MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
April 25, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:00 a.m., on Friday, April 25, 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:
Assemblywoman Christina R. Giunchigliani, Assembly District No. 9
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Barbara Moss, Committee Secretary
OTHERS PRESENT:
Jacques Pelham, Legislative Intern, University of Nevada, Reno
David Fassler, M.D., Clinical Associate Professor, Department of Psychiatry, College of Medicine, University of Vermont
Michelle G. Carro, Ph.D.
Mary E. Berkheiser, Associate Professor of Law, Co-Director, Juvenile Justice Clinic, William S. Boyd School of Law, University of Nevada, Las Vegas
Mark Blaskey, Chief Deputy Public Defender, Public Defender, Clark County
V. Robert Payant, Lobbyist, Nevada Catholic Conference
Richard L. Siegel, Ph.D., Lobbyist, American Civil Liberties Union of Nevada
Nancy E. Hart, Deputy Attorney General, Office of the Attorney General
David Mowen
John L. Wagner, Lobbyist, Nevada Republican Assembly
Clark A. Peterson, Chief Deputy District Attorney, Capital Case Coordinator, District Attorney, Clark County
Michael Pescetta, Assistant Federal Public Defender, Federal Public Defender, 9th Circuit Court of Appeals
JoNell Thomas, Attorney
Chairman Amodei:
I will open the hearing on Assembly Bill (A.B.) 118.
ASSEMBLY BILL 118: Revises provisions regarding when sentence of death may be imposed. (BDR 14-856)
Assemblywoman Christina R. Giunchigliani, Assembly District No. 9:
I will read my written prepared testimony (Exhibit C). I would like to introduce my intern, Jacques Pelham, who will present his testimony.
Jacques Pelham, Legislative Intern, University of Nevada, Reno:
I will read my written prepared testimony (Exhibit D).
David Fassler, M.D., Clinical Associate Professor, Department of Psychiatry, College of Medicine, University of Vermont:
I am David Fassler, a child and adolescent psychiatrist from Burlington, Vermont. I am a clinical associate professor in the Department of Psychiatry at the University of Vermont, a trustee of the American Psychiatric Association, and a member of the board of the Federation of Families for Children’s Mental Health.
I will address some of the clinical and scientific issues relative to the question of juvenile death sentences. Twenty-eight states and the federal government do not allow execution of people under the age of 18 at the time of their offense. Assembly Bill 118 provides Nevada an important opportunity to join this growing consensus.
The American Academy of Child and Adolescent Psychiatry, representing 7000 child psychiatrists, and the American Psychiatric Association, representing approximately 40,000 psychiatric physicians, issued strong and unambiguous policy statements opposing juvenile death sentences. The statements appear in the document entitled, “Juvenile Death Penalty Background Materials,” (Exhibit E. Original is on file in the Research Library.) for your review. Neither organization has a policy pertaining to capital punishment in general, but have specific positions when the issue involves juvenile offenders.
From a clinical developmental standpoint, our objection is rooted in the fact adolescent brains function in fundamentally different ways than the brains of adults. This fact is frequently recognized in law when minimum ages for the exercise of certain rights, responsibilities, and independent judgments are established. Examples often cited include the right to vote, drive, sit on a jury, purchase alcohol, marry, make independent medical decisions, or enter military service. Adolescence is a turbulent time of life when young people are growing rapidly and maturing on multiple levels, which are not always well-synchronized. For example, we have observed 14-year-old boys suddenly growing to over 6 feet tall. They may tower over their parents, however, their ability to reason or make logical decisions is far from developed. Another example is the 15‑year‑old girl who is physically mature, but has the emotional reactions and impulse control of a much younger child. There are bright and usually responsible 16- and 17-year-old adolescents who will not think twice about getting into a car with a friend who has been drinking.
I will explain what is happening from a neurodevelopmental perspective, which means what physically goes on inside the brain of a 15-, 16-, or 17-year-old. Research studies indicate adolescence is a very active time of growth and development at the physical level of the brain. This is new information since I was in medical school. I was taught the brain was more or less finished developing by the time a person reached 3 or 4 years old. Currently, the understanding is there is rapid increase of interconnections between the brain cells throughout adolescence. There is also growth of the gray matter of the brain, followed by refinement of the connections and pathways, which is the pruning, or cutting back, of these brain connections.
It is important to understand the primitive or instinctual part of the brain, the inner part, develops first, followed by parts of the brain that control reasoning, which are the outer parts. Those are the parts of the brain that help us think before we act. Therefore, in terms of actual brain anatomy, we are talking about the amygdala, which is the more primitive part of the brain responsible for gut reactions, including fear and aggressive behavior, versus areas like the frontal cortex, which develop later and help control our emotions and modify our actions and responses.
There is a picture on page 9 of the background materials (Exhibit E) showing the amygdala deep inside the middle of the brain, which is related to the more primitive structures, whereas the more adult-reasoning parts of the brain are in the frontal cortex at the front of the brain.
Dr. Fassler:
Research using functional magnetic resonance imaging (MRI), which is a kind of computerized X-ray, clearly demonstrates adolescents use their brains differently than adults for reasoning or solving problems. For example, adolescents tend to rely on these more instinctual structures, like the amygdala, and less on the more advanced areas, like the frontal lobes, which are associated with goal-oriented and rational thinking. I included some additional information about brain structures and references to that specific research in the background materials (Exhibit F. Original is on file in the Research Library.).
The brain imaging center at Harvard University showed adolescents and adults a picture of a person looking surprised. Adolescents interpreted the person as threatened and used the older amygdala part of their brain, which lit up on MRI scans, whereas the adults correctly interpreted the person as surprised, using their frontal lobes.
Research also identified at least two other areas of the brain that undergo significant growth and development during adolescence. One is the corpus callosum, which connects the two halves of the brain, which means there are two hemispheres connected by a band of tissue. The other is the cerebellum located at the base of the brain. The corpus callosum facilitates problem solving because it is the pathway of information from one side of the brain to the other. The cerebellum, at the back of the brain, controls physical coordination and movement and helps organize our thought processes. All these anatomical structures, the amygdala, the frontal lobes, the corpus callosum, and the cerebellum, are physically changing and maturing throughout adolescence.
The work of Dorothy Otnow Lewis, New York University, notes a high percentage of juveniles who commit violent crimes have significant signs and symptoms of brain damage. Many were physically abused or otherwise exposed to violence. A significant number were also exposed to alcohol, cocaine, and other toxins, even before birth. Such exposure has a direct impact on the structure and functioning of a child’s brain. I do not suggest these developmental issues or physical abnormalities excuse violent criminal activity, however, the information is relevant and helpful to understand the impact of biology on behavior and cognitive functioning.
In the area of juvenile justice, there has been a long-held belief that children and adolescents who commit crimes, even heinous, serious, and violent crimes, require a different response than adults who commit comparable offenses. The juvenile justice and child guidance movements were built on the belief children and adolescents are more malleable and more likely to respond to intervention than adults. Their behavior patterns, as well as cognitive and neurological development, are not yet finalized. Although adolescents may appear grownup, in reality, they are not yet adults. Society recognizes this fact which has resulted in the establishment of separate laws, courts, and programs for juveniles who commit crimes.
In summary, from a scientific standpoint, it is quite clear adolescents are biologically and developmentally different than adults. There are a number of specific differences in terms of neuroanatomy and brain functioning. As a result, adolescents think and reason in different ways and are more likely to act on impulse without considering the consequences of their actions, and are generally receptive and responsive to intervention and rehabilitation.
You have an important and historic opportunity. Your debate is being followed by many states across the country. You have the opportunity to make a statement that the citizens of Nevada will not execute people for crimes committed as adolescents. It is a complex and controversial topic and I urge you to put emotion aside and study the scientific research on the issue. I think you will decide to recognize adolescents are not the same as adults and it is time Nevada joined the growing list of states that have acknowledged this fact and passed legislation banning executions for crimes committed by juveniles.
Senator Nolan:
Have you worked with adolescents who committed murder?
Dr. Fassler:
During my training in Boston, Massachusetts, I worked with adolescents who committed violent and heinous crimes, including murder.
Senator Nolan:
How did the adolescents respond to incarceration?
Dr. Fassler:
I have seen adolescents who committed violent crimes and responded to treatment, were ultimately released in a cautious and careful manner, and did not have recurrences. I have seen other adolescents who did not do well in either the juvenile or adult correctional systems. Most adolescent offenders have significant psychiatric histories and neurological deficits. They generally do not receive treatment in the adult correctional system, but are more likely to receive treatment for their problems in the juvenile correctional system.
Senator Nolan:
Is it fair to say adolescents are less likely to be reformed or rehabilitated in the adult correctional system?
Dr. Fassler:
It depends on the adult correctional system. If it is a system that focuses upon maintaining safety, but does not have much of a rehabilitation program, the adolescents are not likely to be rehabilitated. If it is a system with mental health services and other kinds of counseling, it is possible for them to be rehabilitated.
Senator Nolan:
I think it is fair to say all adolescents reach a level of maturity and develop at different times and it is difficult to decide a cutoff age. There are times adolescents act on impulse and do not understand the consequences of their behavior. Adolescent violent behavior may include a past of abuse and mental illness. On the other hand, what about adolescents who premeditate murder, have no history of mental illness, appear rational in their thinking and psychological assessment, pass the battery of tests, and fully understand the consequences of their actions? How do we respond to the 16-year-old who premeditates and executes a murder while fully understanding the consequences, and, in every aspect, appears to be an adult?
Dr. Fassler:
You are correct that adolescents do not all mature at the same rate. Research and scientific evidence demonstrates by the age of 18, a majority, but not all people have developed these types of brain structures. There are other personality issues, such as individuals with a desire to commit evil acts not motivated by these kinds of issues. I am not saying adolescents do not realize the consequences of their actions, I am saying at a specific point in time, they are less likely to be able to stop themselves and more likely to act on impulse. Even in adolescents who premeditate crime, there are still significant anatomical and neurological differences that bring them to that point.
Senator Nolan:
Should the death penalty remain intact in Nevada, would it be more objective and fair to base the assessment of an individual on a battery of tests? In regard to mental retardation, a bill was passed out of committee yesterday establishing objective testing to determine mental competency. Is it fairer to assess an individual based upon objective testing, or an arbitrary age limit?
Dr. Fassler:
It should be a combination. Should I have a car accident and damage my frontal lobes while driving home from the airport today, I would not be eligible for the death sentence in Nevada. However, if I am an adolescent with functionally damaged frontal lobes, I would have the same neurological cognitive impairment, but would not be treated in the same manner. I suggest, from a neurodevelopmental viewpoint, adolescents are not dissimilar from mentally retarded adults. There are better testing capacities for mental retardation, but they are not exact. In a courtroom setting, experts may give differing opinions regarding an individual’s cognitive capacity and argue whether or not an intelligence quotient (IQ) of 69 or 73 should be the cutoff limit. I believe there should be some cutoffs and currently it is 16 years of age. In my opinion, for the majority of adolescents, 16 years of age is the wrong place to draw the line. Since the line should be drawn somewhere, scientific evidence supports moving the age to 18.
Senator Care:
What is the point of administering the death penalty to a person who does not have full maturation of the brain? Is it easy to detect someone who committed an act of murder has not reached full maturation of neurological development? Looking at it from that point of view, the issue is not age specific. It seems to me a defense counsel would want to raise that issue as a mitigating circumstance.
Dr. Fassler:
It is not easy to determine whether an individual has reached full maturation of neurological development, which has been demonstrated by research done on large groups of individuals. If the cutoff is left at 16 years of age, a majority of people in the 16- to 18-year age range, based on scientific information, would not have reached that point of maturation. There would be a debate at trial with uncertainty of who the experts are and what information is being presented. There is no individual, specific test, nor can a functional MRI be used to provide an exact answer. It may happen in the future, but it is not there at the present time.
Current available science suggests the majority of individuals in the 16- to 18‑year age range have not reached this level of maturation, and while they understand the consequences, cannot prevent themselves from acting. From a neuroanatomical point of view, a gun in the hand of a 16- or 17-year-old who feels threatened has more likelihood of being fired than in the hands of an adult in the same position. It is not an excuse; it does not make it right. It does not mean the adolescent should not be punished, but adolescents are not adults and their brains do not function as adults. It is risky to leave the decision and determination to each individual court and jury, who would not have access to equal information on the issue. There is no specific evaluation or analysis, nor is there one as good as that used in the issue of mental retardation.
Senator Care:
Let us supposed the life of a 17-year-old is spared and 10 years later he or she is in prison for life. At this point, the issue is not whether the person can control himself or herself, the issue is whether the individual will spend 50 or 60 years behind bars. Would the person still understand whether or not his or her crime was wrong?
Dr. Fassler:
As adults, many offenders do not understand why they committed the crimes: they thought they were being attacked, or were in fear of being shot, even though circumstances demonstrated no intent. Biologically, they are more likely to perceive the situations as threatening. As their brains mature, they understand retrospectively they wrongly perceived the threat and the resulting act was wrong.
Senator Care:
In that case, the 27-year-old would no longer be confined because he or she is a threat to public safety, but incarcerated as a penalty for the act he or she committed 10 years earlier.
Dr. Fassler:
I agree.
Senator Nolan:
Law enforcement points out all adult criminals say they felt threatened before committing a crime. You indicate the majority of adolescents between the ages of 16 and 18 years have not developed sufficient maturation of the brain to give them the ability to respond well to difficult situations. If less than 1 percent of the population in that age group never commits violent crime, how can you say a majority of them do not have the ability to cognitively function in these types of situations?
Dr. Fassler:
Every adolescent does impulsive and stupid things that do not make sense, however, the issue of whether or not they are violent is a different question and is mediated by many factors, including prior exposure to violence, and history of abuse. The Dorothy Otnow Lewis literature said 12 of the 14 juvenile defendants currently on death row have a history of abuse, and almost all had a history of brain damage, brain injury, and substance abuse. Some interesting new research on adolescents indicates substance abuse plays into it. When adolescents drink alcohol, they do not become tired in the same way as adults, but it impairs their cognitive abilities and functioning. Therefore, they can drink more than many adults and become cognitively impaired, but still appear to be functioning all right. I am referring to adolescents who may have a tendency to act in a violent way because of prior exposure, history of violence, brain injury, and exposure to alcohol or other substances, in a situation where they act impulsively. I would say all adolescents act impulsively, but not all are violent. I am talking about the combination of an adolescent with both problems.
Senator Nolan:
You referenced objective data identifying some predetermining factors which might help us, and could also be used by defense attorneys as mitigating circumstances.
Dr. Fassler:
There is a great deal of data on the incidence of brain injury and damage in adolescents incarcerated for violent offenses. I will obtain the literature for you.
Senator McGinness:
Mr. Pelham, you said studies and polls undeniably show the juvenile death penalty is unacceptable to the people of the United States. Have you further information on polls that you would provide to the committee? I am particularly interested in Nevada polls.
Mr. Pelham:
Unfortunately we have not found anything and, to our knowledge, there has been no such study.
Senator Care:
In Nevada, how many juveniles under 18 years of age have received the death penalty, and how many have been executed?
Assemblywoman Giunchigliani:
There is one person on death row who would be impacted by this legislation, which is the reason A.B. 118 would mandate life without possibility of parole. I believe there were three juveniles on death row and two have been executed. The whole point of A.B. 118 is, over the years, an arbitrary age chosen for juvenile cuts off many things, such as voting, marrying, and so forth. Finally in the last 5 years, science has proven we were probably correct in choosing age 18 as the cut-off age. For purposes of execution, we suggest a cut-off age of 18 years and err on the side of science as to the maturity level.
In my teaching experience with hormone-enraged middle school juveniles, I have observed kids acting extremely stupid and wondered what they were thinking. Their ability to reason and act has not matured. We are not asking to enter the debate on whether or not to have capital punishment in the State of Nevada. When I offered this legislation in the last Legislative Session, I realized people must have time to think carefully about the issue. I was shocked when the bill passed unanimously in the Assembly Committee on Judiciary. Due to the fact the case was made based upon science affirmed that 18 years of age provided a comfort level and was the best age to choose the punishment.
Chairman Amodei:
How does the certification process work in Nevada in the context of making a person death penalty-eligible? In other words, should a person commit a crime at the age of 16 or 17, must he or she be certified up to be tried as an adult? Would that take any of the issues under discussion into account? Assembly Bill 15, heard yesterday, referenced a process to confirm a person meets certain criteria to be excused from this potential punishment. Testimony today indicated meaningful testing is not available to subject a person in the window of 24 months to the same sort of process. Have you information on that issue?
ASSEMBLY BILL 15: Prohibits sentence of death for person who is mentally retarded. (BDR 14-199)
Assemblywoman Giunchigliani:
We have no information on that issue other than the types of mitigating circumstances mentioned by Dr. Fassler in response to Senator Nolan’s question. An attorney could make a case if there was physical or mental abuse. Unfortunately, there is no screening at this point to assist in that situation.
Michelle G. Carro, Ph.D.:
I will read my written prepared testimony (Exhibit G).
Mary E. Berkheiser, Associate Professor of Law, Co-Director, Juvenile Justice Clinic, William S. Boyd School of Law, University of Nevada, Las Vegas:
I will read my prepared written testimony (Exhibit H).
Mark Blaskey, Chief Deputy Public Defender, Public Defender, Clark County:
I have been asked to speak about international and domestic practices regarding the juvenile death penalty. We can begin by asking why international law would matter in regard to this issue. On news stations, anyone speaking from the State Department, White House, or Department of Defense, invokes international law when discussing United States policies in Iraq and other areas of the world. International law is very important.
Worldwide practice regarding the juvenile death penalty indicates in the past 12 years, only seven countries, including the United States, have executed a juvenile offender. The United States executed more than the other six countries combined. In the year 2000, only three countries executed juveniles: the Democratic Republic of the Congo, Iran, and the United States. Iran has spent the last 2 years before the United Nations denouncing the practice, stating they no longer execute juvenile offenders. No country, other than the United States, has executed a juvenile offender since 2000.
The United States entered into two treaties which specifically prohibit the execution of juvenile offenders. The International Covenant on Civil and Political Rights,adopted and opened for signature, ratification, and accession by the United Nations General Assembly in resolution 2200A (XXI) of December 16, 1966. It entered into force March 23, 1976, in accordance with Article 49, ratified in 1992, which states we will not execute juvenile offenders, and 145 countries have ratified this treaty as well. The Convention on the Rights of the Child, adopted and opened for signature, ratification, and accession by the General Assembly resolution 44/25 of November 20, 1989, entered into force September 2, 1990, in accordance with Article 49, has been signed by the United States, but is not yet ratified. Every country in the world, with the exception of the United States, ratified this convention. The convention states we shall not execute juvenile offenders.
The United States is currently under tremendous scrutiny from European countries because of the death penalty practice and execution of 16- and 17‑year-old offenders. Although not a juvenile case, Germany is currently suing the United States in the European World Court because of its violation of a prior treaty regarding the Vienna Convention on Consular Relations, which was a death penalty case.
Nevada needs to consider the monetary consequences of its current laws permitting execution of juveniles under the age of 18. After the terrorist acts of September 11, 2001, virtually every country stood behind the United States and was sympathetic. However, almost unanimously across the world, the United States was told should any of the terrorists be caught, they would not be extradited to the United States if the death penalty was sought against them. This demonstrates how severely other countries view this issue. European tourists visit Las Vegas and Reno and the day may come when tourism could be impacted by Nevada’s stance on the juvenile death penalty.
Domestically, since 1976, only seven states have executed juvenile offenders. In the last 3 years, only three states have done so: Texas, Oklahoma, and Virginia. Since the death penalty was reinstated, no state west of Texas has executed a juvenile offender. In fact, there are only two states west of Texas with juvenile offenders on death row: Arizona and Nevada. Arizona’s last juvenile execution was in 1934, and currently, Nevada has only one member on death row who was a juvenile at the time of offense. The last time Nevada executed a juvenile offender was 1949.
Mr. Blaskey:
The trend, worldwide and within the United States, is to move away from executing 16- and 17-year-olds. Currently, in the 50 United States, plus the federal government, a 16-year-old offender can receive the death penalty in only 17 states, including Nevada, which easily puts Nevada in the minority. No state has ever lowered its death penalty age limit down to 16 or 17. In contrast, recently five legislatures and one state supreme court raised the age limits for the death penalty.
Life without the possibility of parole in Nevada means exactly that, people cannot get out of prison. Their sentences cannot be commuted, not by the pardons board or the Governor. People who receive the sentence of life without the possibility of parole cannot get out of prison, and it would appear to be adequate punishment for a juvenile offender.
In opposition to A.B. 118, you will hear testimony regarding Michael Domingues, the sole juvenile offender on Nevada’s death row. We concede the facts of his case are not pretty. Of course, that is why he received a first-degree murder sentence and is spending the rest of his life in prison and, hopefully, will not receive the death penalty. In an opinion from the Inter‑American Court of Human Rights, Domingues v. Nevada, it was ruled Mr. Domingues’ execution would be a violation of international law and the United States Government was ordered to do everything within its power to prevent the execution.
The best illustration of why juveniles are treated differently than others is the sale of cigarettes. One cannot walk into a convenience store, gas station, or supermarket, without seeing a sign saying, “We will not sell cigarettes to juveniles.” Why is it we will not sell cigarettes to a 17-year-old? Can a 17‑year‑old walk into an establishment with his or her report card and say, “I am a straight A student, I know what I am doing, I know the consequences of smoking a cigarette, so sell me a pack of cigarettes?” This Legislature determined juveniles do not think appropriately at that age and we must protect them. The same rationale is apprized to executing a juvenile offender. I strongly urge you to pass A.B. 118.
Regarding certification of juveniles from juvenile court, there is no certification in murder cases. If a 10-year-old brings a gun to school or plays with his or her father’s gun and shoots a friend, should the State of Nevada determine the child will be charged with murder, the child would be arrested as an adult, housed in an adult jail, and tried as an adult without ever seeing juvenile court. A child does not see juvenile court when charged with murder. There is no certification hearing and all the mental aspects discussed by the doctors today are not presented to a juvenile judge.
V. Robert Payant, Lobbyist, Nevada Catholic Conference:
I will submit my prepared written testimony (Exhibit I). I represent the Religious Alliance in Nevada, composed of five of the major religions in Nevada. The churches I represent are opposed to the death penalty. I do not want to mislead you that we are only interested in the juvenile death penalty, although that is what we will speak to today. There are a number of other religious bodies in Nevada also opposing the death penalty: the American Baptist Churches in the USA, the American Jewish Committee, the Christian Church, the Disciples of Christ, the Mennonite Churches, the Orthodox Church in America, and so forth. Thirty-two national organizations oppose the death penalty and urge its abolition.
Churches take the position there should be long-studied rules that life is precious. Although we are well aware of heinous crimes sometimes committed by juveniles, the idea their lives are precious is the basis of opposition to the death penalty, specifically.
Maturity develops at different ages, as proven by scientific and psychological evidence. Adults and parents know people come to maturity at different ages. As members of the Legislature, your job is to arbitrarily establish certain age limits for various activities. We do not allow people to drink until 21 years of age. We arbitrarily decided 21 years is the age of maturity in Nevada for that purpose. We do not allow people to marry without parental consent until they are 18 years of age. We decided people are not mature enough to make such a decision on their own if they are 16 or 17 years of age. We do not permit people to engage in civil contracts or hire a lawyer if they are under 18 years of age. We prohibit people under the age of 18 from purchasing cigarettes because we do not think them mature enough to make good judgments in regard to it. Finally, we do not even allow people to attend most movies until they are at least 17 years of age or accompanied by a mature adult.
You and your predecessors made appropriate arbitrary decisions regarding the age of maturity, yet still require 16- or 17-year-olds to face the awesome power of our government in regard to the death penalty. We urge you to support A.B. 118. We think it is good legislation and should be adopted.
Richard L. Siegel, Ph.D., Lobbyist, American Civil Liberties Union of Nevada:
I submitted public opinion polls on the death penalty for 16- and 17-year-old juveniles (Exhibit J). The general fall in public support for the death penalty has been evident, most particularly in terms of mental retardation, mental illness, and juveniles. Although people are aware of heinous crimes committed by juveniles, a Gallup Poll of May 2002 showed almost three to one against the execution of juveniles. Six states have had similar polls. An Arizona poll showed 37 percent in favor of juvenile executions, with 42 percent opposed. Other state polls have been in the two-to-one range. The most recent poll in Oklahoma was close to Kentucky results, in which only 15.5 percent indicated the most appropriate punishment for 16- and 17-year-olds was death, which left 84.5 percent with other responses, down to 20- to 50-year sentences. It is interesting that death was actually almost tied for the lowest of the five options given.
In answer to Senator McGinness’ question regarding polls in Nevada, there are no polls in Nevada. The University of Nevada ceased doing this kind of polling about 4 years ago due to lack of money. However, there is every reason to believe Nevada would be consistent with a state like Kentucky. Harris County, Texas, the No. 1 death penalty-executing county in the United States, with more executions than all but about three states, has only 25 percent support for the death penalty for juveniles. Kentucky was a slave state, is very conservative, and has remarkable numbers opposing the death penalty for juveniles. As such, I presume the numbers in Nevada would not be outside the range of only 20 to 35 percent support for executing 16- and 17‑year-old juveniles. As a professional political scientist, I would anticipate the numbers coming from other figures, and I think the later polls are taken, the less support there would be.
Nancy E. Hart, Deputy Attorney General, Office of the Attorney General:
I represent the Nevada Coalition Against the Death Penalty, as well as Amnesty International in Nevada. I am testifying as a private citizen and not as a deputy attorney general. Both organizations strongly support A.B. 118. I testified yesterday in general support of the bills brought out of the interim Subcommittee to Study the Death Penalty and Related DNA Testing. I point out one of the issues studied by the subcommittee was the execution of juveniles which had considerable support, but ultimately lacked one vote among the subcommittee members.
For all the valid reasons heard this morning, we believe the time is right to end execution of teenagers in our State. As with other death penalty-related bills, A.B. 118 is fundamentally a question of fairness. It is about recognizing and respecting human rights and a question of ensuring we indeed reserve the ultimate penalty for the most culpable and the worst of the worst of our criminals. We urge you to pass this legislation; we strongly support it and hope you will act promptly on it.
David Mowen:
I agree with most of the testimony this morning. My son and three of his friends were murdered August 14, 1998. In most situations we do not want our 16- or 17-year-old youths to be put to death. I request we keep the option available for the worst of the worst. Individuals like John Lee Malvo, on the East Coast, or the local situation in which a young man was kidnapped from school, taken for a ride, and shot four or five times. The perpetrator then shot a law enforcement officer and carjacked a vehicle before being captured. I would like to see the State of Nevada keep options available for the worst of the worst. I do not know how many of you have participated in a trial. I have been through four trials so far, and a fifth is coming up in September. Unfortunately, I will probably be doing this for the rest of my life.
I am here to fight and protect you because I do not want to see anyone else experience my nightmare, or the nightmares experienced by families of murder victims every day of their lives. It is incredibly challenging. There could probably be a few hundred people here to testify, but unfortunately, their lives, like mine, have been shattered and destroyed and it is difficult for them to do anything.
Once again, please keep the option available for the worst of the worst. We still have the facts of the mitigators and the aggravators. Let us put the decisions in the hands of 12 jurors in certain situations.
John L. Wagner, Lobbyist, Nevada Republican Assembly:
I am opposed to A.B. 118. Although I have gray hair and am probably older than most people in the room, I can still remember when I was 16 and 17 years old. When gasoline cost 20 cents a gallon, my friends and I went out on Friday nights and visited the “midnight gasoline supply company.” We knew it was wrong. However, we also knew if we got caught, we did not have to worry about paying a penalty if we were 18 years of age or under. We knew right from wrong at a very young age.
I read in the Nevada Appeal this morning that a 12-year-old boy raped a woman jogger in California. I wonder what will be done with him? He will probably be read the riot act and set loose to do it again in a couple of years. Many times gangs will have younger members commit crimes. They know they are under the age of 18 and penalties will be a lot less if they are caught.
Governors can pardon those who are sentenced to life without possibility of parole, therefore, offenders can be released from prison. Polls indicate many people are against executing juveniles, therefore, the likelihood of any of them being sentenced to death is very minimal. The threat of the death penalty is a deterrent. I do not know how many would actually be put to death at ages 16 to 18, but I think it would be very few. I do not believe this legislative body should react on the thinking of Europeans. The Europeans did not think the United States should be in Iraq, but we got there in about 3 weeks when so‑called experts said it would take months. Most of the experts were on television, had Ph.D.s after their names, were professors at universities, and said it would be a long, dragged-out war, and we all know what happened. Therefore, experts can be wrong.
I urge you to retain the death penalty as a threat. People understand threats even at the age of 16. If I do something wrong, I can get in real trouble if tried as an adult. I think it is important not to pass A.B. 118.
Senator Care:
Could the Legislature alter the statute in 10 years whereby a person sentenced today with life in prison without possibility of parole could eventually be paroled or pardoned?
Bradley Wilkinson, Committee Counsel:
There is a constitutional amendment prohibiting it.
Senator Care:
Therefore, if we say life without possibility of parole and the statute is changed, it would only apply to future adjudications and not a current sentence.
Mr. Wilkinson:
Yes, that is correct.
Clark A. Peterson, Chief Deputy District Attorney, Capital Case Coordinator, District Attorney, Clark County:
I am the capital case coordinator for the Clark County district attorney’s office. Following up on Senator Care’s question, the retroactivity of a change in that particular statute is an interesting issue. At the present time, life without possibility of parole means that, however, the question still remains whether or not the Governor has the absolute pardon power through the pardons board to change it. Regardless of answering that question, if the Legislature changed the statute that life without possibility of parole did not mean life without possibility of parole anymore, we have the pardons board procedure in which an inmate could make application to the pardons board, even though theoretically there would not be legal retroactivity of the statute. The issue is open to debate. In my opinion, the pardons board could, at that point, view the application and consider pardoning the individual. Therefore, there is the sentence and also the powers of the pardons board. The sentence is one question; the power of the pardons board is another question.
In regard to the age range of 18 and the execution of juveniles, this committee must decide between two things. Do we make a general rule that sweeps everyone in its ambit, or do we allow the death penalty determination to be considered case-by-case? If asked whether I believe the death penalty should be applied to juveniles in general, I would answer, no. The death penalty, in general, is not occurring cross the country. In fact, putting juveniles on death row is an extraordinarily rare event. Currently, from the end of 2001, there are 3600 death row inmates across the United States, 77 are juveniles.
In Nevada, I believe a case-by-case determination works and is appropriate. In the modern death penalty era, Nevada has had two juveniles on death row. Michael Domingues, who was 17 years old at the time of his crime, and Robert Paul Servin, who was 16 years of age when he committed his crime. Before I talk about their specific crimes, I want to talk about something very important. We heard testimony this morning about the mental states of juveniles, their diminished capacity, and their inability to make appropriate judgments. That type of evidence is admissible during the penalty phase of the trial. Juvenile defendants are automatically certified up to adult court to face murder charges, but it does not make them eligible for capital punishment. They are not death penalty-eligible unless the office of the district attorney determines a notice and intent to seek the death penalty should be filed in the case. A committee determines eligibility, and I sit on that committee. Obviously, we take things like the age of the defendant into account and it is done on a case-by-case basis. Eventually, when the case goes to trial, if it is a death penalty case involving a juvenile, the jury hears all the evidence heard this morning. Previously, the doctor in Clark County testified it works, and Shawn Maxie did not receive the death penalty after the jurors heard the particular information. In fact, the two persons on death row did not fall within the types of individuals who raise problems, those who act impulsively or in groups.
Michael Domingues, for example, planned the murder of a neighbor 2 weeks prior to the crime. He obtained a device to strangle the woman, obtained a gun, and committed the crime alone. He lay in wait for her, brought she and her child into the house at gunpoint, strangled her, bound her up, and put her in a bathtub filled with water. The opponents of executing juveniles use the word “child,” but the true child in this situation was the child Michael Domingues ordered to undress, get in the bathtub with his strangled mother, and handed him a blow dryer in order to electrocute him. When the child was not killed by electrocution, Michael Domingues stabbed him multiple times with a kitchen knife until he was dead. After the fact, Mr. Domingues was savvy enough to lie to the police and do a number of other things. The question is, should we allow the death penalty for case-by-case situations when applicable?
Mr. Peterson:
Robert Paul Servin was 16 years old when he was sentenced to death, however, the Nevada Supreme Court overturned the sentence. Mr. Servin and two other juveniles, 17 and 19 years old, planned to rob a woman in a wheelchair. Mr. Servin, with a handgun, and one of the other juveniles, with a shotgun, broke into her home and found the woman in a wheelchair in her bedroom, whereupon Mr. Servin hit her across the head. We heard testimony juveniles should not be punished in situations wherein they react when threatened. Mr. Servin and confederates were armed and the woman was in a wheelchair in her bedroom. The situation was not one in which the juveniles could claim to have been threatened in any way. In addition, Mr. Servin struck the woman in the head while she was wheelchair-bound. The juveniles then took the woman to bed and, while there is dispute as to the identity of the shooter, two shots were administered to her leg and body. Still alive, but incapable of resisting, two execution-style contact wounds were made directly to her head.
It cannot be said these juveniles acted because they were threatened. However, in reviewing the case, the Nevada Supreme Court said the young man was only 16 years old, his criminal record was not extensive, and extensive evidence was heard in the mitigation phase. For those reasons, Mr. Servin’s death penalty was overturned and he is in prison without possibility of parole.
I spoke to the committee yesterday regarding what I consider safety valves and protections. In the State of Nevada, I believe the discretion of the prosecutors is appropriate. Juries are not sending juveniles to death row in massive numbers. In the modern era it happened twice. The Nevada Supreme Court has performed an appropriate review function and the only person left on death row is Michael Domingues. Because he acted alone and due to the specific facts of his crime, it was the opinion of the Clark County district attorney’s office, the death penalty was an appropriate tool to leave in the hands of the jury. No one wants to execute juveniles. It is a horrible thing to contemplate, both for us and this body, as well as the jurors making the decision. Nevertheless, the question remains, should we allow the ultimate punishment to be an option for the jury in a case that warrants it?
Zane Floyd killed four people in an Albertson’s store. If Mr. Floyd had been 17 years old, would we say the ultimate penalty should not apply to him? In the case of Mr. Malvo, the 17-year-old juvenile in the Washington, D.C., sniper case, although I do not want to prejudge a case, it is alleged he did not just aid and abet, but actually pulled the trigger in a number of the killings. Should a jury have the ability to consider the ultimate punishment in that case? It is a question the committee must decide. Will we make a broad-based application that sweeps in its ambit every juvenile, or will we trust the jury system which evidence has proven works. Will we trust the jury system and allow the jury to decide the ultimate penalty when it is truly appropriate. So far, in Nevada, in the modern death penalty era, it is one time.
Senator Care:
Would the jury be impacted if we change the law?
Mr. Peterson:
You raise an interesting question. Currently, the jury is instructed about the range of punishments and we do not wait until the end of the procedure to instruct them. In a capital case, punishment instruction begins in the jury selection phase, voir dire.
Senator Care:
Does the age of the defendant come up in voir dire?
Mr. Peterson:
In a capital case, we are allowed to do what is called death-qualified jury, meaning we can investigate, both the defense and the State, as to the feelings of the perspective jurors regarding the death penalty. For example, if the law said and it was appropriately proven, that a juvenile could be subject to the death penalty, and the juror said he or she could never consider it, that person would not be an appropriate juror. Therefore, we could question that person’s selection.
However, should the law be changed, I believe it would be like any other murder case. It would no longer be a capital murder case, meaning we would not be allowed to talk about punishment during the jury selection process or the guilt determination. In fact, the jury is specifically instructed during the guilt determination, and the instruction almost verbatim is: “You are not here to consider the issue of sentencing, which is left solely to the discretion of the court, nor are you to consider the guilt or innocence of other persons involved.” That is the instruction given and there would be no discussion of it ahead of time.
Senator Care:
How many times in the last 5 years has the district attorney’s office sought, but did not get, the death penalty for a person under 18 years of age?
Mr. Peterson:
It was sought a number of times. There was Kenshawn Maxey and Giles Manley; Vornelius Phillips is currently in the litigation phase, and I, personally, handled Robert Terrance Walker. Those cases negotiated because the ages of the offenders were taken into account, which was a large factor, both for the district attorney’s office and the juries. Obviously, the only person charged who successfully received the death penalty was Michael Domingues, other than Robert Paul Servin, a northern Nevada case.
I used poor wording when I said “successfully received the death penalty,” I should have said “the death penalty was returned by the jury.” Particularly in juvenile cases, the position of the district attorney’s office is a first-degree murder conviction. The sentence reflects the conscience of the community through the jury. There are times when I feel it is appropriate. For example, the Zane Floyd and Donte Johnson multiple murders cases. Statistics of the death penalty indicate major correlative factors are prior violent convictions or multiple murder victims are the reasons people receive the death penalty.
Insofar as the question of how many times the death penalty has been sought, the jury has never returned a sentence of death except in the Eighth Judicial District Court, which was Michael Domingues, in the modern, death penalty era.
Senator Care:
I phrased the question improperly; I should have asked when you have gone to trial. Under current law, mitigating circumstances argued by defense counsel include youth and any other mitigating circumstance. I wonder whether at that point the jury departs from what is sought?
Mr. Peterson:
The penalty process is: the prosecution puts on the evidence; the defense rebuts and calls in medical experts such as were heard this morning; and the jury hears testimony regarding the decision-making capability of juveniles, their brain development, and a panoply of matters including age, family history, whether the juvenile offender knew his or her mother, whether he or she was abused, all factors come out. The death penalty was imposed in the Michael Domingues case because the prosecutor was able to show, while those things are true in general, the facts in this specific case showed otherwise. That, to me, is very important.
We consider juveniles act impulsively, but Mr. Domingues planned the crime for 2 weeks. We consider juveniles are subject to peer pressure, but Mr. Domingues acted alone. We consider he may be generally impaired as a juvenile, but Mr. Domingues was savvy enough to lie and commit “a,” “b,” “c,” and “d” crimes. The crime was truly a worst-of-the-worst type killing, particularly given his attempt to electrocute the young child, and failing that, stabbing him to death. The facts overrode the general testimony. Other than the case of Mr. Servin, it is the only time a jury returned a verdict of death involving a juvenile in Nevada since 1973, which followed the overturning of the death penalty by the United States Supreme Court and modern statutes enacted since that time.
Chairman Amodei:
Is the process by which you described the penalty phase brought about by custom or is it pursuant to specific statute in Nevada? Please describe the authority for what is germane and what is available in terms of the penalty phase in a juvenile-facing-capital-punishment context.
Mr. Peterson:
There is a statute that governs the penalty phase, and we are guided by constitutional and Nevada Supreme Court precedent to tell us what is, and what is not, admissible. Essentially, in the penalty phase, the State has to prove the existence of aggravating circumstances beyond a reasonable doubt and prove they outweigh any mitigating circumstances. The State must do that beyond a reasonable doubt and with unanimity, meaning every juror must agree those things have been done. The defense may present any mitigating circumstance that is germane, and always includes things like background and mental capacity, which is the reason I did not object to the addition of mental illness. It is certainly common in every death case to hear that type of evidence. Nevada statutes provide for the defense to introduce mitigating circumstances. The statutes cannot be changed because the United States Supreme Court says the information must be received in a penalty phase to properly evaluate the defendant before the sentencing body, which is the jury.
Senator Titus:
When a jury is selected, are potential jurors made aware a juvenile is being tried, or are they just generally asked about their views on the death penalty?
Mr. Peterson:
The preliminary question is not so much whether or not the juror could consider the death penalty, but whether he or she could consider all punishment options. Jurors would be unacceptable if they were unable, under any circumstance, to consider life without possibility of parole. In a first-degree murder case, a juror might say he or she could not give the offender a sentence in which the offender could get out of custody. That juror would be unacceptable, as well as a juror who said he or she could not consider the death penalty if the law provided for it. In a juvenile case, a potential juror is questioned more specifically about imposing the death penalty on a juvenile. The judge, counsel, and prosecutor need to know whether or not the juror could consider all punishment options for a juvenile.
Senator McGinness:
Is a person adjudicated a juvenile before the process begins? Are there some states wherein, once the verdict has been reached, the juvenile could then be considered for the death penalty due to the heinous nature of the crime?
Mr. Peterson:
Procedurally, in almost every state, there is an almost automatic certification procedure when murder is involved. Some states require a juvenile court magistrate to hold a hearing. The majority of states deem if a person commits certain types of crimes, for example, sexual assault, robbery using a deadly weapon, or murder of any kind, a juvenile is automatically certified up to district court or to the adult court for proceedings. It does not mean the juvenile is necessarily eligible for capital punishment. That decision is made by the death penalty review committee of the Clark County district attorney’s office which takes multiple factors into account. Should the review committee decide it is appropriate to file a notice of intent to seek death, it is done when the juvenile faces felony arraignment in district court.
The notice of intent to seek death is filed early. There is a period of time in which to file and, customarily, the determination is made as soon as possible in order that everyone involved will know whether or not it is a death penalty case. At that point the defense is free to litigate the matter in a number of ways. Unless there is a finding of mental retardation, once the notice of intent to seek the death penalty is filed, the case is treated as a “death possible” case. The defendant is now entitled to two attorneys and various other procedures are put in place. From the beginning of the trial, the jury will know it is a possible death case because they were asked specific questions in regard to the issue before being selected.
Senator McGinness:
Therefore, the decision is always made up front.
Mr. Peterson:
Absolutely. There is never a situation in which there is a trial, a person is convicted of first-degree murder, and then a notice of intent to seek the penalty comes down. It cannot happen.
I am providing the committee with the U.S. Department of Justice, Bureau of Justice Statistics Bulletin entitled, “Capital Punishment 2001” (Exhibit K. Original is on file in the Research Library.), which indicates 13 states allow execution of individuals 16 years of age or younger. Seven additional states do not specify an age, which means there are a total of 20 states that allow the death penalty for juveniles 16 years of age or younger. States that do not specify an age are impacted by the United States Supreme Court decision, Stanford v. Kentucky, which says, regardless of the state statute, if juveniles are under age 16, they cannot be executed. An additional 4 states set the age at 17, therefore, 24 states allow execution of juveniles under age 18.
I want to make a legal point. In regard to Atkins v. Kentucky, the case that overturned the death penalty for those competent to stand trial, yet mentally retarded, the United States Supreme Court was given the opportunity to reverse its opinion in the juvenile death penalty matter. Although they decided in the Ring v. Arizona case, which did away with three-judge panel type situations in many cases, they reversed on mentally retarded persons. The case that allows execution of juveniles 16 and older is called Stanford v. Kentucky. In that case, because the United States Supreme Court had just decided Atkins v. Kentucky, the petitioner submitted the same arguments applied and the Court should not allow the execution of juveniles. That case is called In Re Stanford and the United States Supreme Court specifically said it did not want to decide the issue, nor did it want to take the opportunity to overturn it. In candor to the committee, there was a strong division on the United States Supreme Court, but nevertheless the majority decided not to take the opportunity to reverse field on the issue of execution of juveniles.
Chairman Amodei:
The hearing is closed on A.B. 118 and opened on A.B. 17.
ASSEMBLY BILL 17 (1st Reprint): Makes various changes concerning defense in cases involving first degree murder. (BDR 1-201)
Michael Pescetta, Assistant Federal Public Defender, Federal Public Defender, 9th Circuit Court of Appeals:
I am appearing here as an attorney who practices in death penalty cases and habeas corpus matters, and not as a representative of the Federal Public Defender. Assembly Bill 17 is intended to raise some of the compensation rates for counsel in capital cases and provide for a team of two lawyers for capital cases by statute, something already provided for by United States Supreme Court rule. Competent counsel has been a bane of capital cases for many years. It is one of the highest incidences of reversal rates in capital cases. Assembly Bill 17 is an attempt to at least modestly improve the compensation of counsel appointed in cases where they are directly appointed by the district court.
In both Washoe and Clark Counties, most capital cases are handled by the institutional public defender offices, that is the Washoe County public defender, and the Clark County public defender or the special public defender’s office. In cases where individual lawyers are appointed because of conflicts with the institutional defender offices, the compensation has been the same for the last 12 years. It was raised to $75 an hour in 1991. The limit of compensation of $12,000 per case was also imposed in 1991. The rate for available ancillary services, which is $300, was imposed in 1983. It has been a long time since these were changed and, of course, compensation rates for lawyers have increased over that time. In other areas, special prosecutors, when the Clark County district attorney’s office cannot prosecute a case, have reached the range of $200 an hour, in some cases.
Assembly Bill 17 proposes to raise the compensation rate for capital cases for attorneys to $125 an hour to raise the presumptive maximum rate. In candor, we have to acknowledge there is a safety valve in the statute. As it is now, the compensation caps can be exceeded on motion for extraordinary services. They are typically exceeded in capital cases. The proposal struck by the Assembly Committee on Judiciary was to raise the compensation rate to $125 an hour, and raise the presumptive cap in capital cases to $20,000 a case, and that is essentially the proposal of A.B. 17.
Also, section 3 of A.B. 17 provides specifically when private counsel are appointed by the district court, the court is required to appoint a team composed of two attorneys and any other person it deems necessary. That would include experts, investigators, or any other persons necessary for ancillary services.
Chairman Amodei:
The committee has been requested to consider an amendment from the majority leader regarding the rate for all other services, which is presently $75 an hour, to increase it to $100 an hour. I think the reason for the request is the same as that behind the request for an increase in death penalty cases. I assume whatever the corresponding amount is for the other maximums found in section 1, subsection 2, paragraphs (b), (c), and (e), of A.B. 17, and I suppose section 1, subsection 3, of A.B. 17, to the extent it is relevant. Have you any thoughts for other matters in noncapital cases of increasing the fee from $75 an hour to $100 an hour?
Mr. Pescetta:
I certainly do not object to it. The compensation rate in all appointed cases has traditionally been lower than the market rate for attorney’s services. Some of the concern has been to keep the compensation up to a point where an office can be run, which is not always possible. As I understand the thinking in the Assembly Committee on Judiciary, when the compensation was raised in section 1 of A.B. 17 to Nevada Revised Statutes (NRS) 7.125, subsections 1 and 2, with respect to the caps, it was anticipated the provision of section 1, subsection 4, of A.B. 17, provides the appointing court, due to the complexity of the case, severity of the offense, or other special circumstances, can provide a fee in excess of the statutory amounts. I believe the Assembly Committee on Judiciary thought as long as the provision is available, the district court can, in appropriate cases, determine the compensation caps provided for in section 1, subsection 2, paragraph (b) of A.B. 17, which are currently $2500 for a felony other than a felony under paragraph (a). A misdemeanor is $750, an appeal of a misdemeanor is $750, and an appeal of a felony conviction is $2500.
In serious cases and other appropriate cases, those amounts are typically exceeded, however, I do not think there was consensus in the Assembly Committee on Judiciary about what the amounts should be changed to in terms of the caps. I do not know whether there is consensus anywhere else at this point. However, I think raising the noncapital rate to $100 an hour would certainly be appropriate.
Chairman Amodei:
Is your feeling based on your experience that the caps found farther down in the bill are adequately dealt with by exception on a case-by-case basis by the appointing court?
Mr. Pescetta:
That is typically what occurs. The district courts are aware, as are all other lawyers, that some of these amounts were set 20 years ago and are no longer realistic. Members of the bar who do these cases on appointment have said the hourly rate is the basic problem, because it frequently is not enough to keep an office going. If the hourly rate is raised, of course the cap will be reached sooner, but as long as the judge is appreciative of the fact the case is serious and the hours devoted were reasonable, the judge is always in a position to exceed the cap.
Senator McGinness:
The $125 per hour on death penalty cases probably would not affect the rural counties much, however, raising the others from $75 an hour to $100 an hour would cause an impact. The front of the bill indicates there would be an effect on local government, but not on the State. Therefore, should it be considered, testimony would be needed from the counties on how they would be affected. Their budgets have been set for the year, consequently, this might have an impact.
Chairman Amodei:
A fiscal note has been requested, which I will distribute to the committee members. The following counties reported minimal fiscal impact with regard to the raise from $75 to $100 an hour: Douglas, Mineral, and Nye Counties. The following counties indicated fiscal impact was unknown: Esmeralda, Lincoln, and Humboldt. Eureka County indicated there would be no fiscal impact. Carson City reported a fiscal impact of $16,000 a year; Churchill County, $16,800 a year; and Clark County between $500,000 and $1 million a year. Elko County reported a fiscal impact related to the capital case amounting to $80,000 a year for the $100 increase, and $600,000 a year if a capital case is charged. Lander County reported a fiscal impact of $10,000 a year. These fiscal impacts reflected capital cases and the other raise to $100 a year. Lyon County reported a fiscal impact of between $105,000 and $109,000 a year; Pershing County, $400,000 a year; Washoe County, between $160,000 and $274,000 a year; and White Pine County, $150,000 a year. Those are the numbers associated with the measure.
JoNell Thomas, Attorney:
I appear today as a member of the board of directors of the Nevada Attorneys for Criminal Justice, the American Civil Liberties Union, and perhaps most importantly, as an attorney in private practice who accepts court‑appointed cases, primarily death penalty cases, but other cases as well.
I did a cost-of-living calculation adjustment and $75 in 1993 would be worth $59.22 today. As an attorney who does a bit of court-appointed work, I certainly recognize it is more than minimum wage. However, the fact is, for that amount I also must pay building rent, a secretary, have research ability, a computer, and cover miscellaneous expenses not usually recognized. I often pick up the expenses if my client does not have appropriate clothing for court. It is out-of-pocket, because I am not reimbursed for that expense or travel time under current regulations.
I charge three times as much for private cases. Sometimes it is tempting to give up court-appointed work and just do privately retained cases. My bookkeeper would be much happier if I did. However, I think these cases are important and I would like to continue doing them, but it becomes very difficult. Business taxes, gross receipt taxes, and other types of taxes are another expense I must consider as a person in private practice trying to run a business.
I recognize the pay raise to $125 will have a fiscal impact upon the counties, but I urge you to consider the other end of the story, which is, if there are no qualified attorneys taking these cases, they will be reversed at some point, either by the Nevada Supreme Court, the federal district courts, or the Ninth Circuit Court of Appeals. The expense of having a case returned for a second trial is also considerable.
Since 1993, the district attorney’s office, attorneys in civil practice, and public defenders have received some kind of pay raise. I urge you to recognize individuals in private practice who take these cases, but will still not make a lot of money even though the pay raise is granted. I certainly think the pay raises are warranted.
Mr. Mowen:
We support the going rate for attorneys to provide defendants proper representation in court to present all the facts. It will prevent family members of the victim from having to relive the nightmare over and over. If it takes an additional $25 or $50 an hour, or whatever it takes, in the long run it will save money.
I appreciate the committee for taking the time to delve into the issue of the death penalty in its entirety. I would like to see it become much more effective than it is today. It takes 10, 15, or 18 years before a murderer is executed because of all the appeals. So much money is spent and I question whether it is being used properly. I would like to see dollars saved and put back into the community to help prevent 5- and 7-year-old children from turning into Donte Johnsons and Zane Floyds as they grow up.
Mr. Siegel:
It should not only be attorneys who recognize the need for excellent attorneys. The Nevada Supreme Court attempted to provide a framework for qualification and training for private attorneys in death penalty cases. We need them particularly in conflict cases where public defender’s offices have conflicts between more than one attorney, among other situations. Assembly Bill 17 is asking for the practice of the district courts to be approximated. It is barely approximated by law in terms of what we have.
The death penalty is an extremely expensive proposition, averaging at least $2 million a case. That is one of the reasons I am testifying against proceeding in juvenile cases and cases that are most likely to be overturned. After expending $2 million, a Nevada offender is likely to end up serving a life sentence, even when given the death penalty, and dying of natural causes. The bottom line is, do it right the first time.
Clark County was found to be one of the top ten counties in the United States having reversals, and using the death penalty more. In this case, we are dealing with private attorneys. I suspect there is greater risk for overturning cases with private attorneys than there is with the public defender’s office. That may or may not be true. Let us make sure the private attorneys in Clark and Washoe Counties, from whence most of the cases come, are compensated properly. They are tightly scrutinized, their reputations are on the line, and it is extremely important to do it right.
Mr. Peterson:
I litigate all 64 death row inmates from Clark County. Sometimes television and popular culture make it seem the district attorney is interested in having unprepared or unqualified attorneys in order to roll over them. That could not be further from the truth. While there is no doubt Special Public Defender Philip Kohn, Mr. Pescetta, Ms. Thomas, and others give me headaches on occasion at the end of the day, everyone is pleased and sleeps more comfortably knowing experienced and qualified persons are litigating the most important cases that come before us. During the last Legislative Session, the Clark County district attorney’s office did not oppose a similar request for a compensation increase, and we do not oppose it now, as it relates to capital cases. I join in the statement, it is very important to have these matters litigated appropriately and, if in the wisdom of this body, it is benefited by increasing the payments as requested in A.B. 17, we do not oppose it. In fact, we support it.
Chairman Amodei:
The hearing is closed on A.B. 17. Is there an appetite among the committee members to amend and do pass A.B. 17 with an amendment to raise the $75 an hour to $100 an hour?
SENATOR TITUS MOVED TO AMEND AND DO PASS A.B. 17.
SENATOR WASHINGTON SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR NOLAN WAS ABSENT FOR THE VOTE.)
*****
Chairman Amodei:
There being no further business to come before the committee, the hearing is adjourned at 10:30 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: