MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
April 2, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:00 a.m., on Wednesday, April 2, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4406, 555 East Washington Avenue, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Senator Sandra J. Tiffany, Clark County Senatorial District No. 5
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Lora Nay, Committee Secretary
OTHERS PRESENT:
Dorothy Nash Holmes, Mental Health Programs Administrator, Carson City, Department of Corrections
Benjamin J. Blinn, Lobbyist, Self
Gerald Gardner, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General
James F. Nadeau, Lobbyist, Nevada Sheriff’s and Chief’s Association/North, and Washoe County Sheriff’s Office
Joe Ward Jr., Senior Deputy Attorney General, Office of the Attorney General
Sandy Mazy, Acting Administrator, Office of Criminal Justice Assistance, Department of Public Safety
Victor H. Schulze, Capital Case Coordinator, Office of the Attorney General
Michael Pescetta, Attorney
JoNell Thomas, Attorney
Nancy E. Hart, Lobbyist, Nevada Coalition Against the Death Penalty
Chairman Amodei:
The first bill up today is Senate Bill (S.B.) 264.
SENATE BILL 264: Makes various changes to provisions pertaining to Department of Corrections. (BDR 16-1182)
Senator Sandra J. Tiffany, Clark County Senatorial District No.5:
I would like to give you a little bit of background of how I became involved with this reentry issue. Two years ago I sponsored a bill, heard in the Senate Committee on Finance and the Assembly Committee on Ways and Means, allowing for a reentry program. Prisoners are released with a handful of change, but with no wraparound services, so recidivism is quite high. I felt we could and should do something, particularly since our restitution center had closed in Clark County. We put together a bill identifying certain prisoners to be released early, under certain conditions, and released into a reentry court. The court would then assign these prisoners to a new restitution house program we were developing. If they had problems and broke their paroles, they would return to the court, and the court would decide whether or not they would be put back into prison.
The reentry court has not done anything for the reentry prisoners. They have paid a lot more attention to the drug offenders. This time I come with S.B. 264. The major genesis for this bill is we want to give the director authority to identify certain people within the prisons to be released early into the authority of the Division of Parole and Probation.
One of the largest budgets on the Senate Committee on Finance is always from the Department of Corrections. Any way we can get prisoners who are not going to be a threat to society released early, saves the General Fund some money. We are planning a new restitution center with wraparound services for Clark County. We would like to get prisoners released either to the courts or to parole and probation and get them into this new restitution center, get them interfaced with whatever social services they can qualify for, back with their families, and into jobs, ultimately with a car and with a house, making their reentry back into society a little easier. I am going to have Dorothy Nash Holmes explain all the details of the bill.
Dorothy Nash Holmes, Mental Health Programs Administrator, Carson City, Department of Corrections:
Senate Bill 264 looks pretty complicated as written. It is one of those bills where every time it says the word “program,” you have to make a change. It is pages and pages long. It has three components affecting the corrections areas we are trying to address. I have prepared a short, one-page synopsis trying to point out sections to you (Exhibit C). I am also proposing some language amendments to the original bill. When we got together with parole and probation and the State Board of Parole Commissioners, there are some things that just did not come out right and needed to be corrected.
I would like to deal with the easiest part first. Section 5 of S.B. 264 would amend Nevada Revised Statutes (NRS) 209.3925, which is the compassionate release statute. The law permits the prison director to release to the parole board and parole and probation an inmate who is so physically incapacitated he is going to die within 12 months. The inmate goes into parole and probation’s custody and into residential confinement. The statute is very narrow, as is our policy. We only have about four of these a year who are literally non‑ambulatory, bedridden, and going to die within 12 months.
We have looked at this statute and we think it is time to broaden it. We have some terminally ill patients who are dying of cancer, or who have acquired immunodeficiency syndrome (AIDS), and we have a number of kidney dialysis patients. These people are so seriously ill they are not a danger to reoffend and do not require hands-on custody anymore, though they may still be ambulatory. They may still be healthy enough to get up and walk across the room and go to the bathroom before they go back to bed. They may not be ready to die in 12 months. It might be 16 months or longer; we cannot put on a time frame. We have a number of those inmates and they present some serious health issues for us. We have nothing we can do, but keep them in our regional medical facility and try to keep them comfortable until they die. We would like to broaden the compassionate release statute to include language about seriously ill inmates who are still ambulatory, but are very, very ill, and are going to die, so we are not bound by the 12-month restriction.
The second proposal includes pregnant inmates. We had 16 babies in prison last year and 14 the year before. These are very expensive, very high-risk incarcerations. The women’s facility in Las Vegas treats every pregnant female as a high-risk pregnancy and they are sometimes seen two and three times a month by doctors because often the mothers have used drugs. It is very expensive. A lot of these women are in on bad checks or alcohol-related charges, or something else. The director feels these kinds of inmates can be managed in the community on the terms set by parole and probation without being in a prison bed.
The statute already has language prohibiting the release of dangerous inmates, so if we have a female serial killer who comes into prison pregnant, she is not going out under this program. She is going to do what we do now, which is, we keep her in prison until she goes into labor. As soon as she goes into labor, she goes into the hospital for 1 day. She has her baby and she is back in prison the next day and the baby is gone to mom, dad, foster parents, or wherever it is going.
The amendment we are proposing to you today adds one little phrase. As the statute is now written, all compassionate release individuals get sent to residential confinement and supervised by parole and probation. Amy Wright, the chief of parole and probation, has told us the residential confinement, which is the electronic bracelets operation, costs $14 a day. If the inmate cannot afford it, there is no residential confinement. Parole and probation cannot put someone at home to be checked on every few days. They must have the electronic bracelets.
We want to expand the statute in section 5 by adding the phrase “or other supervision as determined by the division,” allowing parole and probation to either use residential confinement or other supervision. We are trying to get these inmates released, not only to their homes, but perhaps to hospices or to extended care facilities where they can get some Medicaid to help pay for their medical bills.
Sections 16 through 21 and 26 through 33 of this complicated bill concern work release. In 1977, during the 59th Session, NRS 213.300 and other statutes were enacted to allow for inmates to participate in a work program during their last 6 months of confinement. Inmates could go into the community to work during the daytime, but they had to sleep in the county jail at night. The statute has provisions for quartering inmates in local facilities by contract. This statute has not been used in 30 years because our jails are way too overcrowded. We have been in violation of the law.
With the proposed legislation and amendments, we are trying to update to make this a useable statute. The permissive changes we would like to make allow the director to establish a program of work release. We would like to take out all the parts about quartering inmates in local facilities. We added language providing the director and the division with the flexibility to decide the terms under which the individual offender could go out on work release. We do not expect there will be a lot of these inmates and we are trying not to lose what little programming authority currently exists in the statutes. We are trying to expand it enough to bring it up to date so it would allow such terms as the parole board and the division deem appropriate.
Senator Nolan:
We all understand our recidivism rate is directly related to how successfully individuals have been rehabilitated. These work release programs are essentially trying to integrate somebody back into society. We should not cut back on this program in any way. This is the first time I have heard we have not been able to keep our work release programs because housing was not available at the local jails. Rather than making this mandatory, which at some point in time may completely eliminate work programs, are there other alternatives? Perhaps providing daily transportation into the community and then back to the prison at night for those inmates on work release programs might work.
Ms. Holmes:
One system is already in place through our minimum-security level, Nevada Division of Forestry (NDF) camp programs. We submitted a grant application last week to create a construction training program in Carson City. Our system is set up for minimum custody inmates having less than 36 months until release, with clean records, to work in the community with supervision. The only way this program is cost-effective is if we have at least a dozen inmates. Then we can afford to send one correctional officer with them. Inmates have to be supervised when they go out, so it is very expensive. Community trustees, of whom we have very few, and are the ones working at our restitution center or if they are within 18 months of release, the ones who can go out by themselves and come back at night. This is the program we are trying to expand through this new construction training. If we could revive and fix this old dead statute for inmates in their last 6 months of their actual sentences, it will be used appropriately. I do not want to say we are trying to do this on the cheap, but we do not have the money. We are facing budget cuts everywhere and we are even facing having our staff cut at Warm Springs, which we are trying to turn into a minimum-security facility. We are going to have 500 inmates there who could possibly go out and work.
It is not feasible for us to drive inmates to and from work. If we had an employer in the proposed construction program who wanted to come pick up a bus of 12 inmates and pay the cost of an officer to watch them for the day, we would do that in a heartbeat. Right now we just to do it on a very hit‑and‑miss basis, usually through the NDF.
Senator Care:
You made reference this would apply to a small number of inmates. As a cosponsor of the bill, I have no doubt the work release provisions stand on their own merits. We had testimony during the first week or two of this Session about the possibility of increasing the number of prisoners being released if we did not see tax increases. How were we going to do this? Is the number eligible for work release so small it would not even have an impact on the 1500 or 2500 of those potential early releases?
Ms. Holmes:
The director did talk about what as a last resort we would have to do with more budget cuts. Of course we do not have the authority to let anybody loose, the parole board does. We have, at all times, between 250 and 350 inmates sitting in our prisons who are already on parole, but cannot get out because they cannot find housing in the community. Inmates qualifying through the work release provision are inmates who would be in the very last 6 months of their sentences.
The parole board is not going to let out everyone because sometimes the reason inmates are still incarcerated when they have 6 months left is they have been denied parole numerous times. There comes a time with inmates when they have been in long enough, they have learned it, and they are ready to get out and start living the way they should. I cannot really predict the numbers on this because the statute has not been used in so many years and it was tied strictly to quartering inmates in jails. The only way we have provided work crews is through the NDF. We have 16,050 inmates going out to work everyday through NDF. The only reason we do not have more is because the number of crew supervisors through NDF has been cut down. We are hoping, somehow or another, they will find a way to increase those crews when Warm Springs goes minimum because there will be 500 more inmates who could be out working.
We have not performed a computer run on how many inmates are in the last 6 months of their sentences and would be eligible for work release. If we do not enact this bill as we have tried, our alternative is to revive and fix it, or to strike it entirely. As the law now stands on the books, we cannot do it. Our restitution center holds 90 or less.
Senator Wiener:
You did say not all of the inmates within the 6 months of expiration would even qualify for the program and you do not have a sense of how many you could turn out. In the correction’s study committee, we did address the issue of those who chose to expire, rather than parole out, because they would then have no supervision. You said there were how many on parole, about 350, who are technically on parole but are still housed?
Ms. Holmes:
The inmates go before the parole board 4 months before their sentences are up, to give them an idea of whether they are going to make it or not. They can be working on their housing plans. At all times, we have between 250 and 350 inmates who were given the green light for parole, but are still with us because they cannot find housing. We want the discretion for the director and the parole board to decide who can go out on work release. We hate to give up any statutory programming authority, even if it is old and nonworkable.
Our worst offenders, those who stay in prison and choose not to go on parole, are a problem we talked about on the study committee. Offenders do this by not cooperating by turning in a parole agreement. They do not have the statutory authority to waive parole, but, in fact, they do by not putting a plan together or by threatening to go rob somebody again. We put together a task force to try to address this issue and others concerning technical violators. We have come up with a policy we are just starting to implement to discourage what we characterize as “noncooperative behavior” with the inmates. We are defining their ability to stay in a minimum custody level based on their cooperation. If they refuse to put together a plan, they are considered non-cooperative and may drop back to the next level or be put back to the next higher level of custody. We are going to make their lives a little more uncomfortable if they will not try to put together a plan to get out. On the other hand, we have to provide some reentry services and connect inmates to the community, so they can put together a plan. It is a double-edged sword and we are trying to resolve this problem. This will not include the inmates who are the worst of the worst. Those who are still in because they have been denied parole five or six times are not going out on work release.
Senator Wiener:
Part of the plan is not just housing; what else besides employment would be included?
Ms. Holmes:
It is housing, employment, and getting their lifestyles in order. We have developed two workforce investment grant programs in Las Vegas to start trying to bring employers in and do employment assessments to start helping inmates find employment. The big reentry grant will help us. Housing is the primary issue because parole and probation cannot let parolees live under a bridge somewhere. Parole and probation has to know where to find parolees. There are not enough halfway houses and not enough treatment houses anymore. A lot of those have been closed down because of the restrictions adopted last legislative session about fire sprinklers and that sort of thing. There are fewer short-term housing opportunities now than there used to be.
Senator Wiener:
There are those who might have gone through the Willing Inmates in Nevada Gaining Sobriety (WINGS) program or one of the other available therapeutic opportunities inside. Would part of their release plan require they have a sponsor or sponsoring organization for support programs on the other side if they have had assistance on the inside with a substance abuse problem?
Ms. Holmes:
There is already a statute on the books as part of the therapeutic community set of laws. It mandates the director set up aftercare in the community for inmates who have gone through the therapeutic community program. We have no money and we do not have a program set up in the community. We have tried to make connections with Vitality Center and Ridge House and some of the other treatment provider programs in the communities. We refer the inmates into programs, but we do not have the money to pay for them to be there even though statute mandates the director set up aftercare.
In the reentry grant we got from the federal government, I included money for us to work with some experts in the community, with a professor at the University of Nevada, Las Vegas (UNLV), and with some treatment providers in the north to design an aftercare treatment program. It took us 8 months to get the money released. We will identify the types of elements the program must have, as it will be a different type of treatment than just going to Alcoholics Anonymous (AA). There is a little bit of money in the grant to do the design, but there is not enough money to pay for the actual aftercare treatment. We have an unfunded mandate we cannot comply with because we do not have money in our budget.
The third section is the reentry part of this bill, and in my little handout to you, it is the first paragraph, sections 1 through 4, 6 through 15, 22 through 25, and 34 through 40. This is the one where every time the word “program” appears you have to make a correction. The intent behind Senate Bill No. 519 of the 71st Session was to set up reentry programs for inmates. We used the context of reentry court because, although it is wonderful what we have going in Washoe County and Clark County, it is only drug court and not reentry court. If you are in on another crime, you cannot get into drug court. You have to only be in on a drug crime to get into drug court.
We had gone to Senator Tiffany and some other senators to get a broader reentry program entirely. Neither of the courts had the time or the money or the inclination to broaden to general reentry court. The reentry we designed has not yet happened, so this amendment clarifies correctional reentry programs set up by the director, and reentry court set up by the judge.
We are not taking anything away from what we put in last session. The bill last session had two ways for an inmate to get into a reentry court program. Either the director or the parole board referred the inmate into the program. What we have done in the amendments is to say the director can set up a program and also refer inmates into it.
The amendments correct some uses of the word “offender” where we needed to distinguish between a prisoner and a parolee. Over the years, the Legislative Counsel Bureau has changed to using the word “offender” every time it used to say “prisoner.” There is a reason for the distinction. Prisoners are those who are currently in prison and would be referred to reentry by the director. Parolees are those who would be referred to reentry by the parole board. This distinction is important and needs to stay, and that is what we have proposed.
We are changing three parts to say the director will determine whether prisoners in the custody of the department are suitable for reentry, and the director will determine whether the parolee referred by the board is suitable for the correctional reentry, and the third one says when the director determines that, she makes those referrals to the parole board, which has the authority to decide who get out into a program.
We cannot just pull an inmate out and say she or he is going into reentry. We have to go through the parole board because the only two authorities in this State having the legal authorization to release inmates are the courts through their reentry program or the parole board through parole or release. We are clarifying the authority of the director has not risen to the status of the parole board. She is not a new parole board. This basically clarifies there can be correctional reentry programs as well as judicial ones and the director, finding inmates suitable, makes referrals to the parole board.
Senator Washington:
What are the determining factors or qualifications for an offender to be classified as a candidate for the reentry program?
Ms. Holmes:
An inmate is eligible within 24 months of release if he or she has a clean discipline record and no drugs, has programmed showing a willingness to go to work or school in the community, and has no convictions for a crime of violence in the last 5 years. Our reentry bill was intended to apply to any criminals who have met the criteria, and not just drug users.
Senator Washington:
Once they are in the community, what type of support system needs to be in place for offenders besides the court?
Ms. Holmes:
A lot more than what we have now, which is why we have applied for our reentry grant and why we are trying to work with the local communities. What is not being changed is the director can work with nonprofits in the community to set up transitional housing, job referrals, life skills including counseling, credit counseling, family counseling, and all of the elements needed to plug an inmate into the kinds of resources in the community the inmate needs to get reestablished. Right now we put people out the door with a check for 21 bucks and a clean pair of blue jeans. The services are already outlined in the statute and we are not seeking to change that part.
Senator Washington:
Last session we worked on transitional homes and licensing because of the pluralification of those homes in southern Nevada, especially within neighborhoods, and them being unlicensed or unregulated. I watched this transition take place with the migration of trying to license these homes; in fact I got caught in the middle of one. Would the Department of Corrections, under the direction of Jackie Crawford, be wiling to pull that licensing requirement out and put it under the Department of Corrections, so it is not so cumbersome to regulate and to license these homes? The reason I ask this question is it is difficult with the Department of Human Resources (DHR) and some local requirements not being congruent with these transitional homes. I understand the reasons why transitional homes need to be licensed and regulated, but to do that half and half makes a support system for your reentry program very difficult.
Ms. Holmes:
I am not sure the enacted licensing provision turned out as advertised. Only halfway houses providing treatment are required to be licensed. Halfway houses providing just a bed are not required to be licensed. Some really good halfway houses having treatment have been shut down because they do not meet the health and safety provisions that DHR requires. On the other end, we have halfway houses with too many beds that provide no treatment. They are just flophouses and are not regulated by anybody. The result was some good ones were shut down and maybe encouraged the proliferation of some bad ones. The more appropriate place for the licensing of halfway houses would be with the parole board or parole and probation because they are the ones who supervise in the community. There needs to be some kind of regulation and perhaps the problem created last time with the limited regulation needs to be addressed because the practical effect has not been what we all thought would happen.
senator Washington:
Would it be possible to take somebody out of your department or out of the Department of Corrections and out of parole and probation to take a look at these issues and redo the statute?
Ms. Holmes:
Perhaps a task force or a subcommittee of the Legislature designed to study this in the interim would be appropriate. It is something needing to be fixed.
Senator Washington:
Can you and somebody from parole and probation follow up with me and if we need to put it in a study committee we will at least introduce it?
Ms. Holmes:
I will do that.
Senator Titus:
I know there are some problems in both northern and southern Nevada. I have a bill restricting how close halfway houses can be to places where children hang out. There do not seem to be any restrictions on how many people can stay in a halfway house. Sometimes where people are bunked is rough on a neighborhood when there are a lot of ex-felons and a lot of activity. I would encourage, and would work with you.
Ms. Homes:
We very much agree. The parole board is releasing a lot of people on parole, conditional upon their going to some sort of a transitional house and there are none. We have women being referred to a house in Las Vegas where there are 19 women who are paying $150 a month. That is a ton of money being paid. There is no treatment, so it is one of the unregulated houses and they are just stacking them up just like cordwood. This does not help the inmates and it certainly does not help the community. We agree there needs to be some restrictions, but we have not yet figured out the right formula.
Senator Wiener:
When we had the Governor’s study committee, there was conversation about continuing it. We have done a lot of work. Would the committee, which as a group with a lot of interested participants and knows the issues pretty well, consider it, as the committee is in still in place and did not expire? Is this something they could tackle?
Ms. Holmes:
We would have to ask the Governor. He appointed the committee at the director’s request because the Department of Corrections, the Department of Prisons previously, had not participated. He appointed that group so we could do our part and get caught up to everybody else in the State. There was no money allocated at all; we had to beg for some grants and I know the director is very interested in advisory committees. She has asked our wardens to set them up in their communities and she is very interested with northern and southern regional advisory committees set up permanently to deal with these kinds of issues and this might give us the vehicle to start doing that. Whether the Governor wants to continue the correctional study committee or whether we want to go to a regional advisory committee concept, either way we are wiling to participate as it needs to be done.
Benjamin J. Blinn, Lobbyist, Self:
I am a citizen and an ex-felon 30 years ago. I agree with Mr. Nolan’s view. Just because the warden has not complied with statute does not excuse her from the intent of the law. It is not right to not have a budget. I was in the joint and I served on a work release program within my last hundred days. I punched in at 6:00 and worked until 2:00 and had so much time to return to jail or I was back to maximum.
It is unbelievable we do not have a program because every county is full to capacity. There are some problems because they can get kickback money so they can buy all their toys, as you saw in the newspaper.
I worked with the Honorable Judge McGee, a fine person, in establishing the STEP 2 rehabilitation program and there has been a decline in women who are being committed, showing those available tax dollars are being spent on some worthwhile programs and this is a blessing. The end program needs to reflect some of the things we have succeeded in trying to prevent incarceration by rebuilding their lives brick by brick. The women are allowed to keep their children, are tested to make sure they are drug free, and must attend anger management classes, parenting classes, AA, Narcotics Anonymous, or Gambling Anonymous for whatever their addiction might be. There are clinical psychologists, social workers, and supervisors to implement the program. This is on the front end, is working, and is being modeled across the nation.
Where you are losing is on the rear end of your programs. I do not like the sound of punishing a guy who is behaving himself, doing his time, and when he is ready to get out is told he must have a parole plan for the parole board.
Inmates getting ready for release do not want to be cooperative. Often in the past, when they went to the street, it took them longer to do their time under parole and probation. They can knock their sentence down quicker by doing nothing, just doing the “three hots and the cot trip.” Then they will not have a parole officer who is looking to bust them. By the time they have done their time in an institution, they know how to get along in the program and do not want some guy who just got out of college telling them what they can or cannot do. They can get their 10 good days a month, donate blood, and get their jar of coffee and their case of cola from the culinary, which used to help the program because the money used to go for literacy before they put it into the medical program until they bankrupted the inmate fund. I do not know how they considered that ethical. The literacy program helped people get ready for parole and probation by getting their General Educational Development certificate (GED) or minimum education. You just heard it said the inmates are going to be punished for not cooperating, but they are cooperating with your system. If you give them 10 good days a month if they stay in the joint, they can do 40 days in 30.
Senator Washington:
Can I ask you a question?
Mr. Blinn:
Yes, sir.
Senator Washington:
Are you in support of this bill?
Mr. Blinn:
I am absolutely in support of this bill, but do not take the pressure off the warden and yes, this is a good warden. Traditionally, we had to force wardens to establish work release programs.
Senator Washington:
If you are in support of the program, and just want to curtail the activities of the warden, then I would suggest the members of the committee understand what you are saying.
Mr. Blinn:
I will leave that point and return to what I was saying.
If the 10 good days a month were being offered to a successful parolee now it would make it more palatable for this inmate to do a plan for parole. You need to model the end program and make it easier to work with counselors and so on. If you had people pick up inmates in a bus to go to work or help them finish their educations, you may have something to work with without changing the budget. The weakness is not the old timer is uncooperative and therefore you assume he has to be browbeaten to take parole. If you give the inmate the same benefits on the street he gets by working in the institution, you are going to open up the flow again. You will not be putting so much money into care and supervision and the inmate can begin to be progressive on the street.
Senator Washington:
Excuse me, Senator Nolan has a question.
Senator Nolan:
Mr. Blinn, as soon as you wrap up, there was a part of your comments I wanted to ask Ms. Holmes about. I will ask her to come up and address it.
Ms. Blinn:
I am wrapped up and I do believe we have a fine warden now. I do think when you have her kind in power, they need to be given latitude to be able to put more than just a 6-month prospect into a program. The sooner you get inmates out of the slime pit of agony and doubt and pain and torture, the sooner they can become better citizens to be put back into society. They still will need to have help and direction. The warden and the parole board together can work a program including offenders other than just drug offenders. I had help 30 years ago and it was successful for me.
Senator Nolan:
Ms. Holmes, I just wanted you to address Mr. Blinn’s fundamental concern, which struck a point of interest. Like so many other prison programs, this sounds like the early release programs and the community work programs are not compulsory but voluntary. Is it possible for an individual just to say, “Nope, I am not doing it. I am going to get my three meals and a cot and give my blood, and take my 10 days of good time,” and never be involved in the program at all?
Ms. Holmes:
It is possible, but it does not happen very often on this work release program. I do not think it will happen because this program is really targeting a group of offenders who would not be in any of the other programs. These are the ones who are getting close to the end, having only 6 months left and, quite frankly, I cannot imagine any of them saying, “I do not want to get out in 6 months.” They are clamoring to get some job training and some skills so they can get out and get started again. I do not think it is a problem, but we are not permitted by the U.S. Constitution and by the Supreme Court and any of the other rules to force an inmate to program.
We encourage them with our level system and by setting up a tier system where the more an inmate participates in programs and progresses, the more privileges are earned. They get the better units to live in. We have levels 4, 3, 2, and 1 where, at the highest level, they get more canteen, more visiting hours, more telephone time, and access to the better jobs. We have set a system in place to help give them every reason in the world to want to program.
One of the bills coming before you is about a correctional education authority in the Department of Corrections, being introduced by Senator Wiener. It has a provision adding a programming merit credit to help encourage these inmates. A lot of them have been programming for years, even without credit, just to have something to do during their time. I am trying to find ways to reward, encourage, and motivate the inmates, but we cannot compel them.
Chairman Amodei:
Written testimony (Exhibit D), submitted by James J. Vilt, Esq., of the Nevada Disability Advocacy and Law Center, regarding S.B. 264 will be added to the record.
We will close the hearing on S.B. 264 and open the hearing on S.B. 299.
SENATE BILL 299: Prohibits prisoners from manufacturing or possessing certain tools or items adapted, designed or commonly used for purpose of escaping or attempting to escape from custody. (BDR 16-433)
Gerald Gardner, Chief Deputy Attorney General, Criminal Justice Division, Office of the Attorney General:
I will read my testimony (Exhibit E) into the record and am providing information (Exhibit F) for reference.
Senator McGinness:
With this amendment to the bill, will it change the fiscal note? The fiscal note shows a fairly substantial effect on the prison system. What will your amendment change?
Mr. Gardner:
The amendment will probably increase the number of prosecutions. In fact, without the amendment there will probably be zero prosecutions because the bill would make it very difficult to prosecute somebody when we have the added burden of proof of intent to escape. Nonetheless, we are talking about a relatively modest number of prosecutions per year, probably in the neighborhood of fewer than a dozen per year. This would provide a modest fiscal expense on the attorney general’s budget in terms of litigation expenses at the various prisons, but those are mostly accounted for anyway. We have a deputy attorney general stationed in Ely who handles most of the prison prosecutions there. He is full-time and so his expenses will not be added to at all. The increase in the fiscal note would be modest. Without the amendment, we would not have any ability to prosecute under the statute.
Senator Nolan:
Clearly, we want to try to create some disincentive for this type of activity. Do you feel, in your experience in prosecuting these cases, it is commonly known by the prisoner population if tools are fabricated and they are caught with them, they are not going to be prosecuted?
I think it is known the punishment for possession of this kind of contraband is minimal. At best, they are going to suffer some minor administrative or disciplinary setback. I am not so naive to think we are going to deter the violent, hardened, death-row inmate from attempting whatever this person wants to do in prison, but if we can deter somebody who is serving a lesser sentence, somebody who is merely trying to gain favor with other inmates, or trying for financial gain by manufacturing and selling these things and there is an active commerce going on in the prison system trading these things for cigarettes or for commissary items, if we can deter even a small number of these not incorrigible inmates who know it is going to add 6 years to their prison terms, the bill is worth enacting.
Senator Nolan:
If it does have a deterrent effect, or becomes widely known, or there is some type of campaign instituted by the administration to let inmates know they will actively prosecute, then maybe we might actually see a decrease in the number of cases that are brought forward, if it has a deterrent effect.
Mr. Gardner
Perhaps it would even result in a decrease in administrative proceedings in the prison system. If the behaviors were deterred, it would not only result in a decrease in prosecutions but also a decrease in internal administrative disciplinary proceedings.
Ms. Holmes:
I am not the person who prepares the fiscal notes. Our original concern, without the proposed amendment, is our prison industries would be impaired. We make furniture, cars, boats, beds, and stained glass, so our inmates need to lawfully have an ability to possess and use the tools for their jobs.
With regard to whether or not the department would prosecute more inmates, that is a decision made by the attorney general’s office. Inmates can make a tool out of a toothbrush or a bar of soap or anything else. If we find a shank made out of a toothbrush in a cell occupied by two men, we have to be able to show which guy possessed it in order to prosecute. We would not have any objection to a statute making it easier for the attorney general to prosecute cases by defining the making and possessing of certain tools for the purpose of or attempting to escape.
I do not know if administrative discipline will be increased or decreased on our part because inmates have always spent their time trying to fashion instruments. Having been a prosecutor in the attorney general’s office for inmate crime, the problems Gerald Gardner testified to are there. The way the statute now reads, it is very difficult to prosecute if we find someone simply in possession, which is why we have not pursued a lot of them in the prison before. We would speak in favor of this bill with the amendment.
Mr. Blinn:
Learned counsel has said truthfully what I was going to present to you. The genius of man allows him to resort to all kinds of things to make escape material. Punishments for escape, attempt to escape, and escape using a weapon are already on the books. Adding another million dollars to the budget to punish some lifer who is already doing “three lifes and no hope” sentences because he had a handcuff key is a bit ridiculous. Would you prosecute a lesser inmate more than you would somebody who is already doing three lifes? To me such prosecutions would be frivolous and a waste of money.
As a citizen, I do think I need to point some things out to you. Dental floss was used in the Clark County jail to braid into twine so it could pull up a suitable rope for use to repel. The dental floss was escape material. The scars on my hands are from when I was jumped. I was taken to the Carson-Tahoe Hospital emergency room. The guard forgot his handcuff key. A Sunday school teacher could have been sent with me and I would not have tried to escape, as I was a short-timer, so he trusted me with my word. I was belly-chained and bleeding all over the floor. There were no windows I could fit through, so he stepped outside and I solved the problem by using the nurse’s bobby pin to get out of the restraints. I was not trying to escape, I was trying to get sewed up where I was bleeding, and these scars still show.
Intent must be proven along with the suspected item. It does not make sense to outlaw bobby pins or dental floss. In the riot of 1975, State-issued toothbrushes made of thermosetting plastic were heated and jammed into those unpickable cell locks and opened all those doors on Fifth Street at Old Max. You would not think a mop string, a little mop string, was used to hide a cut in the bars until it came time to kick out the bar. Is a mop string escape material? Yes, under this law. A Canadian prisoner escaped in a mail sack. Is that escape material? I guess you could so construe, but the important fact is he escaped. He was caught. Then inmates have the fear aspect. Another inmate escaped when laundry was being taken to medium from max.
Senator Titus:
Mr. Chairman, is there anybody we have been able to keep in jail?
Mr. Blinn:
Well, I am giving you the facts and you have kept a lot of them in jail.
Chairman Amodei:
Thank you for your testimony. We will consider it in the context of S.B. 299.
Mr. Blinn:
You can see it is going to cost more money for the frivolous prosecution of somebody who is doing all day and no hope. It is not going to change the fool who stabbed the guard. We have assault and other things to tie to him. You already have statutes and you do not need to give the public “pretender” and the AG another reason to use your budget.
James F Nadeau, lobbyist, nevada sheriff’s and Chief’s Association/north, and washoe county sheriff’s office:
I am representing Washoe County Sheriff’s Office and Lieutenant Karen Coyne from Las Vegas Detention and Enforcement has also asked me to speak on her behalf. We support this bill for a whole variety of reasons I will not go into at this moment because they have already been said.
Chairman Amodei:
With no further testimony we will close the hearing on S.B. 299 and open the hearing on S.B. 397.
SENATE BILL 397: Revises various provisions governing sex offenders and offenders convicted of crime against child. (BDR 14-441)
Joe Ward, Jr., Senior Deputy Attorney General, Office of the Attorney General:
I am here to support S.B. 397, the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, commonly referred to as the Wetterling Act, which was amended by the Campus Sex Crimes Prevention Act (CSCPA) and was designed to provide for the tracking of convicted, registered sex offenders enrolled as students at institutions of higher education or working on campuses. The definition of workers and students is decidedly broad in NRS 179D.110 and NRS 179D.120. Senate Bill 397 will bring Nevada into compliance with the CSCPA and will require sex offenders to provide notice to each institution of higher education as defined in section 6 of your bill. The bill recognizes campuses are communities within communities having their own campus police. This bill will help insure registration information is immediately available to the campus police and entered into the Nevada Department of Public Safety sex offender registry. States failing to comply with CSCPA’s amendment stand to lose 10 percent or will lose 10 percent of their Byrne grant money, which I understand would approximate $500,000 for the State of Nevada.
Senate Bill 397 does several things. It requires a court to inform an offender of his statutory duty to comply with Nevada’s registration laws and to immediately notify the appropriate law enforcement agency with information concerning his enrollment or work at an institution of higher education. When I use the term offender, I am referring to a person convicted of a crime against a child, or a sex offender. The list of offenses which designates a person as a sex offender is delineated by NRS 179D.410 for registration purposes, and NRS 179D.620 for community notification purposes. When I use the word offender in the broader sense, it means an offender convicted of a crime against a child, or a sex offender. This bill will also require the Nevada Department of Corrections and the local law enforcement agencies where such an offender is incarcerated, to inform him of his statutory responsibility, under Nevada’s sex offender registration laws, to promptly notify the appropriate local law enforcement at the institution of higher education, if he intends to enroll or work.
The law was something U.S. Senator Jon Kyl from Arizona presented and it is a law recognizing sex offenders love anonymity; they tend to fall through the cracks. It is recognized that campuses are communities within communities and tightens up these cracks to avoid sex offenders falling through such cracks.
Senator Wiener:
I see the addition of “or conspiracy” and I am wondering how we have addressed this conspiracy component and what this involves.
Mr. Ward:
Conspiracy is often used by attorneys who come up with creative plea bargains. Typically it is a fictitious plea. I got this suggestion from Adam Wygnanski, a Reno police officer who suggested this addition, so people who agree with two or more other persons to commit a crime against a child or to commit a sex offense, as delineated in our statutes, is definitely the kind of person, regardless of the creative ability of plea bargains, of whom society needs to be aware. Anybody agreeing with another person to commit a crime against a child or to commit a sex offense is a person we need to keep track of and register.
Senator Wiener:
In your statement, I heard the word conspiracy used in two contexts. One was in terms of plea bargaining, possibly for a plea purpose as a lesser offense, but also for those who would conspire to perform sexual misconduct against a child. Is this one more tool in terms of plea bargaining? Was this your intent or was it to bring in those who may plot sexual misconduct against a child, but may not actually perform the act of sexual misconduct.
Mr. Ward:
It takes away the creative plea bargaining tool. If there truly is a conspiracy, then a person convicted of a conspiracy is the type of person who needs to be required to register. For public safety purposes, tabs could be kept on that person. I do not think it takes away defense or prosecutorial discretion. It does not take away creative ability; perhaps it creates more of an incentive to come up with more creative fictitious pleas, if the plea bargain is deemed by both the prosecutor and defense counsel and the court as the prudent course to take.
Senator Wiener:
Without this, what are we currently doing with the conspiracy component?
Mr. Ward:
Conspiracy is not a registerable offence, which is addressed by the suggestion of Adam Wygnanski of the Reno Police Department.
Senator Care:
I understand the reason the legislation is before us. Apparently there is a high rate of recidivism associated with sex crimes. Have you come across any data to suggest a convicted sex offender who is enrolled in college is more likely than not to strike again on campus, as opposed to off campus? Conversely, will a sex offender who is not a college student be more inclined to strike off campus rather than to stray onto the campus? I understand the need to track and we are compelled to enact this bill because of federal legislation, but I am wondering about whether there really is a correlation between being enrolled or working in an institution of higher learning and where the next crime might take place.
Mr. Ward:
I am not aware of any statistics showing there are more repeat offenses committed on as opposed to off campuses. You are correct in pointing out recidivism among sex offenders is a well-recognized problem. I am not aware of the statistics to address your question.
Campuses have their own campus police, albeit there is concurrent jurisdiction with outside law enforcement. It is an untapped resource and tool to put people who are likely to come into contact with sex offenders on notice. I say likely to come into contact with sex offenders because if a sex offender anticipates or expects to enroll or be employed on campus, the campus police will have immediate notice of the registration. Statistically, I cannot tell you if the recidivism rate is higher on campuses as opposed to off campuses.
There is perhaps a modest fiscal note for not only the current requirement of immediate notification to the central repository, Department of Public Safety, so we have accurate, up-to-date information on a sex offender registered in this State, but also through whatever conduit they want to use, immediate, perhaps carbon copy, or, sending it off to the appropriate campus police.
Senator Care:
Conceivably, the rationale is a convicted sex offender could, in essence, vanish and in fact do so by enrolling in a university and moving into a dormitory. He still uses a name, but has anonymity; he is a face in the crowd.
Section 17, subsection 3, paragraph 6, talks about a campus police department providing the campus community with notification concerning persons who pose a threat to the safety of the campus community. Is there a definition of campus community? Could it be off campus? It would seem to me it could be a university district. Who poses a threat to the safety of the campus community? What would the standard be and who would make the determination?
Mr. Ward:
Senator, you have an excellent question. This language is designed to give campus police broad discretion. By statute there are jurisdictional lines for the campus police. I do not mean to say the campus community is confined to those parameters, but it is designed to give the campus police department some flexibility. For example, an offender who is enrolled or who is a worker in the broadest sense of the term as defined by our statutes at a campus, will not be heard to complain if, in good faith, the campus police officer is attempting to put people on notice. Arguably this extends beyond the campus community. Senate Bill 397 is just a wonderful tool, a wonderful resource to take advantage of recognizing campuses are communities within communities.
Mr. Blinn:
I am definitely for this piece of legislation. This is a good piece. I would say, like Mills Lane, “Let us get this one on.” The only thing I might amend is I would turn this guy over to the Mothers Against Drunk Drivers, but maybe that is a little severe.
Mr. Nadeau:
We support this legislation. From our perspective, we want to make sure the individual is still required to register with local law enforcement sex offender units, which are involved with Reno, Sparks, and Washoe County. Senator Care, in answer to your question, offenders are rated in tiers. What tier level they are as a sex offender determines how the community is notified. We do support the bill including the conspiracy aspect, which is also a really important element.
Ms. Holmes:
The tier system establishes the level of dangerousness. I concur with Mr. Nadeau. My department regulates the psychological panel process the sex offender inmates go through. The conspiracy issue is relevant in this regard. We have found inmates whose crimes are totally sexually related are often convicted on or pled to other charges. For example, a 25-year-long sex offender from California was convicted in Nevada. He pled to and was convicted of first degree kidnapping and armed robbery, which have the heaviest penalties, but are not listed among the sex offender crimes requiring the psychological panel. He kidnapped the woman and brutally raped her, the whole purpose of the armed robbery was to kidnap her and rape her and everything else.
There is a problem in the statute when the underlying nature of the crime is not addressed. For example, in a conspiracy case they often plead to something else. In this regard, it is important to have conspiracy included. Adam Wygnanski and the officers in the street know this and sometimes are mad at prosecutors because we will plead someone to something other than what they actually did. Sometimes this is done for many different reasons, but somehow it is important to reflect the underlying nature of the act itself. The conspiracy part of this law will allow this to happen and this is something we might have to look at in some future time on a sex panel as well.
Senator Care:
Let me get back to the definition of campus community. Here is my concern, arguably this would be every campus employee, every professor, but also it would mean the coffee shop or the book store right across the street from the campus, someplace where professors and employees and students hang around. To me it is vague and I do not know that you can confine it in terms of a geographical area.
Ms. Holmes:
I agree with you, there is some vagueness, but Mr. Ward spoke correctly when he said the actual jurisdiction of the campus police is defined. There is a cooperative working relationship. Most campus police have memorandums of understanding with the local police and cooperate on everything. We are not going to run into the problem where the notice stops here and does not go across the street to the coffee shop because Reno police will pick it up on this end, University of Nevada, Reno, police on that end, same with UNLV and campus police. Perhaps the language might be changed to say the “jurisdiction of the campus police,” because then it defines it for them. I do not think it will leave out the extended campus community. The language is a little bit vague. As a practical matter, it will not present a problem how this is going to be implemented.
Also, Senator, in response to your earlier question, I supervise psychologists and the psychological panel. My experience has been there is not necessarily a correlation between sex offenders on campus and how they repeat. Pedophiles’ recidivism rate is about 99 percent. Those people pretty much cannot be rehabilitated, according to the literature and the scientific studies. Their victims are children and most little children are not on college campuses anyway. However, a predator, the kind of sex offender who is in it for the rape and the violence, definitely presents a risk to reoffend in his environment. Ted Bundy is an example. One of his victims in Florida was my husband’s college girlfriend. I have a lot of personal knowledge about the case because I have heard about it for many years. I am not sure you can define their environment by where sex offenders may be going to school. It is just where the victims are, and the type of victims they are attracted to.
Sandy Mazy, Acting Administrator, Office of Criminal Justice Assistance, Department of Public Safety:
I am here in support of this bill. Unfortunately, the federal government has tied the requirement of a campus sex crimes act to our Byrne Discretionary Grant Program grant and without this bill we would lose 10 percent of our Byrne grant funding this year and every year in the future we do not have something like this in place.
Bradley Wilkinson, Committee Counsel:
I just wanted to make a point about the campus community. This term is referenced several times in the federal law, in the CSCPA. It is not defined there, but it is used in several different sections where it is talking about the kind of notification contemplated. It is not defined, but the statute as currently drafted is consistent with the federal law.
Chairman Amodei:
With no further testimony, we will close the hearing on S.B. 397 and open the hearing on S.B. 435.
SENATE BILL 435: Requires leave of district court to be obtained before filing of certain subsequent postconviction petitions for writ of habeas corpus. (BDR 3-434)
Victor H. Schulze, Capital Case Coordinator, Office of the Attorney General:
I am with the attorney general’s office, special prosecutions habeas corpus unit, and I also do work with victim advocacy and hate crimes. I will read my testimony into the record (Exhibit G).
Mr. Blinn:
I am representing the pro per, the indigent, the man with no money to pay for a lawyer and is therefore his own lawyer. The parameters of habeas corpus have been redefined and narrowed already. Do we do away with the law and destroy the checks and balances by getting a district court to rule on itself?
I would rather see you err on the side of generosity than to keep somebody in jail who does not belong there. I also heard it testified in death penalty cases over 50 percent of the cases on death row have reversible error in them. Anything that would shut down somebody in prison, much less death row, should not be allowed to narrow the defense’s position.
Michael Pescetta, Attorney:
I am a lawyer. I practice in the area of the death penalty and habeas corpus. Let me state for the record, I am here representing myself and as a member of the Nevada Attorneys for Criminal Justice, not as a representative of the Federal Public Defender, 9th Circuit Court of Appeals.
This unnecessary bill does nothing but add procedure for the sake of procedure, and complication for the sake of complication, and expense for the sake of expense. If you look at the statutes we currently have for dealing with successive habeas corpus petitions, the provisions in NRS 34.745 allow the State district court to summarily dismiss a successive petition that does not satisfy the standards for allowing us to file a successive petition under NRS 34.810. The procedure this bill proposes is superfluous because the district court already has power to summarily take care of a successive petition where adequate cause had not been alleged for filing a successive petitions under the current standards.
This bill adds one more level of appeal to the procedure we have now. We file a successive habeas petition and the district court reviews it. If the court does not summarily dismiss the petition, it can give a hearing; it can review some of the claims on the merits.
This bill requires the petitioner to file a motion to file a petition. If that motion is either granted or denied, either party then gets to appeal to the Nevada Supreme Court. If the motion is meritorious, then the Nevada Supreme Court is going to have to send the case back to the district court to consider the petition again. All we have done, in any case where there is a meritorious claim, is to build in additional expense, about a 2-year delay of an initial consideration of the motion, an appeal to the Nevada Supreme Court, and then a remand to the district court.
Mr. Schulze indicated Senate Bill 435 does not change the standards we already have in place. The district court can already do what it needs to do in terms of dismissing these petitions under the law, as it currently exists. If the petitions are meritorious, all this motion provision would do is add an additional level of litigation and expense.
I can give you my experience on this. Out of the four exhaustion of remedies petitions we have brought back into State court from federal court, we have received penalty relief in three of those four cases. Two of them are on appeal to the Nevada Supreme Court. If this procedure had been in effect on those two cases currently on appeal, we would have had to go to the district court, file a motion, the motion would have been granted, and the State would have appealed to the Nevada Supreme Court. We would then have been sent back to the district court for the hearings resulting in relief. This is not a cost-saving mechanism.
When a district court has a hearing or undertakes consideration of cause of prejudice, which is the standard for filing a successive petition under NRS 34.810, frequently there has to be a consideration of the merits as well as the standard of cause, in order to determine whether or not that successive petition should be entertained. What we would be building in with this motion practice would be that we first have to have a hearing on the motion, to determine whether the petition can be filed, and then we have to have another hearing to determine whether or not the petition should be granted. This is not a situation we should encourage, because it is just more complication not only for death penalty cases but for all cases. By enacting this legislation, you would be complicating, delaying, and increasing expenses, which, in theory, are all the things this bill is supposed to correct.
Senator Care:
Mr. Pescetta, do you think the petition process is abused?
Mr. Pescetta:
Well, it can be. It is not by us.
Senator Care:
In fact, the cases you handle are so serious I would even set those aside. Just as a general proposition, do you think the petition process is abused?
Mr. Pescetta:
No, actually I do not, Senator. The difficult situation we have in Nevada in terms of our process for dealing with habeas cases in both capital and noncapital cases is in general the quality of the attorneys who practice in this area is very low. Frequently in noncapital cases there is no appointment of counsel at all for an initial habeas petition.
Even if you have consecutive for-life-without-possibility-of-parole sentences, there is no law requiring the State district court appoint counsel, even if you have a meritorious constitutional claim. Generally, a case goes through the State system on initial petition. Counsel is not appointed and there is a very low level of litigation. The case goes to the federal district court for a review under the federal habeas corpus statute. If counsel is appointed at that stage and it turns out there are meritorious constitutional claims, which then have to be exhausted by being presented to the State court, parenthetically, the attorney general’s office has the power to avoid that completely, the exhaustion requirement can be waived if federal court and the merits can be determined in federal court without exhaustion. As a matter of policy, the attorney general’s office never does that. It always induces a successive petition in State court. Then you have a situation where the petitioner has to go back to State court to exhaust those constitutional claims before seeking relief in federal court. This is what Mr. Schulze characterized as the abusive part of the system. The difficulty it demonstrates is the quality of litigation in State court often is so low the constitutional claims are not found or are not litigated adequately in the initial petition. Once the case gets to federal court and those issues are fleshed out, then it has to go back to State court.
There are what we refer to as recidivists; they are principally noncapital people in State prison who have filed 10 petitions. There is nothing to discourage these people except deny them. Under NRS 34.745, the district court has the opportunity, as soon as a petition is filed, to decide if anything alleged would get the case back into court or it would be summarily dismissed. This procedure has one less step, under the statute now, than this proposed bill would add.
Senator Care:
I am primarily a civil litigator. Based on your experience, what is the retainer agreement between the defendant and counsel? Is there usually anything about covering the post conviction matters, or is it usually just through the trial?
Mr. Pescetta:
It is very rare to have retained counsel in serious criminal cases. All of our clients on death row are indigent. In fact, virtually everybody in the Nevada State prison is indigent. In some of the high profile cases we have recently seen in Clark County, counsel has been retained through the trial and through direct appeal. Generally speaking, when seeking habeas corpus, one of the major claims is ineffective assistance of trial or appellate counsel. You do not have trial or appellate counsel doing habeas proceeding.
If somebody has the money, she or he can, of course, retain and have the assistance of counsel and file a habeas not in pro per, but as a retained case, because there is certainly nothing prohibiting retained counsel from providing representation, but that happens so rarely I do not know if I have even see two cases in which that has occurred. What we are talking about is the indigent filers who have to ask for appointment of counsel by the court on the initial habeas. Routinely, even in the most serious cases, counsel is not appointed.
JoNell Thomas, Attorney:
I am an attorney in private practice in Las Vegas. I am also a member of the board of directors for the Nevada Attorneys for Criminal Justice, and one of the few private attorney practitioners who actually practices in the area of habeas corpus law, an area I hope to get out of soon because I am tired. I have too many cases because there are so few practitioners in this area. It is an area where public defenders do not practice because there is always a conflict of interest. It is left to a handful of private attorneys to contract at very low rates to handle these cases.
I highly dispute the idea there is no fiscal impact to this bill. Costs are incurred not only as payment for attorneys, but also in court time, both at the district court level and at the appellate level. Adding another appeal into this process will prolong all of these cases by at least a year or two. There are also the significant expenses of actually preparing for an appeal. Often in noncapital cases, a record appendix has to be prepared. I have had record appendixes cost several thousand dollars. I have to put the money up front before appealing and before I am reimbursed by the State. There are preparation costs of the appeal. There may be travel to Carson City. There is also an additional energy expense to a case when it goes up on appeal. After I finish a brief, I then put it aside to work on the next matter. If a case is remanded from the Nevada Supreme Court, I have to relearn that case. I have to essentially read the record again or at least a big chunk of it, so I am ready to go again.
In cases where counsel is appointed, I see in this bill easily a $5,000 to $10,000 expense per case. Even in cases where counsel is not appointed, the district courts and the Nevada Supreme Court are going to be incurring significant expenses. I certainly concur in everything Mr. Pescetta had to say. This is an unnecessary procedure. In the current process, the State routinely files a motion to dismiss without addressing the merits of the case. If the district court grants the motion to dismiss, the case is over and it goes through the appellate court. In the few cases where the district courts do find good cause and the case proceeds, it is the appropriate remedy and the appropriate process. I urge you not to adopt this bill, or if you do elect to adopt this bill, to seriously consider the financial impact it is going to place on the State and the counties because of it.
Nancy E. Hart, Lobbyist, Nevada Coalition Against the Death Penalty:
I am president of the Nevada Coalition Against the Death Penalty and a representative of Amnesty International in Nevada. I am also a deputy in the attorney general’s office though I am not here in that capacity. I am here on my own time, speaking as a private citizen.
The coalition is a statewide organization of individuals and organizations who are working to end the death penalty in Nevada. The coalition is opposed to S.B. 435 because it places unjustified and very serious restrictions on the defendants’ ability to raise valid legal claims challenging their convictions and/or their sentences.
Our specific concern with S.B. 435 is with its application to capital or death penalty cases. I will not pretend to be an expert on the procedural rules in criminal and capital cases. What I do know is Nevada is among those states with very high error rates, at least in capital cases. I would like to draw your attention to a Columbia University study titled “A Broken System: Error Rates in Capital Cases, 1973-1995,” which was a national study of capital cases headed by Columbia University Law Professor James S. Liebman. The study itself came out in 2000, and a part 2 of the study came out early last year. The study documented error rates well over 50 percent in federal court cases, meaning either reversals or sent back for new hearings because of legal errors made in lower courts. Nationwide, the rate of error was 68 percent, with Nevada being among those in that range. Even if the error rate were just half, it would still mean legitimate claims are being raised, and it demonstrates claims exist. If those claims exist at the federal level, then certainly they exist at a state level. We should not assume the defendants have adequate access to raise all legal claims the first time they file for relief. The last thing we should be doing is restricting the ability to file for possible relief in court.
I would also like to bring your attention to the subcommittee which studied Nevada’s death penalty during the interim. Three of this committee’s members served on that subcommittee and are quite familiar with what the study undertook. At the conclusion of the study, the subcommittee made a number of recommendations including important legislative changes which are now pending in a handful of bills this session. All of the subcommittee’s recommendations address issues of fairness and accuracy in Nevada’s death penalty. No matter what your view is with respect to the death penalty, it is critical we ensure it is fair and it is accurate. The ability to pursue legal claims in State post-conviction proceedings goes to the heart of fairness and accuracy. Restrictions on petitions for post-conviction relief can prevent the necessary court reviews protecting against the risk of executing an innocent person or a person who should have received a lesser sentence.
Are we indeed reserving the death penalty, the State’s ultimate and irreversible penalty, for the worst of the worst criminals? The coalition believes S.B. 435 is directly counter to that fundamental goal and should be rejected.
Senator Nolan:
My question refers to the report you cited. You said there were errors in 50 percent of the capital cases and those errors resulted in cases either being returned back to court or being dismissed. I am not sure what the results of those error rates exactly were.
Ms. Hart:
The overall nationwide error rate was found to be 68 percent. My testimony stated it was well over 50 percent. I would be happy to provide a copy of this report to the committee. The error rate means there was an error found in the federal case at the federal level sending a case back for either reversing the conviction or sentence, and/or requiring some further proceeding at a lower level.
Senator Nolan:
Were those the only two outcomes, the reversal or to have those cases sent back, or is there some other procedure? Were there some cases where errors were identified, but the case was allowed to proceed?
Ms. Hart:
I cannot answer your question, but my recollection and my understanding is these were reversals meaning they were sent back for additional relief.
Chairman Amodei:
With no further testimony, we will close the hearing on S.B. 435. We have a couple of bills ready to be work sessioned, if it is the pleasure of the committee. The first one is S.B. 300 with various changes concerning technological crimes and was heard March 27.
SENATE BILL 300: Makes various changes concerning technological crimes. (BDR 15-438)
Chairman Amodei:
Mr. Higgins from the attorney general’s office was the primary presenter of the bill with additional testimony from Las Vegas Metro and the Nevada Cybercrime Task Force. There was no opposition testimony. The intent of the bill is to bring Nevada in line with the Electronic Communications Privacy Act. There is a proposed amendment from the Office of the Attorney General at tab A (Exhibit H), with sections 4, 7, and 8 for deletion.
SENATOR MCGINNESS MOVED TO AMEND AND DO PASS S.B. 300.
SENATOR WEINER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY
*****
Chairman Amodei:
We are going to skip over S.B. 316 (Exhibit H). Senator Care is waiting for some additional input from Mr. Graham. This bill will have no action at this time.
SENATE BILL 316: Revises provisions pertaining to issuance of search warrants. (BDR 14-1278)
Chairman Amodei:
Senate Bill 394 was also heard on March 27 (Exhibit H).
SENATE BILL 394: Revises various provisions relating to certain criminal statutes. (BDR 15-1026)
Chairman Amodei:
The measure is broad. If you look at discussion in response to two recent Nevada Supreme Court cases which held certain provisions of the NRS are unconstitutionally vague, the objective of this bill is to remove that vagueness. One case related to the crime of annoyance or molesting of minors and the other one related to methamphetamine matters. There was no opposition testimony and no amendments were offered.
SENATOR TITUS MOVED DO PASS S.B. 394.
SENATOR NOLAN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei:
With no further business to come before the committee, we are adjourned at 10:37 a.m.
RESPECTFULLY SUBMITTED:
Lora Nay,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: