MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
April 23, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:09 a.m., on Wednesday, April 23, 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 E. Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Terry Care
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Ann Bednarski, Committee Secretary
OTHERS PRESENT:
Kristin L. Erickson, Lobbyist, Chief Deputy District Attorney, Criminal Division, District Attorney, Washoe County, and Nevada District Attorney’s Association
Leon Aberasturi, District Attorney, Lyon County
Barbara Shell, Deputy District Attorney, Victim-Witness Unit, District Attorney, Clark County
R. Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association, Las Vegas
Chairman Amodei began by requesting testimony on Assembly Bill (A.B.) 95. He invited Mr. Aberasturi and Ms. Erickson to come forward.
ASSEMBLY BILL 95 (1st Reprint): Makes various changes to provision pertaining to authority and discretion of court to suspend sentence and grant probation in certain cases. (BDR 14-284)
Kristin L. Erickson, Lobbyist, Chief Deputy, District Attorney, Criminal Division, District Attorney, Washoe County, and Nevada District Attorneys’ Association, voiced support of A.B. 95 because she said it would give more discretion to district court judges and enable them to either sentence a person to prison or keep prison as a future leverage tool for sentencing at a later time. She said if a person was in drug court, the threat of a jail sentence became an incentive to successfully complete the drug program.
Leon Aberasturi, District Attorney, Lyon County, said A.B. 95 gave district court judges “a strong stick” to help guide people through the drug court program. He said like most programs, the problem was adequate funding for the drug program. Therefore, he explained, it was important the people who were in the drug court program were serious and wanted the help offered to them for their drug and alcohol problems. He said the courts had joined forces and planned to offer a regional drug court in western Nevada.
Mr. Aberasturi requested what he termed a minor language change to section 1, paragraph (b), lines 6 and 9, to permit the judge to weigh all defendants the same at the time of sentencing, rather than only being able to consider information that was current at the time the crime was committed. He explained occasionally a defendant began the process on a felony charge and between the time of arrest and time of sentencing other felony crimes were committed in the same or other judicial districts. He said without this change, the judge generally had to grant probation, essentially overlooking subsequent crimes.
Senator Care referred to subsection 3 of section 1, and asked what the difference was between “failing to successfully complete a program” and “failing to complete a program.” Mr. Aberasturi answered there was no difference. He said the drug courts varied a little in how they were conducted. Basically, the courts had counselors evaluate offenders and determine if they were good candidates for drug court. If so determined, the legal proceedings were postponed indefinitely and the drug court program was initiated. During that program if an offender failed drug tests regularly or did not find employment, the program issued weekend jail stays or increased counseling. If improvement continued to be lacking, the judge reserved the right to terminate the drug court program. At that point, the criminal process was reinstituted, Mr. Aberasturi said, and sentencing occurred at that time.
Mr. Aberasturi said decisions for drug court were influenced by perception. He said there were people who wanted to be there and get help, but there were others who “talked a good game” and caused problems for the serious participants. He said every 2 weeks in Lyon County, 10 to 25 drug court participants met and reported their progress to the judge. He said the participants were supportive of each other and a nonserious member was detrimental to the groups’ efforts.
Additionally, Mr. Aberasturi said, the drug court was costly for each applicant. He enumerated the screening and staffing for this program, plus the initial counseling, were substantial expenditures for the county. He added some offenders had figured out the judge would put them on probation without the drug court program.
SENATOR WIENER MOVED TO DO PASS A.B. 95.
SENATOR NOLAN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei opened the hearing on A.B. 336.
ASSEMBLY BILL 336 (1st Reprint): Revises provisions regarding notification of certain victims of crime if defendant is released before or during trial. (BDR 14-1186)
Barbara Shell, Deputy District Attorney, Director, Witness Services, District Attorney, Clark County, came forward and said the current provisions only allowed witnesses or victims to request notification when a defendant was released before or during trial, or if there was a written change in bail status. Ms. Shell requested the opportunity to use any electronic system of communication currently available or became available in the future, including computerized mail, to notify witnesses or crime victims of the change in status or the release of a defendant. Ms. Shell said this legislation moved Nevada into the electronic age and allowed for effective and efficient exercise of the right of victims to protect themselves. She said currently, everything had to be done in writing and added, if electronic communication was available, as it was in Washoe and Clark Counties, it should be legal to use it.
She then explained the Victim Information and Notification Everyday (VINE) system, and passed out an information pamphlet about it (Exhibit C). She said the records kept in the jail were in the system, and it was updated every 15 minutes, allowing a victim to check and learn of any changes. The system, she said, was two‑pronged; the first prong contained information on booking, bail, and court information, and the second prong was one of notification to learn of any changes in status. She said if a defendant were released, the system would alert victims to this specific change. The second prong required a personal identification number, she said. Ms. Shell described the VINE system as another way to provide protection to crime victims in the community. She said there was no cost to victims to utilize this system. She added currently when a defendant was released to a house-arrest status, there was no obligation to inform the victim. Assembly Bill 336 changed that as well, she said.
SENATOR NOLAN MOVED TO DO PASS A.B. 336.
SENATOR WIENER SECONDED THE MOTION.
Senator Care said he did not think this bill was legislative in nature. He said he could not believe someone would need to come to the Legislature to authorize this change.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman Amodei reopened the hearing on A.B. 107.
ASSEMBLY BILL 107 (1st Reprint): Provides additional penalty for committing certain crimes in violation of temporary or extended order for protection. (BDR 15-285)
Chairman Amodei announced Abbi Silver, Chief Deputy District Attorney, Special Victims Unit, Clark County, had provided information for the record (Exhibit D).
R. Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association, Las Vegas, said this bill was about protective orders. He said there were situations where temporary protective orders (TPOs) were in place and violations were misdemeanors. He said responders who had protective orders in effect knew there would be no consequences for violations, and they sometimes committed more felonious crimes. Mr. Graham said A.B. 107 enhanced the penalties for violating an order of protection.
Mr. Graham then referenced the written testimony of Ms. Silver (Exhibit D). He asked the committee to read it and said he would answer any questions on Ms. Silver’s behalf. He said, “If you commit a felony while under a restraining order, that becomes an additional crime.” Hopefully, he said, we could keep violators locked up to protect our citizens. This legislation informed the public of the consequences for violating a protective order in domestic issues.
Chairman Amodei asked Mr. Graham to relay to Ms. Silver her testimony had been read. Mr. Graham said Ms. Silver was currently in Washington, D.C., participating in an abuse task force on the national level and most likely was presenting this testimony before that group.
Senator Care asked if TPOs were in effect and the subjects of them attempted murder, did it mean they could be tried for attempted murder and then attempted murder again with an enhanced penalty. Mr. Graham answered he believed that was the intent of the legislation. Senator Care said the TPO was not really a deterrent and with an enhanced penalty, it did not seem to matter either.
Mr. Graham said it is not going to be perfect. But, in most cases before a TPO was issued or shortly thereafter, most respondents had already talked with an attorney or a counselor and they would be aware of additional penalties for violation of the order.
Senator Washington commented Ms. Silver’s testimony (Exhibit D) was very compelling. Mr. Graham said some officials wanted to put monitors on those with TPOs, which he said were designed to warn people who might be their victims. But, he said, even with monitors on and victims on the phone with 911, murders still occurred. Mr. Graham said, “Domestic violence is probably the worst situation we confront as citizens.”
Senator Washington said he thought the bill was a good one. However, he asked about instances in which a false TPO was issued in response to false information and the effect of rage created by untrue allegations. He said he attempted to introduce legislation last session to address the false affidavit to obtain a TPO. He said he had asked Mr. Graham what could be done about filing a false affidavit. Mr. Graham responded he had heard from a Senator about a man in Las Vegas who was improperly served with a false TPO. Mr. Graham said he had agreed to talk with the man who felt he was falsely accused and after that meeting no one heard from the man again. Mr. Graham said, “There are always two sides to every story. … It has to wind its way through the courts.”
Senator Care said he would feel more comfortable knowing if other jurisdictions had an enhanced penalty similar to A.B. 107. He said he was not taking the legislation lightly, but every session had “Jerry Springer”-types of crimes, and that too, he did not take lightly. He said there did not seem to be enough legislation on white collar crimes for people who lose their savings or were not physically beaten but hurt, nonetheless. And, he added, when we do bring legislation forward, the penalty was a class D or class C felony crime. Referring to A.B. 107, Senator Care asked if this bill was designed with some thoughtful deliberation or was this to “get the few” who violate TPOs. The response from Mr. Graham was the inquiry would be researched to learn which other jurisdictions had similar statutes.
Chairman Amodei said the committee could place a hold on the report, pending the receipt of information from other jurisdictions. He said Senator Care could refrain from voting today if the committee chose to make a motion. The chairman closed the hearing on A.B. 107.
SENATOR WASHINGTON MOVED TO DO PASS A. B. 107.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR CARE ABSTAINED FROM VOTING.)
*****
Senator Washington asked Mr. Graham about domestic violence cases, recalling that at one point discretion was taken away from judges. He also asked if judges continued to request some discretion concerning domestic violence. Mr. Graham replied while there was some sentiment among judges regarding a need for discretion to be available to the prosecutors and the judiciary, presently there was no appetite to pursue that issue. He said some jurisdictions were experiencing more problems with domestic violence cases than others. There occasionally was some difficulty in finding the means to prove a case. Mr. Graham said there might be a case or two where things were not as reported, but at the same time, there would be another 98 that were legitimate.
Chairman Amodei announced he would be posting next week’s agendas and there were 21 bills posted, with the objective being to have all Assembly bills heard by May 9. He mentioned the death penalty, civil rights, and terrorism as some of the more important legislation forthcoming.
Chairman Amodei adjourned the meeting at 8:40 a.m.
RESPECTFULLY SUBMITTED:
Ann Bednarski,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: