MINUTES OF THE

SENATE Committee on Judiciary

 

Seventy-second Session

April 15, 2003

 

 

The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:30 a.m., on Tuesday, April 15, 2003, in Room 2149 of the Legislative Building, Carson City, 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:

 

Assemblywoman Kathyrn (Kathy) A. McClain, Assembly District No. 15

Assemblyman David R. Parks, Assembly District No. 41

 

STAFF MEMBERS PRESENT:

 

Nicolas Anthony, Committee Policy Analyst

Bradley Wilkinson, Committee Counsel

Barbara Moss, Committee Secretary

 

OTHERS PRESENT:

 

James F. Nadeau, Lobbyist, Washoe County Sheriff’s Office

Jeffrey Riolo, Forensic Science Division, Washoe County Sheriff’s Office

Don L. Means, Assistant Sheriff, Washoe County Sheriff’s Office

M. Norman Kemberling, Senior Deputy Attorney General, Criminal Justice Division, Office of the Attorney General

Karen M. Coyne, Lobbyist, City of Las Vegas

Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department, and Nevada Sheriff’s & Chief’s Association/South

David M. Smith, Management Analyst III, State Board of Parole Commissioners, Department of Public Safety

Kendra Jones, Student, Carson High School

Molly Fronapfel, Student, Carson High School

Samantha Wang, Student, Carson High School

Meaghan Antle, Student, Carson High School

Annamarie Theuret, Student, Carson High School

 

Chairman Amodei:

The hearing is open on Assembly Bill (A.B.) 55.

 

ASSEMBLY BILL 55 (1st Reprint): Provides for collection of biological specimens for genetic testing from certain persons. (BDR 14-330)

 

James F. Nadeau, Lobbyist, Washoe County Sheriff’s Office:

Assembly Bill 55 continues work started last Legislative Session when persons who contribute to the Combined DNA Indexing System (CODIS) was expanded to Category A felony, Category B felony, and some Category C felonies. There were gaps as to which people should be included and S.B. 55 takes care of the issue.

 

Jeffrey Riolo, Forensic Science Division, Washoe County Sheriff’s Office:

The CODIS is a deoxyribonucleic acid (DNA) database system in Nevada. A person convicted of a serious offense, in general, a Category A felony, Category B felony, or a violent Category C felony, must provide a sample in order to have a DNA profile run. The DNA profile is then put into a database and unsolved cases, such as sexual assaults or homicides that have a DNA profile, can be compared to the convicted offenders to ascertain whether they contributed to the DNA profile. It is done at both the State and national level.

 

Senator Wiener:

Section 1, subsection 5, of A.B. 55 says:

 

A court shall not order a biological specimen to be obtained from a defendant who has previously submitted such a specimen for conviction of a prior offense unless the court determines that an additional sample is necessary.

 

Mr. Riolo:

When an individual is released from the Department of Corrections facility and supervised by the parole and probation office, the Department of Corrections would have already collected a DNA sample, therefore, the parole and probation office would not have to collect it again. The DNA sample is only collected once.

 

Senator Wiener:

Section 1, subsection 5 of A.B. 55 says “… unless the court determines that an additional sample is necessary.” What kind of situation would require a second sample?

 

Mr. Riolo:

The first DNA samples collected were blood samples. Current DNA samples are saliva from the inside of the mouth taken with an oral swab. From a processing point of view, saliva samples are better than blood samples. If it is unsure whether or not a sample was collected from a convicted offender, the court may order a sample.

 

Chairman Amodei:

What is the technology for keeping DNA samples? Is spoilage an issue? When a sample is collected, is a profile run and then reduced to a file? Do you keep the actual sample in cold storage or frozen? How does it work?

 

Mr. Riolo:

The sample is collected on a cotton swab, such as Q-Tips. Swabbing the inside of the mouth with a cotton swab collects enough cells to obtain a DNA profile. After collection, the sample is placed in a box, allowed to air dry, kept at room temperature indefinitely, and preserved that way. The laboratory uses a portion of it to obtain the DNA profile.

 

Chairman Amodei:

Is there a central repository for DNA profiles?


Don L. Means, Assistant Sheriff, Washoe County Sheriff’s Office:

Washoe County has been designated the State repository for DNA samples. Half the sample is retained. If there is a “hit,” the sample is reanalyzed to ensure it is exactly the profile the “hit” was on, therefore, we have confirmation. The entire sample is not consumed, only part of it is used.

 

Mr. Nadeau:

In the Assembly-amending process, language was removed from the original bill on page 3, lines 15 and 16 of A.B. 55, which was, “failing to register with a local law enforcement agency as a convicted person as required pursuant to [Nevada Revised Statutes] NRS 179C.100.” It is required of people entering the State who must register as convicted persons.

 

Chairman Amodei:

Is it generally a convicted felon?

 

Mr. Nadeau:

The language says, “…Registration with local law enforcement officer within 48 hours; duties and procedure; effect of … .” It also talks about other things regarding restoration of life. Upon entering Nevada, convicted persons are required to register with a local law-enforcement agency within 48 hours. They are also required to register if they have been convicted of a crime in another state that would be a felony in Nevada. There is current legislation which may change some of that language. Ultimately, there is a bill moving from the Assembly that may change when convicted persons are required to register. We would like to maintain the requirement if convicted persons are required to register in the State, they must also provide a DNA sample.

 

Chairman Amodei:

Nevada Revised Statutes 179C.100 addresses any convicted felons required to register when they get to the State. Is it sex offense related?

 

Assistant Sheriff Means:

There are convicted people throughout the State arrested for failing to register. They committed crimes which normally would have required a DNA sample. The records division constantly informs us of people arrested for failure to register. They come under the statute in regard to the crime they committed, however, their only offense in the State of Nevada is failure to register. Because they committed a crime that is of concern to law enforcement, and now reside in the State of Nevada, legislation is needed to collect DNA samples from convicted individuals.

 

Senator Washington:

Did we omit sex offenders and those who perpetrate crimes against children in the bill from the last Legislative Session?

 

Mr. Nadeau:

A DNA sample is required when a person is convicted of a sex offense. Should they be convicted elsewhere and fail to register in Nevada, a DNA sample is needed to prevent them from falling through the cracks. If a convicted person does not register, law enforcement will not know they have been convicted. This is particularly relevant in regard to convicted persons who come to Nevada from out of state, or some other type of situation.

 

Senator Washington:

Is Washoe County still the state repository for DNA samples?

 

Assistant Sheriff Means:

Yes.

 

Chairman Amodei:

Are there any additional questions or testimony on A.B. 55? Seeing none, the hearing is closed on A.B. 55. Mr. Wilkinson, do you understand the amendment?

 

Bradley Wilkinson, Committee Counsel:

I do.

 

Chairman Amodei:

The hearing is open on A.B. 73.

 

ASSEMBLY BILL 73 (1st Reprint): Revises provisions concerning certain crimes committed against older persons. (BDR 15-357)


Chairman Amodei:

The committee has been requested by Carson High School to receive testimony on A.B. 73 from a group of debate students. Therefore, when testimony is complete, the hearing on A.B. 73 will be recessed, but not closed.

 

Assemblywoman Kathyrn (Kathy) A. McClain, Assembly District No. 15:

Assembly Bill 73 is a simple bill and does two things. I was asked by the attorney general’s office to carry A.B. 73 because, in my other life, I am a Clark County senior advocate, therefore, it seemed appropriate for me to bring the bill forward. Basically, A.B. 73 lowers the age limit of what defines a senior in regard to different criminal activities against older persons. The bill brings into conformance all the NRS in compliance with the Older Americans Act of 1965 by lowering the age limit in the statutes from 65 to 60. Mark Kemberling, Senior Deputy Attorney General, Criminal Justice Division, Office of the Attorney General, drafted A.B. 73 and has some proposals to make some small changes.

 

M. Norman Kemberling, Senior Deputy Attorney General, Criminal Justice Division, Office of the Attorney General:

I will read my written prepared testimony (Exhibit C). There was concern restitution may never be paid because a defendant sentenced to make enforcement cost payments would be unable to make his or her additional restitution costs. There was little discussion on the issue and not enough time to research it.

 

There could be potential for restricting the court from ordering restitution for crimes that might have been dismissed because we would be left with a very specific statute limiting restitution only to the charges plead.

 

Restitution is a form of penalty ideally seen against a company, a corporation that may run a nursing home, or a board-and-care facility. I will continue to read my written prepared testimony (Exhibit C).

 

Along with those complexities and a need for outside experts comes the need to expend a lot of resources to prove a case like this.

 

It is logical that costs would also be imposed on crimes against the elderly. We have already set the tone.

 

Assembly Bill 73 had the support of the people who saw the problems day in and day out.

 

Even without computing these issues, the presently reported cost was $80,000 over a biennium, and it would take up to 11 years to reach the additional costs. Even without computing the offsets, the fiscal note, in the area of $80,000, would act as a deterrent to others. It is a slow, gradual, uphill increment of cost. I will finish reading my written prepared testimony (Exhibit C).

 

I submitted a packet (Exhibit D. Original is on file in the Research Library.) of some of the statutes, including the original A.B. 73, which was drafted with the cost provisions.

 

Chairman Amodei:

Please provide more detail regarding the priority for the amendment on investigative costs.

 

Mr. Kemberling:

In an Assembly Committee on Judiciary work session, committee members expressed concern that should the cost provisions be enacted, and a judge given discretion to order a defendant time in jail, probation, or restitution, and also pay some enforcement costs, such as the cost of an expert witness or some specialty enforcement techniques, the defendant would then feel obligated to pay the enforcement cost. Therefore, the enforcement cost would be paid, the enforcement agency would recoup some money, and the ultimate victim, the elderly person, would be left in a situation in which no money would be left to reimburse or pay restitution directly to that person.

 

The provisions cover abuse and neglect, as well as elder exploitation and isolation. Exploitation is a financial crime. There was a case in which a man who ran a board-and-care home embezzled up to $200,000 from the accounts of all the residents. Accounting costs were incurred in that case. Therefore, the man came up for sentencing and was ordered to pay restitution and some enforcement costs. Who did he pay first? It is logical restitution costs are paid prior to enforcement costs. Argument is heard at the time of sentencing. There is a generic, or general, restitution-cost statute. Usually the general statutes encompass the more specific or limited statutes. It is set up automatically to receive highest priority.

 

There are other cases in which an elderly person is slapped, punched, or deprived of food. Restitution for medical expenses for a slap or punch would be low, but enforcement costs could be high. We recently prosecuted three individuals working in a health care facility. One health care worker slapped a resident and warned the coworker and the roommate not to say anything. The cover-up caused a delay. Approximately 10 days passed and evidence was lost. The red marks and bruising were gone which made it difficult to prosecute for something as simple as a slap, even with two eyewitnesses. In addition, victims of dementia are unable to provide a straight story after 24 to 48 hours. Those cases are difficult to prosecute. Enforcement costs are there, however, restitution for a slap or skipped meals are not that high.

 

Senator McGinness:

Would the Assembly agree to restore the language?

 

Mr. Kemberling:

I do not know whether or not the Assembly would agree, but I think the cost provisions are a common-sense technique.

 

Senator McGinness:

Did you provide this testimony in the Assembly?

 

Mr. Kemberling:

I was unable to participate in that end of the discussion.

 

Karen M. Coyne, Lobbyist, City of Las Vegas:

We support reinstatement of the provisions on the restitution issue and wholeheartedly support A.B. 73, however, we have a concern and would like to offer an amendment not offered in the Assembly.

 

Currently, neither NRS 200.471, which is the assault statute, nor NRS 200.481, which is the battery statute, have enhancements based on the age of the victim. Nevada Revised Statutes 200.5099 appears to fill this gap by providing that one who causes unjustifiable physical pain or mental suffering to an older person is guilty of a felony. However, NRS 193.167, as applied to simple battery under NRS 200.481, was reasonably interpreted in 1985 by the Office of the Attorney General to say a simple battery charge enhanced by the allegation the victim was an older person is still a misdemeanor. Therefore, it appears there is ambiguity between the application of NRS 200.5099, and simple batteries under NRS 200.481. There also appears to be ambiguity between the application of NRS 200.5099, and the assault statute NRS 200.471. The problem needs to be fixed. We think the amendment we offer today will be a viable solution (Exhibit E).

 

In the criminal justice system, conflicts or ambiguities in legislation are generally resolved in favor of the defendant. A person charged with felony abuse of an older person might raise this conflict in seeking dismissal of his or her case, and it is possible the case could be resolved in his or her favor. The attorney general’s office also recognized in the 1985 opinion that NRS 193.167, when used to enhance punishment on misdemeanor batteries, caused such offenses to be categorized as serious offenses, rather than petty offenses. Serious offenses require jury trials and petty offenses do not. In that same opinion, it was also determined that municipal court is disallowed from hosting jury trials, and, with an enhancement case, the defendant is entitled to a jury trial.

 

The reality is many of these cases are referred to the city attorney’s office when the crime is committed within the jurisdiction of the city. We can only prosecute the crime as simple battery rather than prosecute in justice court as a misdemeanor with the option of a penalty enhancement. We offer the proposed amendment and support A.B. 73. We identified a gap and the proposed amendment is a viable alternative.

 

Mr. Kemberling:

We have heard there is a problem with going to trial in a municipal court on an assault or battery charge that has been enhanced due to the age of the victim. In everyday court sessions, simple misdemeanor assault or battery can be trialed. Municipal courts do not have the authority for jury trials, justice courts do. Justice court trials are with 6 jurors rather than 12 and is a more simplistic style of jury trial. With enhancement provisions, the straight crimes of misdemeanor assault and battery penalties double because the victim is age 60 or older, or 65 or older as presently written. Because of the double penalty, a defendant has the right to a jury trial. Due to the fact the defendant has the right to a jury trial because the penalty was pushed past 6 months, the municipal courts are not in a position to provide the trials due to the charter and the way the law is drafted. That does not preclude justice courts from conducting the jury trials. We charge this crime in the justice court system and, if necessary, we will go to trial.

 

We want to keep some misdemeanor version of a crime that specifically addresses the elderly in this bill package. Currently, the way the elder abuse and neglect statute is drafted, substantial bodily harm is not needed to create a felony if an elderly person is injured. There can be what is termed “infliction of pain, injury, mental anguish, or the deprivation of food, shelter, clothing, or other services.” Should that be done intentionally, willfully, and in an unjustified manner, the offender is subject to a felony. There are no gross misdemeanor and misdemeanor forms of abuse.

 

Logically, should an elderly person be struck just once on the face or arm, it is pain, but is it substantial enough to justify a felony in the court system? Probably not. There is also need for the misdemeanor to address the issue, and also as a bargaining out, or tool, to allow certain cases to be plead to an age‑specific, elder-specific, criminal violation. Why is it important to have an age‑specific, elder-specific, criminal violation at that level? It will also accomplish a track record on the defendant. We normally see, and studies have shown, this type of crime is progressive and similar to regular domestic violence. The branches of the federal government have taken it into account and should a health care worker be convicted of an age-specific, elder-specific crime, no matter the level, misdemeanor or gross misdemeanor felony, restrictive actions are taken on that person’s ability to work in the health care field. It is important for our unit, and the health care industry, that a lower level of crime exist to specifically address physical offenses to the elderly.

 

Should it be raised to felony level, I believe the element of assault, which intentionally places another person in reasonable apprehension of immediate bodily harm, and the element of battery, which is any willful and unlawful use of force or violence upon a person, does not match directly with the element of abuse, which is actual infliction of pain, injury, or mental anguish. The elements do not jibe and there is no direct match. There is still a need for that offense at the lower tier, misdemeanor battery and assaults.


Senator Care:

I tried to follow your explanation through the conundrum and the need for misdemeanor and gross misdemeanor. Let us say the Legislature mandates it a felony should a person even touch, or put a 60-year-old in fear of bodily harm. Should that be the desire of the Legislature, how could we address it given the fact municipal courts cannot have a jury trial for a person facing sentencing in excess of 6 months, and justice court has 6 jurors? From a policy perspective, what do you suggest should the Legislature insist on that approach?

 

Mr. Kemberling:

From a policy perspective, should there be no offenses of misdemeanor assault and battery with the age enhancement, we would be left with a big gap in prosecutorial tools that we could not fill. You could make up a charge and create a legal fiction of conspiracy, or attempt a felony elder abuse type charge to lower it, but the term “legal fiction” does not sit well with me, nor should it sit well with the citizens. You would be walking down a troublesome road by relying on legal fictions, or the congested nature of our court system, to allow things to be run through as quickly and in such great volume. I think it would be dangerous to take it out. It would most likely result in the use of legal fictions to come up with a lesser offense.

 

In order to process those felonies you must make it through justice court. Nothing can be resolved at justice court with a negotiated settlement at that level. You still have to go through justice court, a “prelim,” or the indictment proceeding. Consequently, there is a burden to the citizens and the justice and district court system, including increased resources, costs, and taxes by doing away with a misdemeanor-related offense.

 

Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department and Nevada Sheriff’s & Chief’s Association/South:

We support A.B. 73 as written, however, do not support the amendment submitted by the City of Las Vegas to make all batteries a felony. It does not make sense. We agree with the attorney general’s amendment on restitution versus costs as long as restitution comes first. Restitution is the only livelihood of many individuals. We look at it as the price of doing business. We agree with the attorney general’s office there are people who can, and should, pay the cost of investigation, however, restitution to the victim should come first.

 

Chairman Amodei:

The hearing on A.B. 73 is recessed pending potential input from the debate students from Carson High School. The hearing is open on A.B. 105.

 

ASSEMBLY BILL 105 (1st Reprint): Provides additional credits against sentence of parolee under certain circumstances. (BDR 16-550)

 

David M. Smith, Management Analyst III, State Board of Parole Commissioners, Department of Public Safety:

Assembly Bill 105 would allow parolees to earn the same amount of credits they currently earn in the Department of Corrections if assigned to a conservation camp or restitution center. Over the past couple of years inmates have begun to realize once released on parole they serve more time than they would in prison. To avoid having their sentences extended, they cease to cooperate with the parole process. The board worked with the Department of Corrections to take some intermediate sanctions, but also wants to equalize the amount of credits inmates can earn which will create an incentive for them to go on parole, pay restitution, get a job, and be positively rewarded for those things. That is basically the gist of A.B. 105. I spoke with Glen Whorton, Assistant Director, Operations, Northern Nevada, Department of Corrections, who expressed support for A.B. 105.

 

Senator Care:

How realistic is it to expect somebody on parole to be current with payment of restitution? In my experience, an order for restitution can be thousands, or tens of thousands of dollars, and nobody really expects it to be paid. Perhaps in a case where the order is $100 per month, payment might be current.

 

Mr. Smith:

Two factors must be considered in regard to restitution. Some inmates do not owe much and it is feasibly possible for them to remain current. A current statute requires inmates, with high dollar amounts of restitution, to pay while on parole unless they can prove economic hardship. In that event, the board can reduce the amount of restitution payments. On the other hand, if the amount of restitution is reasonable, and the inmate is not paying as much as he or she could, by not giving the credit of 10 extra days if he or she were current, the time on parole will be extended to allow more time to pay restitution.

 

Senator Wiener:

The other component of allowing this to occur is being current with the fee to defray the supervisory cost. Do supervisory costs vary, and what is the range?

 

Mr. Smith:

The monthly supervision fee for a parolee is $30 and I do not think it varies.

 

Chairman Amodei:

What is the pleasure of the committee on A.B. 105?

 

SENATOR MCGINNESS MOVED TO DO PASS A.B. 105.

 

SENATOR WIENER SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

*****

 

Chairman Amodei:

The hearing is recessed on A.B. 105 for a postscript by any interested debate student from Carson High School. The hearing is open on A.B. 189.

 

ASSEMBLY BILL 189: Makes various changes to provisions concerning false imprisonment. (BDR 15-960)

 

Assemblyman David R. Parks, Assembly District No. 41:

Assembly Bill 189 revises the provisions governing kidnapping and false imprisonment. It sets forth the elements for the crime of false imprisonment and penalties for committing that crime. A new subsection has been added to provide a greater penalty to be imposed upon a person convicted of false imprisonment in which the person imprisoned was used as a shield or imprisoned in a manner designed to help the perpetrator avoid arrest. A person convicted under this provision is guilty of a Category B felony and punished by a minimum term of imprisonment of not less than 1 year, and a maximum term of not more that 15 years.


Lt. Olsen:

We never realized the lack of a hostage or human shield law in the State of Nevada. Many times individuals have been arrested on charges that precipitated a crime that became a hostage situation, and some offenders were incarcerated for mental observation. After doing some research, we realized there was no law for this type of crime and wondered how it had slipped through the cracks all these years. Our plan is to put a law in place in the event a person is taken as a human shield or hostage which will provide us the authority to act on it.

 

Senator Care:

I dislike stereotyping, however, we have all seen movies of the knife to the throat, the gun to the head, and “we have you surrounded.” Is that the sort of thing we are talking about here?

 

Lt. Olsen:

Yes.

 

Mr. Nadeau:

We support A.B. 189.

 

Chairman Amodei:         

The hearing is closed on A.B. 189. What is the pleasure of the committee?

 

SENATOR WIENER MOVED TO DO PASS AND PLACE ON THE CONSENT CALENDAR A.B. 189.

 

SENATOR WASHINGTON SECONDED THE MOTION.

 

THE MOTION CARRIED. (SENATOR NOLAN WAS ABSENT FOR THE VOTE.)

 

*****

 

Chairman Amodei:

The hearing is reopened on A.B. 55.

 

ASSEMBLY BILL 55 (1st Reprint): Provides for collection of biological specimens for genetic testing from certain persons. (BDR 14-330)


Chairman Amodei:

There was a proposed amendment on A.B. 55.

 

Mr. Wilkinson:

The proposed amendment reinstates the language in the original bill as introduced, which would have provided for collection of biological specimens from persons who failed to register with a local law enforcement agency as a convicted person as required pursuant to NRS 179C.100. The language was removed in the Assembly and the proposal is to add it back in.

 

Chairman Amodei:

What is the pleasure of the committee on A.B. 55?

 

SENATOR WASHINGTON MOVED TO AMEND AND DO PASS A.B. 55.

 

SENATOR CARE SECONDED THE MOTION.

 

Senator Titus:

What is it, why was it removed in the Assembly, and why are we adding it back?

 

Mr. Wilkinson:

It provides for collection of a biological specimen from a person convicted of a failure to register with a local law enforcement agency under NRS 179C.100.

 

Senator Titus:

I guess I was looking for more information on NRS 179C.100.

 

Mr. Wilkinson:

Nevada Revised Statutes 179C.100 provides the requirement that convicted felons and people convicted of certain offenses in Nevada or in other states, primarily pertaining to controlled substances, are required to register with law enforcement. Mr. Nadeau can explain the reason the language was removed in the Assembly because I was not privy to the testimony.

 

Mr. Nadeau:

There was no discussion in the Assembly Committee on Judiciary in regard to the issue. There were several amendments to the initial bill. I do not believe it was intentional, it was inadvertent, but there was no discussion in regard to the reason the language was removed.

 

THE MOTION CARRIED. (SENATOR NOLAN WAS ABSENT FOR THE VOTE.)

 

*****

 

Chairman Amodei:

What is the pleasure of the committee in regard to A.B. 73? Is there a desire to work session the bill today, or does the committee want to consider the testimony and potential amendments? Assembly Bill 73 will be taken up in work session at a later time.

 

With respect to the medical malpractice bill, I spoke with Senator O’Connell and the staff this morning, and a two page, or less, floor statement will be drawn up including the present status of Initiative Provision (I.P.) 1, a description of the amendment for S.B. 97, what happens if that goes forward or fails with respect to the legislation, a description of the bills coming out of the Senate Committee on Commerce and Labor, and a brief description of any bills presently moving in the Assembly. When these measures get to the floor, the members have a synopsis or overview of what is in play and the status of the various and sundry provisions.

 

The committee will be in recess until 10 a.m. at which time the debate students from Carson High School will be present to discuss A.B. 73 and A.B. 55.

 

Chairman Amodei:

The hearing is out of recess and reconvened for the purpose of taking additional testimony on A.B. 73.

 

ASSEMBLY BILL 73 (1st Reprint): Revises provisions concerning certain crimes committed against older persons. (BDR 15-357)

 

Kendra Jones, Student, Carson High School:

I am a freshman at Carson High School. Assembly Bill 73 provides sentence enhancements to a person convicted of committing certain crimes against victims age 60 or older, or a mentally-disabled person. The bill would reduce the victim’s age from 65 to 60 and increase the number of potential victims resulting in more convictions with enhanced or longer prison sentences. According to the Department of Corrections’ fiscal note, 236,804 senior citizens, age 65 and older, currently reside in Nevada, and 94,395 are between the ages of 60 to 64.

 

After reviewing the fiscal note, I learned there would be no immediate cost to this plan until 2007 when the Department of Corrections estimated it would begin to cost money. Even with the delay, unless there is some other budget cut in the State, I believe there would be a need for a tax increase. The Department of Corrections estimated in November 2007 the cost for inmates serving an enhanced sentence would be $163.21, and by June 2008, 20 inmates serving enhanced sentences would cost up to $3,264.10.

 

Nevada’s budget is in trouble, the State is very close to being in debt, and the Legislature has no clear plan to raise taxes. The first 4 years of the plan with no cost is like candy coating, but, in fact, this bill will cost $87,967.50 per biennium from then on. That is quite a bit of money, if you ask me. I believe the citizens of Nevada dislike the fact taxes are rising, and I am positive taxpayers do not want to pay an unnecessary tax increase right now. Thank you for the opportunity to speak in opposition of A.B. 73.

 

Senator Care:

Do you not think it is worth $87,000 to send somebody to prison for beating up on old people?

 

Ms. Jones:

I think it is worth it, but with the current situation of having to raise taxes because the State is getting close to debt, A.B. 73 should be put off until taxes are lowered. At that time it would be all right to raise them because they would not be an outrageous amount.

 

Senator McGinness:

Do you know what tax proposals are in the Legislature? If so, which ones would your parents support?


Ms. Jones:

I have not followed taxes so do not know which ones my parents would support.

 

Senator McGinness:

One of the tax proposals is an amusement tax in which a young person, such as yourself, would be taxed at the movie theater or for rental of a video. Therefore, should it cost $10 to be admitted to the movies, with the tax it would probably cost an additional 70 cents. Do you think the tax increase would be worth it to support education, and so forth?

 

Ms. Jones:

I think that particular tax would be worth it. I think we should add more tax on amusements for A.B. 73 because we need to get the State clear of debt before we propose anything else that might be taking away from what we need to pay.

 

Senator McGinness:

Do you think we should not add any new programs until we get out of debt?

 

Ms. Jones:

We should not add any new unnecessary programs that are not vital right now.

 

Molly Fronapfel, Student, Carson High School:

I am a freshman at Carson High School. Assembly Bill 73 seeks reduction of the age of an elderly person who is criminally offended. I disagree, not only with the bill, but with the thought that the lives of elderly persons and their health are more valuable than young lives. This bill makes the elderly seem like victims of heinous crimes and their perpetrators should be punished more severely. Yet, in truth, people under 60 or 65 are being targeted as victims. It is telling them their lives are as valuable or as important. The elderly are important to us, but allowing the younger generation, who will be our future, more opportunity to be victimized is compromising our future. When I say more opportunity, I mean if the punishment is less severe, the criminals are out sooner. The more time on the street, the more time for crime. Our country is based on equality and no one life is of greater importance than another. I ask you whether this bill shows fair treatment to the people of America and, more importantly, the people of Nevada. In my opinion, it shows obvious bias against young people. Enacting this bill eliminates the opportunity for our future memories.


Samantha Wang, Student, Carson High School:

I am a freshman at Carson High School. I am here today to speak against A.B. 73. The bill proposes a harsher punishment for crimes committed against elderly and mentally disabled persons. We should not imply elderly persons cannot take care of themselves. We need to protect all citizens equally. We should punish criminals with equal penalties regardless of the age of the victim. We are encouraging felons to commit a crime against our future. Are we saying it is better to commit a crime against the young than the old? People need to feel safe in their homes. They need to feel safe wherever they go. They should feel they have the same rights and protection as anyone else.

 

In the year 2000 the population in Nevada was 1,998,257, the percentage of the population of 5 years and younger was 7.3 percent, the population of 18 years and under was 25.6 percent, the population of 18 to 60 years was 56.1 percent, and the population of 60 years and over was 11 percent. That clearly shows the citizens from age 60 or older make up 11 percent of Nevada’s population. What happens to the other 89 percent?

 

We should enforce and protect all citizens with equality, not just the elderly. The bill states, “… an older person or mentally disabled person … ,” does that mean we classify an older person with a mentally disabled person? Are we insulting the elderly? Are we implying elderly people cannot take care of themselves when they are capable of holding a job and taking care of themselves? America has been based on equality, so how are we being equal by saying someone committing a crime against the elderly will get a higher penalty? Should we be saying committing a crime against anyone is not right and should be punished no matter what? A crime is a crime and it is wrong no matter what, and a person is a person. Everyone can feel and get hurt. So, committing a crime against anyone should be punished equally regardless of who or what the age of the victim. The elderly can take care of themselves. We should not only restrict higher penalties to crimes committed against the elderly. Everyone needs to be treated fairly and protected equally by the law. We should also have equal penalties to protect not just the elderly, but all Americans, and our future.

 

Senator Wiener:

I appreciate the testimony offered by the three of you. When we look at developing legislation we weigh carefully what we bring to the table. We must consider our responsibility for the many who cannot speak for themselves, what we call the vulnerable population. Although you grouped seniors and the mentally challenged together, they are being handled separately. One of the concepts I heard from all three of you was fairness and equitability. This legislation is an attempt to create equitable treatment for the vulnerable population in order to even out and protect those who cannot protect themselves. We are not saying seniors should have greater protection than young people, but as people get older, or are mentally challenged, their vulnerabilities must be addressed and equity created to provide an even playing field for them. Therefore, given that concept, would any of you think differently, or address the issue differently, knowing we are attempting to make it equitable and fair for those who cannot protect themselves?

 

Ms. Wang:

Is a 5-year-old boy also part of the vulnerable population?

 

Senator Wiener:

Certainly, that is the other end. There are many special protection laws for young populations as well. The Senate Committee on Judiciary gives a substantial amount of attention to sex offenses with predators, issues with stalking, and a lot of work addressing issues for young people.

 

Mr. Wilkinson:

There are quite a few enhancements that provide specific greater penalties for crimes committed against children.

 

Ms. Wang:

Assembly Bill 73 states the mentally challenged would be protected. One of the definitions of mentally disabled is if someone in your immediate family had a catastrophic illness. I wonder about people who are physically challenged, like in a wheelchair, who seem to have more chance to be attacked than a healthy 60-year-old.

 

Senator Wiener:

Are there penalty enhancements for crimes against the physically disabled?


Mr. Wilkinson:

Senate Bill 394 was processed out of this committee and provided for specific crimes relating to acts committed against mentally ill persons. I am uncertain whether or not there are any specific enhancements for crimes against the physically disabled. There are general characteristics of the victim enhancements, as well as hate crimes enhancements.

 

SENATE BILL 394: Revises various provisions relating to certain criminal statutes. (BDR 15-1026)

 

Senator Wiener:

There was an interim committee that dealt with disabilities. There might be something emanating from the interim committee addressing physical disabilities.

 

Meaghan Antle, Student, Carson High School:

I am a senior at Carson High School. As a future registered voter and taxpayer of Carson City, I follow where tax dollars go. I think it is absolutely necessary for A.B. 73 to pass because I truly believe we need to protect the elderly and mentally challenged as the elderly protected us when they went to war. They are the roots of our foundation. Just as we protect young children because they are our future, we protect the elderly because they are our past. The elderly are seen as easier targets for violent crime, as well as the mentally challenged, because sometimes they cannot distinguish right from wrong. I would be more than happy to support A.B. 73 and pay for it, whether it is tomorrow or 7 years down the line. Thank you.

 

Senator McGinness:

Assembly Bill 73 says an older person is a person 65 years of age or older if the crime was committed before October 1, 2003, but at 60 years of age or older, if the crime was committed on or after October 1, 2003. Do you think we can arbitrarily set a date on when a person is older? I had grandparents who were older, but I did not think they were elderly. Do you think we can arbitrarily put a date on it?

 

Ms. Antle:

For certain purposes we must distinguish a fine line to separate one from another. Children must wait longer to go to kindergarten because of the cut-off date, and it is appropriate. Eventually, at a certain age, everyone would be covered under this, whether or not they have to wait a little bit. Crimes against the elderly are a horrible thing, and if they barely missed it by a month it would be bad. Legislators must set certain barriers in order to pass these bills.

 

Mr. Kemberling:

In regard to Ms. Antle’s testimony and questions asked about the age cut-off line, A.B. 73, as originally drafted, touched on several different statutes. As it made its way through the Assembly, only the amendments continued through the process sometimes leaving off definitions and titles of the original statutes touched by this bill. The break in age from 60 years of age has to do with one particular statute entitled, the habitually fraudulent felon statute, which is a felon who committed fraudulent offenses in the past. It is similar to a third‑strike statute.

 

In the past, a person was deemed elderly at age 65. If a felon committed a crime against an elderly person 5 or 6 years ago, he or she would be subjected to enhancement-type penalties, particularly after the third strike. If the law is changed to reduce the age from 65 to 60, a felon who committed two strikes on a person in the age gap of 60 to 65, and commits a third crime, the third crime will be deemed an ex post facto type crime that will put retroactively based additional penalties on the prior crimes. Therefore, we must have a cut‑off date for the new age reduction. There will be a starting date to avoid the problems of enhancing penalties due to past acts instead of present acts. One of the principles of our American justice system is the ex post facto effect in which we do not go back and put on additional penalties for crimes already committed.

 

We also discussed the costs in A.B. 73 up to the amount of $87,000. What has not been considered in this debate is if certain criminals are sentenced under this enhancement provision, it may be better suited for this type of crime instead of some other crime. What that means is, if somebody is penalized for an offense against a person age 60 years old, because of the age-specific enhancement, the penalty is doubled. Would that necessarily double our costs? The records reviewed by the students indicate the cost would increase, but not seen are the alternative offenses not being charged. The criminal may have been in jail for a different crime that did not specifically address this offense.


We now have a better-tailored statute that addresses a particular class of victims and by sentencing more criminals under that better-tailored statute we are, in fact, depleting some of the alternative charges to which those people would have been subjected. Therefore, it is not a straight increase of expenses, there is a balancing effect. For every person sentenced for the age-enhancement provisions, we may very well be losing another charge that is not age specific.

 

There are statutes that specifically address the vulnerabilities of special classes of people. There is a specific child abuse statute. There are specific statutes regarding telephone solicitation and trade practice. Ms. Antle hit the nail on the head when she said certain classes or groups of people are targeted over and above others, and the elderly are that type of class. If there was a choice of two people to rob, one in his or her 20s or one in his or her 80s, which one would the robber pick? A deterrent message is sent to criminals that if they take action against one of the vulnerable classes, they not only will pay for their crime, they will pay at an enhanced level.

 

Senator Nolan:

How did we come up with the age of 60?

 

Mr. Kemberling:

The age of 60 arrived from federal legislation, the Older Americans Act of 1965, Title 42, United States Code, section 3002, chapter 38, see Exhibit C, which determined the age of 60 to be that of an elderly person. We are conforming several of our statutes to that age. There is a primary block of statutes in Nevada that deal with the elderly, which are the elder abuse and neglect statutes at NRS 200.5099. In that block of statutes the age of 60 is the key age. We are conforming some miscellaneous statutes to the two primary pieces of legislation.

 

How many of the students would be in support of A.B. 73 if a criminal who committed one of these crimes would also be subjected to paying some of the cost of restitution for the offense they committed?

 

Chairman Amodei:

I think that is an excellent topic for you to bring up in a visit to the class. Is there any more testimony on A.B. 73?

 

Senator Nolan:

I read an article in the Las Vegas Review-Journal about a habitual offender who preyed on elderly women. The offender’s crimes over the last 10 years became increasingly more violent, not only with violent and sexual assaults associated with robbery, but finally resulting in the deaths of two women. When considering cost, we must ask what happens when people with that type of propensity offend and get away with it once, and then again and again, until they are stopped.

 

Chairman Amodei:

Seeing no further testimony, the hearing is closed on A.B. 73. The committee heard earlier testimony on A.B. 73, several amendments were offered, but the committee has not taken action on the bill pending the chance to review the import and impact of the amendments. We will take into account the testimony of all four speakers when we take action on A.B. 73.

 

The hearing is now reopened on A.B. 105.

 

ASSEMBLY BILL 105 (1st Reprint): Provides additional credits against sentence of parolee under certain circumstances. (BDR 16-550)

 

Annamarie Theuret, Student, Carson High School:

I am a sophomore at Carson High School. Currently, a felon who commits a crime and is sentenced to 5 years in prison can earn credits. The credits are what help the prisoner get out of prison earlier than the original sentence. Up to 20 days for each month of good behavior can be reduced from the total of a 5‑year sentence. After being in prison for so long, most felons are then placed on a parole program. This is to maintain discipline and lead the felon on the right track in order to be put back into society without the incentive to commit another crime.

 

While it is true A.B. 105 may save more money for the prison and parole division, it has hidden costs. If you think about it, letting felons reduce their parole time further may increase the risk to society. Assembly Bill 105 states, effective January 1, 2004, any felon put on parole may reduce his or her time up to 10 days for each month of good behavior under the limitations described. This could add up to as many as 4 months per year, or a third of the sentence. While it is true credits can be forfeited by violations of parole conditions, the early release incentive is strong. There are many risks if a felon is released prior to the end of his or her sentence. For instance, there are many felons who have committed more than just one crime. Who can say repeat offenders will be less of a problem to society just because they reduced their parole time?

 

Parole is used to keep the felon monitored, which means a felon must attend school or work, keep up regular drug testing, attend counseling, and follow any additional rules set by the State. If these things are not following during the entire parole time, the felon may never change. It is like being on time out. If children are allowed to get away with something once and not made to stay in time out for the duration, they will believe they can get out of it the next time, and the time after that. How can we, as a society, release felons earlier into our community without their spending the whole duration of owed time for the crimes they committed?

 

Taking the risks mentioned above leads to many additional costs, which includes the money spent returning felons to prison, the waste of time spent on unsuccessful parole, and the additional cost of crime investigation, apprehension, and court. I appreciate the time given me today listening to my arguments on A.B. 105. Thank you.

 

Chairman Amodei:

Is there any additional testimony on A.B. 105? Seeing none, the hearing on A.B. 105 is closed. Assembly Bill 105 was processed today as is. In earlier testimony we heard it is easier to earn good-time credits while incarcerated than on parole. Some offenders thought if they wanted to be released earlier, parole was something to be avoided because they did not have the ability to earn good-time credits the same as when they were incarcerated. Good-time credits are things earned in terms of education, having a job, things we want offenders to do to successfully reintegrate back into society.

 

Regarding the money arguments associated with A.B. 73, it is interesting to note that successful completion of parole means recidivism is down and the ultimate cost of processing inmates would also drop. Therefore, cost was a factor in terms of making parole more viable to encourage offenders to engage in conduct that earns good-time credits, which indicates how successful a person would be when off parole and reintegrating back into society.


The committee already took a motion to do pass A.B. 105 with no amendments, the motion was seconded, and carried unanimously. Therefore, A.B. 105 was passed out of committee and will go to the Senate Floor within the next 2 weeks.

 

It is a nice change and respite to see a fresh-faced bunch of young people hanging out in the building and we appreciate you including us in your plans.

 

There being no further business to come before the committee, the hearing is adjourned at 10:50 a.m.

 

 

RESPECTFULLY SUBMITTED:

 

 

 

                                                           

Barbara Moss,

Committee Secretary

 

 

APPROVED BY:

 

 

 

                                                                                         

Senator Mark E. Amodei, Chairman

 

 

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