling you my experience here; we don’t carry “slim jims” anymore on our fire department [vehicles] because of the fear of liability for messing up someone’s car. It wouldn’t stop us from breaking a window if it was really hot and we needed to do something. We don’t carry the tools and equipment to get into a car, because we’re concerned about the liability. I like that part. I guess there’s no question, there, just throwing some stuff out.
Senator Wiener:
Mr. Oceguera, determining what circumstances would prompt the conditions of the bill was one of the issues for the ten people at a table…it’s amazing what we considered and excluded. We wondered if you left a person in the car and you were taking another child into the house, and you left a sleeping youngster in the car while you were taking the other one in the house, are you leaving your child unattended? It’s not a dangerous situation. The situation that you described, they haven’t left the child alone because they are there.
One of the things we considered was if you have the child in a line‑of-sight. Someone playing a slot machine at a 7-11 may see the child from a distance, but may have no sense of danger for that child’s sitting in car in a parking lot. Then we wondered whether it should be on public property or private property.
This was the language crafted by the committee; we had a lot of people at the table and I don’t think, based on the situation you said about a parent who inadvertently locks the child in the car and wonders what to do, that wasn’t a scenario that came up as one that we would consider the danger to the child because the parent is there. I’m certain Mr. Graham, if he’s here, could respond to that from the [view of the] prosecution, from the legal perspective better than I can. That’s as best as I can tell you.
Chairman Anderson:
Possibly, when we get Mr. Graham up for support of this piece of legislation, he’ll be happy to respond to that.
Assemblyman Gustavson:
I kind of like this bill, but my question has to do with the educational program. Is there anything set up right now in the state? I’m just concerned how that would be set up and who would administer that.
Senator Wiener:
We did have some people at the table representing a coalition that was very eager to provide this, and they’re trying to put their statewide partners together; I can’t speak for them, but they were very interested in providing the educational component and they’re looking to see about the small counties, as well. You’ll notice that the trier of fact, the judge, will have the discretion to impose [a fine] up to $300, which is carefully crafted, and can waive all or part of it if a person attends a program, but [the bill] doesn’t say that they don’t have that discretion whether or not a program is present. They still have the discretion up to $300, even if there’s not a program in the community. The whole purpose was not to punish, but to encourage. We wanted the penalty to be high enough that there was a high level of encouragement to participate in an educational program.
Assemblyman Gustavson:
I appreciate that. I just like to leave some discretion with the judges.
Senator Wiener:
You bet. I’m a strong supporter of the trier of fact, with the information in front of him or her, to make those decisions, as well.
Assemblyman Mabey:
Senator Wiener, with this bill, as it refers to tractors and ATVs; I grew up in a small community in Idaho and, to my knowledge, many young children are killed every year from tractor accidents and farming accidents, so I think it’s even more important that a tractor would continue to be included in this law, because many injuries occur every year because of farming accidents. As a physician, I’ve seen many people, or know people, that have been injured on ATVs, so I think it would be even more irresponsible to allow children to be on an ATV.
Senator Wiener:
I believe I probably can sit through this one if you want the other witnesses, then I’ll present my testimony.
Jodi Esposito, Citizen, Las Vegas, Nevada:
I’m here today to ask you to please join me in my efforts to keep Nevada’s children safe by voting for S.B. 17. Senate Bill 17 is extremely important to me in a very personal way. I am the mother of Michael Esposito, who lost his life May 10, 2001, after an innocent game of hide and seek. Michael was a delightful child, full of laughter and love, and, like any five-year-old, he was filled with curiosity. There was never a dull moment when Michael was around, but, unfortunately, Michael chose the trunk of my car as his hiding place, and he was unable to escape. After four days on life support, his father and I had to make the horrible choice of letting him go. He was not left unattended; he was right behind us. It only took a moment. The loss of my precious son makes this bill particularly important to me. I know the passage of this bill will not bring Michael back, but I want to do whatever I can to spare other parents from the incredible grief I live with every day.
Since that time, I have donated a lot of my time and energy to work to educate the public about the dangers of leaving children unattended in or around vehicles. Leaving a child unattended in a vehicle is dangerous, and can be deadly. Unfortunately, people do not seem to understand just how quickly and unexpectedly a car can become a death trap for a young child. If a child is left unattended in a car, power windows and sunroof can strangle them, or even the seat belt. If the keys are left in the car, or the car is left running, the child can put the car in gear, endangering him and the lives of others. A child can be kidnapped during a car theft, or just taken from the vehicle by a stranger. I was very surprised to find out there was not a law in Nevada that protects children from this dangerous behavior. We do have a law that makes it illegal to leave animals alone in vehicles; our children deserve at least that same protection, don’t you agree?
I spoke with Senator Wiener about the possibility of getting a law passed in memory of my son Michael, who, coincidentally, was a student at the elementary school named after her father. Senator Wiener graciously agreed to assist me. Every day, children are left in vehicles, a danger most greatly underestimated. No one knows how large this problem is. But Kids ‘n Cars, a national nonprofit organization dedicated to reducing these predictable and preventable tragedies, has documented at least 630 deaths throughout the United States since 1990. At least 12 of those deaths were here in Nevada.
The Centers for Disease Control and Prevention, the CDC, study recently reported that over 9,100 children are being brought into emergency rooms every year after being left unattended. That works out to be 176 per week. In Clark County, there has been an average of 60 calls made per month to 9-1-1 to remove children who are locked in vehicles. Nevada’s emergency personnel’s limited resources should not be taxed this way. We need to send a strong message to parents and caregivers in our state that a car is not a toy, not a playground, and certainly not a babysitter.
Senate Bill 17 is more about education than punishment. We need a strong law in our state to help parents and caregivers understand the serious danger their children are subjected to if left unattended in a vehicle. Please understand this is a very urgent matter. You have the ability and power to stand up for our most vulnerable little citizens. I urge you to vote on S.B. 17.
Chairman Anderson:
Ms. Esposito, I’m sure you’ve heard it many times, but the Chair wants you to know, on behalf of this Committee, we sympathize with your loss and the frustration that you must feel. We, as parents, I think, will recognize it’s a loss that’s never, ever really healed; that’s the number one thing. Thank you very much for your testimony in support of this legislation.
Senator Wiener, I had a couple of questions when I heard your testimony, and I didn’t get this, and Mr. Graham may want to take this into consideration. Mr. Graham, I don’t want you to leave. Just in passing, before we move on, I want to indicate that it’s the Chair’s intention to have distributed, both to the Committee and put officially into the record, the following letters, all of which are being distributed:
Several years ago, my wife and I went to one of these craft shows that are at the convention center and we’re looking around and there was this mannequin dressed in OshKosh B’Gosh [brand clothing] with the little funny hat on, and a T-shirt, a very life-like mannequin. My wife decided that it would be humorous for me to have one of these crying children [dolls] standing in my office, in the corner. In fact, we did, for a couple of sessions, and I think it’s somewhere at home now. But, walking around the convention center with this large mannequin, I threw it over my shoulder, and a number of people assumed that it was a live child that “Grandpa” had taken out for a walk; people would stop and stare back and come by me again.
What’s going to happen, Mr. Graham and Senator Wiener, when somebody looks inside a car, and sees many of these dolls that look very life-like that are put into vehicles, that the child brings with them and insists that they sit in a child’s seat, and, believe it or not, parents make sure that the doll is sitting there and is treated just as well as the child is, because the kid insists upon it because they’re protecting their doll. I have a couple of grandnieces that are very much into this kind of thing, so I’m aware of it from that point of view. Now somebody breaks into the vehicle to save this doll. Have we protected that person who’s acting in good faith from liability for breaking into your car? Mr. Graham, it’s your kind of question.
Ben Graham, Legislative Representative, Clark County District Attorney’s Office and representing the Nevada District Attorneys Association:
Mr. Chairman, [I heard the] what-if questions. I can see the initial concern; I, too, have seen those little dolls. A lot of them don’t even have faces on them. I think that maybe a little stationary item like that in a car, I think the ordinary person would realize it’s not a live being; it’s just there. I would hesitate to see you try to write restrictions in here to cover that sort of thing because it may be a violation, or it may be a situation where somebody might break into, but it would be certainly very rare. I think if they acted in good faith and reasonably, there wouldn’t be a violation.
Chairman Anderson:
The reasonable belief protection, I guess, is what we’re going to be offering that person, because they reasonably believe that it was a child, and therefore we would be giving them protection. I can see that there might be some level of frustration with that. Secondly, Mr. Graham, or Senator Wiener, I also was under the impression that police officers had the protection when they were acting in good faith. I can’t imagine a police officer walking by, and since a police officer is always on duty, whether he is officially on the clock, or not, why would he not render aid?
Ben Graham:
On page 2, Section 3, the release applies not only to a law enforcement person but another person, so I think it’s just a general catchall so it’s clear that the law enforcement officer is covered as well. Real briefly, we’re looking at over 73,000 misdemeanor filings in our jurisdiction; I don’t think that we’re going to have to worry about abuse of this law. I think that as most of the people have testified, it’s going to be more educational, and, as a deterrent. I don’t see a person lurking around a corner to leap out [and file charges].
Chairman Anderson:
I guess I’m kind of curious about what kind of effect it’s going to have, other than the public relations question, of making [people] more aware of the fact that your child [is in danger], and in giving you a certain level of protection if you reasonably believe that this is going to take place.
Assemblywoman Angle:
Senator Wiener, I have a question on Section 1, the ages 7 years old and 14 years old. How did you arrive at those specific ages, or was it an arbitrary thing? I know I had babysitters for my children that were younger than 14, and I was just wondering how you arrived at those ages.
Senator Wiener:
As I briefly discussed in my testimony, and let me explain in more detail, we searched every state that we could find that had addressed this concern. Everything possible was there. So, as we sat down to determine the “under 7,” there’s a legal presumption that that child cannot determine right from wrong, and “14 and over,” that is, in Nevada, statutorily, a legal presumption that they can determine right from wrong; that’s how we picked those ages. It’s in statute that those are legal ages, where there’s some determination in statute, the criminal responsibility statutes.
Chairman Anderson:
Questions for Senator Wiener? We haven’t taken Mr. Graham’s testimony relative to this; I think he’s here as backup.
Vice Chairman Oceguera:
I guess I would be comfortable with this whole thing if there was a good definition of “shall not leave,” that’s my only concern. If we could, somehow, more accurately define “shall not leave,” I think I would be more comfortable.
Senator Wiener:
To address that concern, I can speak for Mr. Graham, that he would certainly be willing to assist in the language, yes?
Chairman Anderson:
Questions from other members of the Committee?
Ben Graham:
As a prosecutor, we’re comfortable with the language that’s worked out, but we could certainly try to make it a little bit more restrictive or definite, so everybody will know what we’re talking about; I do see it more as a preventative measure to let people know, and in the situation with Mr. Carpenter, and your situation, I’m sure we’ve all seen that. Just last night, I watched for 15 seconds as a young lady ran in and out of the AM/PM store to pay $5 to put 2 gallons of gas in her car and left a couple of little children there. They were fighting like cats and dogs, and I could understand why she would not want to have taken them into the store, but again, I think it’s a situation where reason will prevail, because everyone’s very, very busy with more significant bad things; I don’t think they’re going to be abusing this legislation.
Chairman Anderson:
It does raise an interesting question, whether the mother was looking for a moment of respite away from the child; of course, I have strong feelings about it anyway.
Assemblyman Gustavson:
The point keeps being made strongly that this is to educate people, and I don’t see how making a law, I’m not trying to speak against the bill, but by passing a law, most people don’t know about the laws. And many people come to the Las Vegas area that are tourists that would not be aware of our laws, to the state entirely, but mostly down south where this problem is more severe. I feel a better way to educate people is through public service announcements. People don’t know the law, unfortunately. How would we educate with this law?
Ben Graham:
I can think of times past when people did not appreciate the significance of a seat belt until it became the law. Sometimes, with others, it takes that little nudge to make practicality important, so I think it’s a good nudge. Why do you do it? Because it’s against the law! Plus, it’ll save your life.
Assemblywoman Angle:
Mr. Graham, I’m concerned about the charges in the investigation. There was a situation I know of where a young woman came out of a grocery store. She had a toddler with her, and I must say, he was about 4, a very crabby little kid. She swatted his backside so he’d get into the car. Before she got home, there was someone there to investigate her swatting her child, and I’m wondering, when you saw this incident of this mother that ran into the store, got her gas paid for, came out, if someone had seen her leave those children in the car, would you still have to investigate that, if they called you? Just how does that work? When we’re not intending, but all of a sudden we’ve got people coming to say, “What are you doing to your kids?”
Ben Graham:
You’re looking at situations that would disturb you, that would disturb the ordinary citizen. You would take action, and the fact if somebody ran in and out of the gas station and no harm was done, everybody’s fine. I don’t see a vigilante-type mentality here. The one swat, we all have in our mind the lady at the mall that was whoopin’ on her kid, but, if it’s that, it’s way beyond this bill, it’s into another area, so it wouldn’t really involve this legislation.
Assemblywoman Angle:
I was wondering if you would have to follow up on a charge like that.
Ben Graham:
I’m sure they would at least look at that and determine if there’s any problem, yes. It would not be burdensome.
Chairman Anderson:
I’m sure the lovely lady in the back of the room would remind all of us that we have an obligation to report any kind of abusive act toward a child. Some of us have a higher obligation of reporting than others, because of professional obligations that come with a certain licensing requirement. I, for example, whether I’m at school or not at school, still have the same licensing requirement for reporting child abuse as observed. Mr. Graham falls in the same category; actually, all of us should, but some of us have a higher reporting obligation than others. Senator, I’m going to ask you to step away, for just a moment, so I can get a couple of other people up.
Senator Wiener:
Thank you, Mr. Chairman, members of the Committee; I appreciate your consideration on this bill, and your great questions.
May Shelton, representing Washoe County Social Services:
We do support this bill.
Chairman Anderson:
You don’t see any problems with enforcement, from your past experience, in raising my level of awareness on this particular issue?
May Shelton:
We don’t believe so. When they rise to the level that they need to be reported, law enforcement does report those to us. Insofar as education goes, we believe that folks who provide the parenting classes could work into their curriculum something specific to educate folks about this.
Lucille Lusk, Cochairman, Nevada Concerned Citizens:
We did participate in the extensive meetings that took place in the preparation of this bill, and although it’s short, Senator Wiener correctly stated that it took a long time to get it to reach this point. We did have considerable discussion of the various scenarios that Assemblyman Oceguera has raised, and any additional work to fully clarify that would be appreciated, and we would be happy to work with it. However, it was felt that including when “the conditions present a danger” was an important aspect in terms of assuring that it would be used for the right situations; it may be able to be improved. We also had considerable discussion about that age that Assemblywoman Angle has asked about. The question was raised as to whether the age that should be considered would be the legal age for babysitting. No one was able to identify, specifically, that age. I had always been under the impression that it was 12, but we weren’t able to identify a specific place where that came into play. That, too, could certainly be discussed. The question of why this legislation is needed comes from a few incidents that have occurred, where individuals have clearly abused the situation, and where law enforcement felt that it was somewhat shackled with regard to doing something about it. We do support this legislation, and would be delighted to work with any members of the Committee who would like to make it even better.
Helen Foley, representing the Clark County Health District:
We’ve heard today many questions about education, and Clark County Health District supports this legislation, but also works to educate people with children about the hazards of leaving children unattended in cars. I have handed to the Committee Chairman, for all of you, different stickers that the Clark County Health District provides (Exhibit G). One of them is in English and in Spanish, and it says, “Never leave your child alone in a car.” It is attached to the back of birth certificates. These stickers are attached to the back of every birth certificate that is issued in Clark County. Someone either has to request the birth certificate by mail, or come in physically to the Health District to get the birth certificate, so there’s a reminder that way. Also, you’ll see some stickers that say, “Never leave me alone in a car,” and this is also printed in Spanish; I don’t have a copy of that. These are given out when you take your child into the health district for immunizations, or any other purpose, with young children. We’re attempting to get the message out as clearly as possible, but we do understand that the police department has had difficulty and we do support S.B. 17.
Chairman Anderson:
I do think the Clark County Health Department is doing an admirable job in trying to raise the awareness, and if the Committee so chooses, I’ll recommend that we write a letter on that behalf. Questions for Ms. Foley?
Lisa Foster, American Automobile Association Nevada:
Kids ‘n Cars has contacted us and wanted to make sure that we were in support of this and, of course, we are. I want to go on record saying that if they need assistance in Nevada with public service announcements, I would be happy to help them do that, write them up and distribute them, and do whatever we can should a new law be enacted.
Chairman Anderson:
Ms. Foster, I’d already entered the letter from Kids ‘n Cars into the record; I don’t know whether you were here when I made that announcement.
Lisa Foster:
Yes, I did hear. This is on behalf of AAA.
Chairman Anderson:
Questions for AAA?
I have finished the list of those people who had signed in with an intention to speak on S.B. 17. Is there anybody who wished to speak on S.B. 17 who feel they have information to give to the Committee that has not availed themselves of the opportunity? This is an opportunity to speak on the bill to bring forward a piece of information that you think would be important to it. Anybody who wants to speak against the legislation?
Let me close the hearing on S.B. 17 and turn to Senator Wiener’s second bill, S.B. 57.
Senate Bill 57 (1st Reprint): Revises certain provisions governing program of restitution through work. (BDR 5-588)
Senator Wiener:
I appear before you today not just as a representative from Clark County District No. 3, but also as a Senator who cares a lot about the juvenile justice issues in the state of Nevada. That’s why I appear before you with Senate Bill 57. It’s sort of a continuing saga, this piece of legislation, and hopefully, this will be the last fine-tuning on this bill that I brought several sessions ago.
This particular bill revises provisions governing juvenile restitution work programs. As I say, it has been an evolutionary process toward developing opportunities for juveniles to participate in a restorative justice program. The first piece of legislation that involved the works programs for kids was in 1999, and that bill did enable counties to create work programs for juveniles in the mode of restorative justice; I learned about this at a conference on juvenile justice and brought it back home. These programs help juvenile delinquents learn about work ethics and employability skills, as well as accountability for their actions. They are employed to earn restitution money to compensate the victims of their delinquent behaviors. Last session, I amended that bill to allow juveniles to keep 50 percent of the money that they earn at this work program and pay 50 percent of it to their victims, in every effort to make the victim whole. I looked at it as a dual learning experience, an accountability opportunity for those juveniles, as well as learning to be proud about earning money for a job well done.
I’d like to add that since I first introduced this bill in 1999, it’s taken a little bit of time for Clark County, in particular, to implement the legislation. Last session, I told the members of this Committee that I would come back in 2003 with some good news about the success of the program in Clark County. Finally, with the commitment of Kirby Burgess and his office, the REAL Program, which stands for Restitution Earned, Accountability Learned, is a reality. He and his REAL coordinator have worked very hard to make sure that we could get it off the ground and, indeed, we have been working with juveniles in the program.
Senate Bill 57 offers two modest changes that will improve the program to help further implement what we’re intending to do and help the juveniles who participate in it. The first change, in Section 1, subsection 3(b)(2), would allow certain youths who currently cannot participate in a program to participate if the probation officers believe that it will benefit the youth. The second change, in Section 2, subsection 3(b)(2), changes the formula of compensation. I modeled this bill after a program in Florida that was built as a pilot program in the Attorney General’s Office and utilized in a county where the restitution may have been ordered; they only had about a 2 percent recovery. So they said, “We have the worst county in Florida, let’s see what we can do with the kids.” After four years, at the point I learned about it, they had success with the program and they measured that in two ways: full restitution as ordered by the court, and I think their cap was $3,000 paid back to the victim, earned by the juvenile, and no interaction with the juvenile justice system for at least one year, which, for many of the juveniles, would mean that they probably will stay clean. With those two factors in mind, they had an 82 percent success rate, which tells me we may have an opportunity to keep these young people out of the adult system.
When I had gotten the original bill passed, I talked with Florida again about the formula we had for the 50/50 split, which is in current law, 50 percent of the earned money for the juvenile, 50 percent to the victim for restitution. They shared with me how they do it there, and I said, “Oh, if I’d known that, I would’ve done it this round.” So I’ve come back with their formula and it goes like this: if the juvenile finds his or her own employment, the 50/50 split will continue; if the program itself finds the employment for the juvenile, the juvenile would receive 40 percent, which is still earned money, and not a punitive effort on the child’s side, but the 60 percent would go to the victim. This does not go into the administration of the program; it would go to the victim.
I look at this as an incentive program, because the juvenile could earn 25 percent more by finding his or her own employment, and the pride of finding the employment, and because work ethics and employability skills are built in as mandates of the program, they learn how to do an interview and a resumé, and how to dress for an interview. The Las Vegas Chamber of Commerce puts on a program like this in southern Nevada called SMART Grad (Student and Merchant Achievement Recognition Team); many of these children may not participate in that, but in this program, they would benefit from the knowledge.
So since 1998, when I first learned about this, I have been growing this piece of legislation that you have before you now, and have had before you in past sessions, and I know it’s a good program. It is working in southern Nevada and took a lot of effort to get it going; Mr. Burgess would not tell you, on record, but I am known to him as being a pit bull, because every time I would see him, I’d say, “OK, where’s REAL? What’s going on?” We finally got it up and running, and it’s working. Because this is an innovative way to help our juveniles learn responsibility, help the victims to be made whole, help grow healthier young people who become healthier adults, in terms of their attitudes towards their communities, I urge your support of Senate Bill 57 in hopes that we can continue to promote the efforts to turn our kids around when they make bad choices.
Chairman Anderson:
So in essence, this really does, maybe, three things. One is that it allows a child who had previously been excluded from the program, because he or she has been a felon, to give them a second chance to do this.
Senator Wiener:
It addresses the behavior of whether or not they’ve had a violent offense, and it would be scrutinized very carefully. I brought this part of it on request from Mr. Burgess and his office. They said there are juveniles who would strongly benefit; because the word “violent” behavior is so expansive, it could mean pushing a child in a line, and those kids may benefit. But they have been excluded and maybe a probation officer feels they’d benefit.
Chairman Anderson:
Let me start again and make sure that I understand. We’re going to extend this so that if you have been previously excluded, you will now be able to get into the program. If you find the job yourself, you are going to continue to be able to get the 50/50 split. If you are placed by Mr. Burgess and his agency, the split goes 60/40, so that the victim of the crime receives the larger share since we had to force this job on you. It makes sense to me.
Assemblywoman Angle:
This is just for clarification for me, too. So we’re allowing children under 14 years of age to work, is that correct? And even if they’ve been involved in the use of …
Senator Wiener:
It’s 14 and over.
Assemblywoman Angle:
But it says “unless the probation officer” says it would be good for them, so now they can be under that age, is that correct?
Senator Wiener:
The discretion of the probation officers would be whether or not if they’ve committed a violent crime, or violence was involved in their crime. That’s what we’re addressing with the amendment in this bill. Prior to this, they have been excluded if it’s been a violent crime. This would allow the discretion of those who are placing the child, based on the case and the child himself or herself, whether or not the child would benefit; that’s what this amendment is addressing.
Assemblywoman Angle:
So in Section 3, subsection (b)(1), that 14 years or older is not affected by this unless …
Chairman Anderson:
Let me make sure the bill drafter agrees. The parenthetical addition of the clause is to subsection 2(b) to modify only those sections that excluded them previously from the violent act, not to the age question.
Risa Lang:
That’s right, Mr. Anderson; those are independent clauses.
Chairman Anderson:
Because if it had been to both of the areas, then the bill drafter would have placed it in another area of the law.
Leonard Pugh, Director, Washoe County Department of Juvenile Services; and President, Nevada Association of Juvenile Justice Administrators:
This bill is crafted primarily to assist Clark County in the implementation of the REAL Program. I‘m here today to support that legislation and explain to you how we do it in Washoe County, which is a little different, but because this is enabling legislation, I think it allows us to do that. If you don’t mind, maybe Mr. Burgess could go first and answer questions.
Kirby Burgess, Director, Clark County Department of Juvenile Justice Services:
I’m here today in support of this legislation. First and foremost, I want to thank Senator Wiener for working with us, not only just us here in Clark County, but around the state, and understanding juvenile justice issues; without fail, she always comes to us and asks our opinion and solicits our input on matters relating to juvenile justice before proceeding. I think this legislation is a prime example in S.B. 57.
Basically, the Senator has really stated it all; I just want to echo that we are committed here in Clark County in making this program work. We dedicated a full-time employee who heads up this program. All county employees who will handle the program will be involved, including our victim witness advocate, so that there won’t be administrative fees; all the fees collected will go directly to the victims. We are just part of that. I submitted some testimony to you (Exhibit H) that I had given previously before the Senate Judiciary Committee that highlights some of the success of this program so far. We believe that when kids “own” something, or have responsibility, whether it’s involvement in church activities, or school, or a job, they’re least likely to re‑offend. I think this program highlights a lot of that. I encourage you to pass this bill.
Chairman Anderson:
Questions for Mr. Burgess? Director Burgess, I want to compliment you on helping the Senator put together what I think is a stronger piece of legislation, particularly in this area, both for the betterment of juveniles in changing their behavior, and the victims of these kind of acts so that they know that they’re, while not being made whole, at least financially, being aided in trying to solve the physical problem of the crime.
Leonard Pugh:
As I mentioned earlier, I’m here today to support the passage of S.B. 57; it certainly does emphasize the principles established through a balanced approach, and restorative approach, to juvenile justice. I also mentioned that prior to this bill being first introduced, I think it was two sessions ago, I did have a little bit of concern about the fact that it might tie the hands of some of us that were doing similar work.
In Washoe County, we’ve had a job-training program that’s been in existence for a number of years, and not only kids who are required to pay restitution, but other kids who can definitely benefit from job training skills have been ordered into that program by the court. There’s a specific curriculum that does teach them how to conduct job interviews, how to go out and fill out job applications and how to present them properly. The program enforces and encourages the use of good social skills and active listening skills, and assists in finding employment after that point. While they are in that program, they’re required, on Saturdays, to go out and work, primarily at a county facility; currently our most common employer has been the Senior Service Center. For that work, they’re paid a small stipend, and then that money is used to pay off their restitution.
Last year, in Washoe County, we had 135 youth that were ordered to complete restitution to their victims. During that same period of time, because there’s an overlap, we had 140 kids who successfully completed 100 percent of their restitution payments. I’m happy to say that we collected close to $48,000 in restitution last year through that sort of a program, so we do fulfill the spirit of the law, and we do operate a program that’s very similar to this. I just wanted the Committee to be aware of that.
Chairman Anderson:
We’re happy when one of our legislative ideas works out. I know that the Senator is particularly pleased because she was working on it for some time to get it in place.
Questions for Mr. Pugh?
Anybody else wishing to testify on S.B. 57? Anybody wishing to testify against S.B. 57? I close the hearing on S.B. 57. The Chair will entertain [a motion on S.B. 57].
ASSEMBLYMAN CONKLIN MOVED TO DO PASS S.B. 57.
ASSEMBLYMAN SHERER SECONDED THE MOTION.
THE MOTION CARRIED. (Mr. Brown, Ms. Buckley, Mr. Carpenter, and Ms. Ohrenschall were not present for the vote.)
Senator, I’m going to hold onto S.B. 17…
Senator Wiener:
Mr. Chairman, I will be more than happy to work on it. I’ll start scheduling appointments today. And thank you, Committee, for your vote; I appreciate that.
Chairman Anderson:
On S.B. 17, we’re looking at language like “intentionally” and “knowingly.” Secondly, let me indicate that if it is the desire of the Committee, on behalf of the Committee, I would suggest that we write a letter to the Clark County Health Department, complimenting them on their “Never Leave Me Alone in the Car” program trying to raise the awareness of the public relative to this particular problem. If you wish the Chair to write such a letter, I will be more than pleased to do so, but only on your recommendation. Seeing no objection from a member of the Committee, I’ll take that as a direction. We will send a carbon copy of the letter to the other health departments.
We’ll take a five-minute recess, and then we’ll come back on the next bill. [Meeting was recessed.]
Let me bring the Assembly Committee on Judiciary back to order. Assemblywoman Chris Giunchigliani has a witness that she would like to see appear in the Committee, and there will be a certain amount of travel costs in order to bring him here. In order to expend dollars, there has to be a formal invitation issued by the Committee for the appearance of the witness. This is a Dr. David Fassler; he’s on the Commission for the Prevention of Youth Violence, and he’s chairman of the Council on Children, Adolescents, and the Families of the American Psychiatric Association. He’s published on child development and lives in Vermont; he would be coming to talk to us about the legislation relative to 18-year-olds and the death penalty question. The Chairman does not expend money from the Committee’s resources, which are relatively limited, without knowledge of the Committee; we just take a majority vote to issue an invitation to Dr. Fassler for him to come. I would so recommend it.
ASSEMBLYMAN CONKLIN MOVED TO EXTEND AN INVITATION TO DR. DAVID FASSLER TO COMMENT ON THE PIECE OF LEGISLATION DEALING WITH THE DEATH PENALTY AND YOUTH.
ASSEMBLYMAN MORTENSON SECONDED THE MOTION.
THE MOTION CARRIED. (Mr. Brown, Ms. Buckley, and Ms. Ohrenschall were not present for the vote.)
I will then compose such a letter on your behalf.
Let us then turn to the last piece of legislation for the day, Assemblyman David Parks’ legislation on A.B. 189.
Assembly Bill 189: Makes various changes to provisions concerning false imprisonment. (BDR 15-960)
Assemblyman David Parks, District No. 41, Clark County:
I’m here to speak on Assembly Bill 189. Fortunately, for most of us, we’ve never been the victims of a crime where we are face to face with the criminal committing the act. However, imagine for a moment being the victim of a robbery at your place of business, or just simply being in the wrong place at the wrong time. For whatever reason, the suspect decides to use you as the human shield, creating a protective barrier between himself and the police to try to demand his freedom; it’s difficult to imagine a more terrifying situation. Assembly Bill 189 addresses that criminal act, which occurs more frequently than probably most of us care to think actually happens. With me this morning is Lt. Stan Olsen of the Las Vegas Metropolitan Police Department, and with your permission, Mr. Chairman, I’d like to turn it over to him at this time.
Lt. Stan Olsen, Las Vegas Metropolitan Police Department, and representing the Nevada Sheriffs’ and Chiefs’ Association:
I’d like to thank Assemblyman Parks for bringing forward this piece of legislation to plug a loophole that has existed for a while. The problem with hostage-taking exists on a fairly regular basis throughout the state; in the large metropolitan area in southern Nevada, it is not an uncommon event for us to have to face that issue, the SWAT teams, field unit, or whoever is right on top of a crime when the call comes out. We’ve had people that have been taken hostage from infant age up to elderly, male and female; when the situation strikes and the criminal is basically between a rock and a hard place, he’ll grab whatever means are necessary to get him out of his situation. Frequently, it happens to be a human being. We’re grateful for this legislation and support it. I’m available for any questions.
Chairman Anderson:
How come this hasn’t come up in conversation before, if it’s such a commonality of events? Perhaps Ms. Erickson could help us out.
Lt. Stan Olsen:
Frequently, what has happened is that there are other crimes that have occurred, and the person is then charged with those other crimes. But many times, there is no other crime, and the person has been taken for a psychological evaluation under the “Legal 2000,” or charged, like I said, with another crime. The problem we have is that the situation has become, I don’t want to say so frequent that it’s occurring every day, but it’s occurring on a semi-regular basis, and it puts the officer and, of course, the victim, in a very bad position. Many times, we just don’t have any other charges to charge them with.
Chairman Anderson:
Would you not be endangering that other person’s life, and wouldn’t that be an added on charge already?
Kristin Erickson, Chief Deputy District Attorney, Washoe County District Attorney’s Office; and representing the Nevada District Attorney’s Association:
Your question would be to add another charge to false imprisonment?
Chairman Anderson:
If somebody had broken the law in this area, would you not be able to take me and use me as a human shield? Obviously, they’d have a very large shield to deal with. They’ve now placed me in harm’s way, endangered my life, because police officers are standing out there and potentially shooting; have they not endangered my life, and would you not be able to charge them for endangering my life?
Kristin Erickson:
Specifically, there is no crime for endangering your life; there is a kidnapping charge that sometimes can be utilized, but in many instances, it cannot be. The most common situation I’ve seen this bill would fit would be using your own child as a shield. You’re the parent, it’s your child, so you have the right to have your child, but, for whatever reason, you’re using that child as a shield, for instance, when the police respond to a domestic violence call. I think that’s the most common situation that occurs lately. But as far as prosecuting someone for just using you as a shield, there’s a possibility of kidnapping if it was for a specific purpose.
Chairman Anderson:
If they’re threatening and are holding a knife or a weapon on me?
Kristin Erickson:
That would be assault with a deadly weapon, yes, it potentially could be.
Chairman Anderson:
I find it amazing that we wouldn’t be able to find a place to charge somebody under that.
Assemblyman Horne:
Under these scenarios, I would suppose that there’d be a plethora of charges that would accompany this; it’s not likely that they’d be filed just under false imprisonment. Does it provide for this punishment to be served concurrently or consecutively, or would that be the discretion of the judge?
Kristin Erickson:
It would be at the discretion of the judge if there were two available charges in the situation of the parent and the child. In fact, we had a round table discussion about this; there really was nothing we could charge him with, other than the underlying misdemeanor domestic battery charge. But any sentences could be served concurrently or consecutively at the discretion of the judge.
Assemblyman Conklin:
In Section 1, subsection 4, lines 8 through 14, where we describe this and give penalty, for clarification purposes, some things may fall under other jurisdictions. I’m almost wondering if it would be better to specify that this would be a consecutive sentence and shrink the time, as sort of adding on a term, because you’ve already committed a crime before you’ve done this. That’s why you’re using somebody; I’m going to assume you don’t just have a human shield if nobody’s looking for you, correct? I’m just curious, if we might turn this around a little bit, to afford an increased penalty for that person, a tack-on penalty, as a result of this circumstance, almost like an aggravating circumstance.
Chairman Anderson:
Let me let Ms. Lang help us with our discussion before we pull ourselves too far away from the intent of the bill.
Risa Lang:
Just as clarification, what this bill does is create a higher penalty when you falsely imprison someone by using them as a human shield. The situation could be covered, potentially, as just a regular false imprisonment if this additional heightened penalty wasn’t here. What Mr. Conklin’s referring to is a little bit different, in that we sometimes have additional penalties; that’s when you do something that has additional things, such a taking a person as a human shield. You’ll create an additional penalty that’s included with the crime that is imposed consecutively; and those are in NRS Chapter 193, and we have them for various things. When you look at this, you might just consider whether you want to create a greater penalty, which is what this does, saying if you falsely imprison someone using them as a human shield, you’re going to get a higher term of imprisonment, or, whether you want to have an additional penalty, which would be an almost separate offense and would be imposed consecutively, Mr. Conklin.
Assemblyman Conklin:
If I’m to understand you correctly then, this bill only applies to false imprisonment, whereas what I’m suggesting as an alternative would apply to any crime, correct?
Risa Lang:
This one does apply just to false imprisonment; this is the section dealing with false imprisonment. If we wanted to deal with other ones, I guess as a drafting matter, I could go back and look at how we might handle that.
Chairman Anderson:
Assemblyman Parks, let me ask you if, in looking at the bill, was it your intent to only look at that one narrow area of the law, or did you see a question in terms of moving this statute up to a [Category] B level as an enhancer, as Mr. Conklin had talked about?
Assemblyman Parks:
A simple answer would be no; if I might refer it to Lt. Olsen, I’d appreciate it.
Lt. Stan Olsen:
The intent was to cover all those crimes where somebody would take a hostage and try and work their way out of whatever situation they’re in, whether it be a robbery, a domestic violence, burglary where you got caught and you grabbed somebody, any one of them.
Chairman Anderson:
Then, apparently, we may have missed the mark. Ms. Lang?
Risa Lang:
I think that we could change this and make it an additional penalty, if that’s the desire of the Committee and the requestor of this bill draft. I think the reason we did it this way is that typically that would be the portion of it, like you said, you may charge a person with other crimes, but that the separate crime is falsely imprisoning a person by using them as a shield. I think that’s why it was limited to that. The using the person as a shield wouldn’t be part of one of the elements of the other crime. For example, kidnapping means that you’re holding the person for a substantial amount of time. The point at which you take them in front of you, I’m not sure that that would be part of the actual kidnapping, but would be a separate act. I hope I’m not confusing this further, but I think that’s why it was limited to false imprisonment because in working with Lt. Olsen, we had determined that it would be just that act of putting the person in front of you.
Chairman Anderson:
Am I then to understand, based upon Mr. Conklin’s observation that, if in the act of committing a felony, you then took a person to become a shield, they would have committed an additional crime that would be standing by itself, as an additional chargeable event, thus leading to a string of additional charges that would be put in there? Is that what you’re trying to get to, Mr. Conklin?
Assemblyman Conklin:
Yes, that is correct. My concern is that it’s not limited. If someone does this act in any way, shape, or form, they can be charged under this, and if legal counsel says that’s the current case, I’m certainly fine with that. But to add on to that a stiffer penalty because of it that they can’t serve concurrently; if they’ve already committed a [Category] B felony, and they’re serving concurrently and they serve 15 years and get out after 10 or 8, this bill does nothing for me. They’ve put an innocent bystander in harm’s way, intentionally, to secure their own freedom after a crime, and I’m opposed to that. I want to make sure that this bill achieves its goal, reaches all of those people, and it has an enhanced sentence. If this does that, and it may very well, based on Lt. Olsen’s and Risa’s comments, then I’m fine with it.
Chairman Anderson:
Lieutenant, apparently this is, in part, what you had envisioned happening? Does it do what you thought it was going to do?
Lt. Stan Olsen:
When I read it, when I worked with Risa on it, yes, it did. We looked at it as a separate crime, not necessarily an enhancement crime, but a separate crime, that we could charge the individual with, which we cannot charge them for now. Again, this, as Ms. Erickson stated, the term of consecutive or concurrent is the judge’s discretion.
Chairman Anderson:
Other questions from the Committee? Assemblyman Parks, any additional testimony that you want to give on the piece of legislation?
Assemblyman Parks:
No, thank you, Mr. Chairman.
Chairman Anderson:
I was of the opinion that we were going to be able to move on the piece of legislation, and I’m a little concerned to make sure…Ms. Lang, do you want to explain this to us?
Risa Lang:
In clarifying before, I just wanted to make sure that the Committee was aware of the difference between an additional penalty versus a heightened penalty, but we do occasionally say that the term must apply consecutively, and we could amend it in that way if the Committee wanted to take the court’s discretion away.
Chairman Anderson:
I’m always hesitant to waylay a bill that’s heading for the Floor, pretty well polished, but if we can add a grain of sand to make sure that it is where it’s supposed to go, I’m surely not objecting to that. After all, in another week or so, the bill drafters will only have a moment to come up for air.
Assemblyman Conklin:
I think I’ve said my piece. If everyone else on this Committee is comfortable with this bill, than I am as well.
Chairman Anderson:
Let me suggest that we hold it over for the work session and see if we can work out some potential language that would make sure we’re all comfortable, and make sure that we know what we’re doing, relative to whether we’re enhancing a penalty, or raising a penalty, or coming up with an additional penalty. Anybody else wishing to testify on Assembly Bill 189? Any additional information relative to A.B. 189? Let’s close the hearing on Assembly Bill 189.
We have a work session scheduled for Thursday of next week. It’s my understanding that it’s a possibility we may have two Floor sessions on Monday because that’s the deadline for bill draft introductions, so if you have something that’s sitting out there that you thought you might like to put in, it would be absolutely the day to drop it, so we’ll have a better idea of what our full load looks like. On March 27, 2003, we’ll hear the bill of Assemblywoman Giunchigliani.
The meeting is adjourned [at 10:10 a.m.].
RESPECTFULLY SUBMITTED:
Carrie Lee
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: