MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
April 13, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:03 a.m., April 13, 1993, 1993, in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Chairman
Mr. Bernie Anderson
Mr John C. Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. Ken L. Haller
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Mr. Michael A. Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
Mr. Gene T. Porter
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Ms. Denice Miller
OTHERS PRESENT:
Ms. Patricia Justice/Nevada Attorneys for Criminal Justice
Ms. Dorothy Nash Holmes/District Attorney, Washoe County
Lieutenant Jim Nadeau/Washoe County Sheriff's Office
Assistant Sheriff/Coroner Dennis G. Green/Carson City Sheriff's Department, Nevada Sheriff's and Chief's Association
Mr. David Sarnowski/Chief, Criminal Division, Nevada Office of the Attorney General, Carson City
Ms. Beverly Saucedo/Extradition Coordinator, Nevada Attorney General's Office
Mr. Richard E. Wyett/Parole and Probation Department
Ms. Anne B. Cathcart/Deputy Attorney General, Criminal Justice Division
Ms. Pat McGaffin/Nevada Department of Prisons
AB 463: Expands circumstances under which alcoholic or drug addict convicted of crime is eligible to elect treatment for abuse of alcohol or drugs before sentencing.
Ms. Patricia Justice, Nevada Attorneys for Criminal Justice, testified in favor of AB 463. Ms. Justice explained the bill, stating individuals charged with trafficking of a controlled substance, sale of a controlled substance, or possession would be given the option to seek treatment. AB 463 would be for the first-time offender who had no other felony convictions, who had nothing pending against him.
Ms. Justice declared under the statute, trafficking involved four grams. The word trafficking in the statute basically referred to quantity, not the fact individual was trafficking in it.
Ms. Justice cited the Bureau of Alcohol and Drug Abuse in Nevada published a paper in October which read the abuse of drugs was the single largest factor in the increase of prison population. The Bureau felt individuals incarcerated for drug offenses would, in the next five years, overwhelm Nevada's prison system. The paper also said incarceration had no effect on a drug problem.
Ms. Justice pronounced the program in effect in Las Vegas was extremely effective. If the program did not work, the system could revert to putting the people in prison. AB 463 was a plea for people to be able to receive treatment for the addiction, she stressed, and added money should be saved by local governments not incarcerating people.
Mr. Petrak asked for an example of a person taken in on a first time offense.
Ms. Justice told the committee Judge Layman was very much in support of AB 463, and Tom Pitaro, past president of Nevada Attorneys for Criminal Justice, worked closely with Judge Layman on AB 463 which they would like to see in effect.
Answering Mr. Petrak's question, Ms. Justice stated a person under the influence of a controlled substance went before the drug court and was given the option to be in the program. They underwent random and frequent urinalyses, and also were involved in a type of acupuncture treatment called "being under the needle." The treatment supposedly helped decrease anxiety level and need for the narcotic. Ms. Justice cited an example of a woman who came in the system, and only after eight days said how marvelous she felt. The most surprising thing was how different the people looked, Ms. Justice reflected. When they first came in the program, they were incredibly thin, gaunt and dishevelled. After a short period of time when drugs were out of their system, they looked better. They did not have the awful pallor around them, and they actually seemed to be prospering.
Ms. Justice said the people in the program knew if they did not succeed, the criminal charges could be reinstated.
Mr. Toomin asked Ms. Justice if people were confined to a facility after the sentence in the courtroom in order to keep them under control and dry them out. He raised the possibility they could go for treatment and afterwards go home and use drugs again.
Ms. Justice replied the people came in several times for treatment and for random tests. However, she could give no definitive answer. The system was overwhelmed at the other end, where Ms. Justice worked, with the people who had preliminary hearings every week on possession of controlled substance with intent to sell and sales control substance first offense. She stressed attorneys in her office were looking at this from the total criminal justice element and not through the drug court.
Mr. Toomin asked if a person committed a serious crime and was a drug addict, and was let loose, "How do we know he won't commit another crime to get money to buy more drugs?"
Ms. Justice called attention to Section 1, subsection 1 which states a person would not be allowed in the program if the crime was a crime against a person punishable as a felony or gross misdemeanor. The program was designed for the person with possession with intent to sell, possession of a controlled substance, sale of a controlled substance which often was to a narcotics agent which caused their arrest. Being arrested and having in possession or in their automobile four grams or more of a controlled substance would then make it trafficking.
Mr. Haller asked for confirmation the change in AB 463 was in Section 1, subsection 2. Ms. Justice confirmed the change and said the program would accept first-time offenders.
Mr. Sader referenced Mr. Haller's question and explained NRS 458 read a person was eligible unless he fell within one of the listed categories, and one of the categories suggested for deletion was the crime of selling a controlled substance, possessing for sale. Mr. Sader contended if lines 8, 9, 10 and 11 were deleted, then those people would be eligible provided they had never previously been convicted of that kind of crime. That particular language appeared on lines 18 through 20, he added.
Mr. Sader asked what kept someone from going through the 458 program several times. AB 463 provided for a person who had not been convicted. Under the 458 program if treatment was completed satisfactorily, the conviction would be set aside. Mr. Sader questioned the potential for a person to repeatedly go through the 458 program.
In reply, Ms. Justice said page 2, lines 1 through 3, offered an individual the choice of this program once every five years.
At this time Mr. Carpenter asked Ms. Justice if some of the persons she worked with had said this was a successful program. Mr. Carpenter asked why the people in the drug court were different from the ones being talked about.
Responding to Mr. Carpenter, Ms. Justice discussed the ones in the drug court were finding the program extremely successful. The drug court presently only handled people charged with under the influence of a controlled substance so drugs actually had to be found in their blood when arrested. They were users but oftentimes the other individuals were users also. When arrested if they had more than four grams, they were charged with trafficking, she reiterated.
Mr. Carpenter asked for statistics on results of the program. Ms. Justice did not have actual numbers but would obtain statistics for the committee from Judge Layman.
Mr. Carpenter suggested these could be big time dealers and this would be the first time they were caught. Ms. Justice said she had never had a client whose first offense in the drug field was a large scale trafficking offense.
Mr. Carpenter advised in the newspaper he noted people arrested for the first time and had bail of $50,000 or $100,000 which meant they must have had a lot in possession. A first drug offense was usually under the influence of a controlled substance, Ms. Justice said.
Mr. Regan commented the program had been very successful in Dade County, Florida. Statistics Judge Layman sent to Mr. Regan reflected recidivism for people who had gone through the program was less than three percent; less than ten percent for people in the program, whereas people who had not been allowed to go into the program were going back into the 50 percent rate. AB 463 would allow just a program for first-time offenders. If over 28 grams were found in possession, this was a federal offense. Mr. Regan also commented the acupuncture treatment worked well. He reiterated Ms. Justice's statement the people were on a very tight program; they were on a triweekly urine test at the beginning of the program, and if the results were dirty, the person was out of the program. Mr. Regan concluded he felt the program was an excellent one.
Mr. Anderson spoke regarding questions raised by Mr. Carpenter which he too was concerned about and asked what statute would be left open to Nevada to take first-time offenders who happened to be carrying a relatively large amount of drugs, or selling a controlled substance. He asked in Nevada if this was removed from contention would Nevada still be able to charge them within Nevada or was the only option then open to the judge to do this.
Ms. Justice replied they could be charged anyway. It was the option of the person arrested whether he would like to go into the program. The person had to agree and then the Judge was asked.
Mr. Anderson asked for assurance the person carrying more than 28 ounces of a controlled substance would be charged under federal statutes only. Ms. Justice replied it was a possibility but not guaranteed. It would depend on what the District Attorney's office wanted to do.
Mr. Collins questioned if the acupuncture program was a specific program. Ms. Justice answered it was prior to conviction.
At this time, Mr. Sader clarified NRS 458. He dialogued a person was convicted of the crime, and then as an element of sentencing, the election for drug treatment took place. If the person accepted, he would go into the program. If he was successful in the program (completed the program) and satisfied the conditions of the treatment, then conviction could be set aside. Therefore, at the end, if he was successful, the conviction would be set aside, but if he was not successful, the conviction would stand. "It is not a situation where you are not convicted in the first place," he countered.
Ms. Justice admitted she had misstated that, and Mr. Sader ceded it formerly was that way but was changed about four years ago.
Ms. Smith asked if there were different categories of drug amounts. Was the charge trafficking whether there was a thousand grams or two grams, she inquired.
In response to her question, Ms. Justice replied no more than four and less than 14 grams was called "baby trafficking." Fourteen to less than 28 grams was mid-level trafficking. Each one had its own sentencing structure and fines, and it was less for low level trafficking, but three years incarceration was the minimum.
Ms. Smith then asked if the kind of trafficking to be included could be specified by the committee instead of saying all trafficking as it presently read. Ms. Smith noted this was a good program in Las Vegas, but questioned if it would be carried out in the same way for everyone.
Mr. Sader said the program, drug court, was only in Clark County. He reiterated it was patterned after a successful program in other states. The 458 program, however, was utilized throughout Nevada. The statute required the program be a state approved treatment program. But it was not done the same way; not with the follow through, not with mandating a specific program and then watching how they did. The administration was very different, he concluded.
Mr. Petrak then called attention to the wording of AB 463 wherein almost every sentence dealing with drug addict had "alcohol and drug addict." He questioned if alcoholics were included in this program and if so, the circumstances. Mr. Sader replied DUI's were excluded.
Mr. Petrak then asked Ms. Justice to let the committee know where alcohol would come into effect in the program.
Mr. Regan stated Judge Layman's program was based on a Washoe County program on methadone. He stated the facility was available in Washoe County, but he was not sure any of the judiciary in Washoe County was using it at this time. Judge Layman said it had been very successful.
Mr. Sader understood a figure in excess of 80 percent of the people incarcerated in the prison system in Nevada were either alcoholics or drug addicts.
District Attorney Dorothy Nash Holmes, Washoe County, spoke on behalf of her office and the Nevada District Attorneys Association, in opposition to AB 463. Ms. Holmes described DA- ACT, the District Attorneys Acupuncture Counsel and Treatment Program in Washoe County (Exhibit C) which she said was based on the Miami plan. Money for the program came from a grant of $80,000 and matching funds of $20,000, she stated, and provided treatment for 79 individuals for a year. Of the 79 people, 46 completed the program or were near the end of their treatment programs and the rest were continuing in the program, she cited. Only two individuals had re-offended. The treatment was for alcoholics, DUI offenders from municipal court, and drug possessors. People with prior trafficking histories were excluded by agreement of all members of the grant and the treatment providers. Everybody recognized a qualitative difference between drug possessors and users and drug traffickers, she added.
As part of the program, Ms. Holmes provided amnesty from prosecution for any pregnant substance abuser who went into the program; and whether it was part of the grant or not, drug treatment was provided free of charge. Two clean drug babies were born as a result of the program. Every time the program had been on television, people came forward and volunteered for the program. The grant was over, she related, and Washoe County no longer had the program. Defense attorneys and judges wanting to send people to the program called every day, but the grant was only for a year, and the money had expired, she summarized. However, the treatment provider, Choices Unlimited, agreed to continue the free treatment for pregnant women.
Mrs. Holmes spoke against AB 463 and discussed northern county programs which she felt were better. She submitted the final report on DA-ACT grant with final statistics. (See Exhibit C.)
She reported her office had sponsored and submitted a grant application for $145,000 for the Coalition for the Treatment of Pregnant Substance Abusers which had 27 members and five district attorneys including Churchill, Lyon, Carson City, Douglas and Washoe. She described the coalition as a linked network of treatment providers and support services in northern Nevada which were parenting classes, drug education classes, HIV counseling, foster grandparents, and Wings which worked with pregnant teenagers.
Ms. Holmes stated District Attorneys and prosecutors throughout the United States were very much interested in treatment. They recognized prosecution alone did not solve problems.
Ms. Holmes discussed her reasons for opposition to the program. She referred to her prior experience as a federal drug prosecutor when she stated not one major trafficker had prior convictions and every one of them would have been eligible to elect treatment under AB 463; not for the District Attorney or for the Judge to propose it, for them to elect it.
She addressed Assemblyman Smith's question to Ms. Justice and said small-time, first-time drug traffickers received consideration on sentencing because the legislature decided there should be a different range of sentences for different amounts of drugs. It was a 3-to-25 year range and most of them would not get 26 years on a four gram sentence.
At this time, Ms. Holmes compared Nevada's drug problems with those of other states and pronounced Nevada had a minimal drug problem because Nevada had strong drug trafficking and strong sentencing laws, and because Nevada imposed them. Nevada's laws were renowned for being tough, she added.
A revolving door potential existed in AB 463, Ms. Holmes believed, because the trafficker elected treatment. The person could come back in a few years since no conviction resulted.
Mrs. Holmes stated most traffickers seen in her experience were minimal users. They were in it for the money. Few were in drug trafficking for their own drugs. They considered time in prison a "cost of doing business."
She then addressed Assemblyman Petrak and explained how the NRS 458 program applied to alcohol abusers.
Mrs. Holmes expressed concern with the type of program used under AB 463. Some programs were more effective than others, and she declared her enthusiasm for acupuncture treatment possibilities because of its effectiveness as a detoxification method.
Ms. Holmes felt AB 463 was not a solution to drug problems; she felt it was an opportunity for drug traffickers who were a class of people, separate from drug users, motivated by greed, opportunism and money, who should be dealt with by sentencing provisions as they presently were.
She explained a four gram trafficker who was originally arrested could be charged as possession or possession for sale. She suspected a very small number of people served time for four grams.
She disclosed traffickers were smarter than most people, and it took years to catch them. Some of the major cases Ms. Holmes handled had no drug convictions and had been selling drugs for more than 20 years.
She concluded her testimony by stating treatment resources should be for the little guy who turned to alcohol and drugs because of personal problems and to pregnant substance abusers, not for greed motivated drug traffickers.
Mr. Sader asked District Attorney Holmes to clarify the program she had in Washoe County on percentage of successful completion.
Ms. Holmes explained of 79 people who were treated, 19 percent had completed treatment successfully with no recidivism, 32.9 percent were still active in and towards the end of their treatment with no recidivism, 32.9 percent of the referrals made by the court were inappropriate and were rejected by the traditional method or the acupuncture program because of prior treatment failures or their other criminal histories, and 15.2 percent were abject failures.
At this point, she discussed the statistics in the Florida program and felt they were due to acupuncture and to Judge Layman and his personal involvement in the program.
Mr. Sader asked if traffickers were allowed in the Dade County Program and Ms. Holmes informed him only the users who were there for possession and personal use.
Mr. Sader asked if she knew of similar programs where traffickers were allowed, and Ms. Holmes did not know of any. Mr. Sader then brought up the criteria for defining traffickers and asked Mrs. Holmes where the line would be drawn.
Ms. Holmes said it was different in every state. Some quantities were considered more heinous in certain states than in others. Nevada and Texas had some of the strictest drug laws in the country by virtue of quantities, she offered.
Nevada had drawn the line by establishing the amounts, Ms. Holmes declared . She gave an example and described an amount and circumstance of possession and trafficking, adding in a trafficking statute the person was not eligible for probation unless he cooperated with the state. He had to provide substantial assistance which was defined as turning over some drug sources, a very effective statute and the only way out for traffickers. Traffickers received probation in Washoe County every week because they gave substantial assistance needed by undercover police and narcotics officials to make a dent in the program.
A discussion continued between Mr. Sader and Ms. Holmes with reference to the rehabilitation of drug traffickers, and Ms. Holmes advised she could not offer statistics but could offer anecdotal information based on her experience as a prosecutor, which was, the huge level traffickers were barely drug users themselves which would allow them to "walk through" the drug program since they were not addicted.
Mr. Sader countered, in looking at the overall picture, they were doing something wrong. Ms. Holmes agreed but rebutted district attorneys offices and police agencies all over the country were starting to put their funds into reduction and prevention type programs. She reiterated her belief AB 463 had the potential of allowing in the program a different class of person, a sophisticated criminal.
Mr. Gibbons questioned if a defendant was convicted for the first time, allowed to go through the program and his records were sealed, procedurally what was the use in a subsequent prosecution of the evidence of the first trial. Was it admissible, he questioned. Ms. Holmes answered when records were sealed, they were destroyed.
Mr. Gibbons confirmed theoretically, every time the person came back into the program, it would be a first time.
A discussion ensued between Mr. Sader and Ms. Holmes regarding the sealing of records with Ms. Holmes declaring hundreds of records a month were sealed.
Mr. Gibbons asked if the treatment program looked at the mental ailment which could be treated for trafficking. Ms. Holmes did not know. She reiterated asset forfeiture was used in dealing with their greed.
Ms. Smith questioned the difference between selling a controlled substance and trafficking. Responding to Ms. Smith's question, Ms. Holmes explained Nevada legislature added trafficking to the drug statutes in the mid-1980's. Nevada realized trafficking was not a single isolated transaction. Penalties were different; possession for sales was different from straight possession.
A discussion ensued between Ms. Smith and Ms. Holmes regarding selling drugs and trafficking drugs with Ms. Smith questioning whether a person who qualified for selling would be a good candidate for the treatment program. Ms. Homes did not have the percentage of people treated as sales as opposed to trafficking.
Mr. Regan conveyed his concern with line 3, Section 1 of AB 463, and a discussion ensued between Mr. Regan and Ms. Holmes with Ms. Holmes pointing out the person convicted would be eligible to elect the program. The person should not have that option, Ms. Holmes felt.
Mr. Regan asked if she would agree if trafficking of a controlled was qualified. Ms. Holmes reiterated she did not like it and suggested if the committee considered it in any form, Ms. Smith's direction of absolute lower quantities be considered.
Mr. Collins questioned the sealing statute. Ms. Holmes conveyed a special sealing statute applied to people who had gone under these kinds of treatment programs, and it was three years after completion of the program.
Mr. Scherer then discussed with Ms. Holmes the sealing and disposition of records by the central depository. Ms. Holmes did not know if the depository disposed of the records in the same way as her office disposed of records.
Discussion between Mr. Scherer and Ms. Holmes continued with Mr. Scherer referring to the number of people in the program who had failed. Ms. Holmes responded some failure was allowed for, but the ones who "crashed" really badly usually did it at the beginning of the program.
Mr. Scherer then asked if the bill would increase the amount of money Ms. Holmes needed for the program. She answered by discussing the great need for funds for programs.
Mr. Carpenter discussed with Ms. Holmes her discretion as a prosecutor for allowing small traffickers into the program. Ms. Holmes confirmed her successful use of this discretion and urged the committee to leave this discretion to the district attorney's office. She again declared not very many people were in prison for using minute trafficking amounts.
Mr. Haller cited NRS 458 and NRS 484, and Ms. Holmes described NRS 484 was the controlled substance statute that set forth the different amounts in trafficking and the sentences imposed. Mr. Haller asked if that included the concept of quantity. Ms. Holmes replied it did and that was how it was decided where the person fit in the system. A 19 year old with a certain amount in his pocket would not be treated the same way as the man with the Mercedes, no matter what the bill read.
Lt. Jim Nadeau, Washoe County Sheriff's Department, spoke in opposition to AB 463. He cited the difference in California and Nevada laws in reference to drugs, and the deterrent effect of Nevada laws. The Sheriff's Department had tape recorded conversations of people who would not come into Nevada to traffic drugs because Nevada drug laws were so severe.
He discussed the overcrowded jails in Washoe County. He felt AB 463 would loosen drug laws which would bring more drug activity into Nevada. Dealers and traffickers were dealt with differently from the person who had an addiction to a drug, he declared. Dealers and traffickers preyed on addicted people. Lt. Nadeau advised the committee he was strongly opposed to this change in statutes.
Assistant Sheriff/Coroner Dennis G. Green, Carson City Sheriff's Department, representing Nevada Sheriff's and Chief's Association, spoke in opposition to AB 463 . He felt this was a bad law and should not be passed. A message went out with downgrading the penalty for trafficking and selling narcotics, he said. The message was "it is not as serious," and Lt. Green declared that was not the message which should be out there. People needed to understand that selling narcotics in Nevada was a very serious offense and would be treated as such, he said. Going into a treatment program or a school and then having the records sealed did not help in the war against drugs. He urged the committee to not consider AB 463.
Ms. Smith then addressed Mr. Green and asked if he could delineate between the major trafficker and the very small seller who was an addict and just trying to raise some money, who might be successful in the treatment program.
Mr. Green did not know how a delineation could be made. In his experience, the district attorneys dealt with those persons on a different level than those persons selling larger quantities. Prosecutional discretion was able to deal with those people, and that type of discretion allowed the climb up that chain of tailing back to who the real people were. Every year Nevada drug laws were attacked because of prison overcrowding. "We try to lessen the minimum amounts for possession for sale and selling, and I think part of it should be handled by the District Attorneys," he testified.
Ms. Smith asked if selling of a controlled substance would be dropped to allow a person to get in the program.
Mr. Green answered her query by stating it was the conviction of what they were finally convicted of in court. Therefore, they could be arrested for possession/possession for sale, and the possession for sale would be dropped; they would plead guilty to possession, and then would qualify for the program.
Ms. Justice offered an amendment for line 8 and 9, "trafficking of a controlled substance, less than 28 grams." She felt this language would take care of people with airplanes who brought in the tons of marijuana and would include just the people at the lower end. Also, the person with 28 grams automatically would not get into the program. They could make an election, appeal to the judge, the DA could object and the people who "deserved" the program would be able to get into the program.
Ms. Holmes declared she could not represent what the district attorneys association or the other district attorneys would do on that issue without contacting them. However, her own feeling was 28 grams was high. If it was restricted to first level trafficking only, which was four to 14 grams, it might be more saleable to the district attorneys. However, she would call every one of them and come back with a consensus.
Ms. Justice reiterated 28 grams would not automatically mean they were in the program. It just meant they could make the election, then the district attorney would argue.
Mr. David Sarnowski, Chief Criminal Deputy Attorney General, Carson City, a proponent of AB 463, testified if committee enacted AB 463, his recommendation would be to specify the effective date and further specify it only be applied prospectively, that is, to offenses occurring after the effective date because it would be much easier to administer in the criminal justice system. If that was not done, those already convicted might claim some entitlement to consideration retroactively.
It would perhaps seriously upset negotiations from a prosecution standpoint in any ongoing case, and he thought a prospective only enactment would give everybody in the criminal justice system, including the defendants, a fair shake because they would be placed on notice in advance, and the courts, the defense and prosecution bar, and treatment providers would have time to react. The system would be easier to administer.
Mr. Sader confirmed Mr. Sarnowski's statement if AB 463 specified it applied to offenses committed on or after an effective date, that would take care of it.
Mr. Sarnowski replied that was the suggestion. He understood the normal effective date would be October 1 of the enactment year for most statutes. A date sometime in the future would be an answer to the legal question.
Ms. Holmes stated NRS Chapter 458 read there could be no consideration for probation or suspended sentences for drug traffickers so if this was expanded to allow trafficking, the accompanying sections of NRS 458 would also have to be amended.
Mr. Sader closed the hearing on AB 463.
AB 465: Requires person convicted of a crime for which he was extradited to Nevada to pay the expenses of extradition.
Mr. Sader told the committee AB 465 was requested by the Attorney General's office.
Mr. David Sarnowski, Chief of Criminal Justice Division, Nevada Office of the Attorney General, an opponent of AB 465, introduced Ms. Beverly Saucedo, Extradition Coordinator, Nevada Attorney General's office.
Mr. Sarnowski told the committee his submission (Exhibit D) would require some rewriting. Mr. Sader suggested Mr. Sarnowski discuss only what was not included in amendments (Exhibit D).
Mr. Sarnowski said the concept addressed two existing problems. The first would change NRS 179.225 to read that money was appropriated to the office of the Attorney General rather than to the Governor for the purpose of paying extradition expenses.
In reality, he stated, that was what happened and had happened for many years. That particular change did not get in the bill draft as it presently existed, he declared.
The second purpose, he continued, would be to enact a statute using NRS 176.189 as a guide to require a court to impose as part of the restitution in any criminal case, extradition cost. In the original bill draft, a copy of an unpublished opinion by the Nevada Supreme Court, was attached. The case was a trial case proceeded by extradition of a defendant, and at the end of the proceedings, the defendant appealed to the Supreme Court. The Court ruled District Court was without authority to impose the cost of extradition against the defendant. Typically in a police situation the district attorney's office, or his office if they were prosecuting, would make that part of the ultimate plea agreement, and then it would be more in the nature of a contract that the defendant had entered into, and there would not be a problem. This addressed that limited class of defendants who were extradited, taken to trial, the state prevailed in some sense, and the court imposed a sentence. It would require, according to the suggested language which appears in indented, single spaced format in Exhibit D on the page entitled, "Bill Draft Request Amendment to NRS 179.225 Restitution," which begins, "When a person is returned..."
Mr. Sarnowski continued, the general language allowed the district attorneys who expended resources in returning misdemeanor offenders on the infrequent occasion when they do that, to recoup those costs.
Language in the memorandum at the bottom NRS 176.033 would require the court notify the extradition officer in the office of the Attorney General. Department of Parole and Probation used various methods of collection. Normally Parole and Probation could collect monies which were remitted to his office, Mr. Sarnowski said. Likewise a parolee after serving a term of incarceration who was the subject of an order of this type would be subject to the same collection. The Department of Prisons collected a number of fines and administrative assessments where prisoners had money to collect, he commented. That would be the collection mechanism. Persons who had been adjudicated would send checks directly, where they were not under any real active probation supervision.
Ms. Saucedo then testified and pointed out the third proposal on the bill was to give the attorney general greater authority over the extradition process and in particular the expenses. They were working to set up stricter rules and regulations on just exactly what Nevada would pay to return these fugitives to Nevada. She added it cost more every year. Last year the cost was about $680,000.
Mr. Sader asked if this was needed in statute. Ms. Sarnowski replied it was needed in subsection 4 of the bill.
Mr. Sader asked her to summarize again the amendments. He understood the one on NRS 179.225 where "Governor" was deleted.
Ms. Sader countered, "We'd like to strike the word Governor and put in the words, Office of the Attorney General."
Mr. Sarnowski commented Section 1 was identified in the bill. Subsection 3 of the present bill draft would be amended by language contained in Exhibit D submission.
Mr. Sader declared Exhibit D would read, "When a person is returned to the state of Nevada under this chapter or NRS chapter 178 and is convicted of, or pleads guilty or no contest to the criminal charge or a lesser criminal charge, the court shall order, if practicable, in addition to any other sentence it may impose, that the defendant make restitution for costs expended by a governmental entity for such return."
Ms. Saucedo confirmed that was correct.
Mr. Sarnowski continued the final amendment to what presently existed in AB 465 would be an amendment to NRS 176.033. Mandatory language appeared at the bottom of the same page beginning, "If a sentence of imprisonment is required, the court shall...." It amended subsection (c) of that statute, he said.
Mr. Anderson asked Mr. Sader if the third request from Mr. Sarnowski was in the scope of what the original posting was or was that a different question and was that still germane to the bill. Mr. Sader replied yes.
Mr. Gibbons then asked Mr. Sarnowski if in prioritizing the restitution required under the provision, he had suggested, versus fines and other items that would be collected, what emphasis would be placed on one or the other versus restitution to reimburse him for extradition or collecting a fine.
Mr. Sarnowski stated it was a rare event that a fine was imposed in his estimation except where a fine was mandatory.
Mr. Sader closed the hearing on AB 465.
Mr. Sader addressed Mr. Sarnowski stating if the committee passed AB 465, he would like Mr. Sarnowski to see Ms. Kim Morgan within the following 24 hours to discuss amendments. Mr. Sarnowski agreed someone would discuss amendments with Ms. Morgan.
ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS AB 465
WITH THE AMENDMENTS SUGGESTED BY MR. SARNOWSKI.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE MEMBERS PRESENT.
ASSEMBLYMAN PORTER WAS ABSENT.
Mr. Sader asked Ms. Saucedo to notify Ms. Morgan she was authorized by Mr. Sader to discuss the amendment with her.
Mr. Sader opened hearing on SB 292.
SB 292: Eliminates requirement for unnecessary reports to department of prisons concerning offenders in residential confinement.
Mr. Richard E. Wyett, Parole and Probation Department, spoke in opposition to SB 292. He testified the Department of Prisons maintained all credit history and computations of sentences on individuals incarcerated in the prisons. Individuals placed in the 305 house arrest program were inmates in the prison. The law required the Department of Prisons maintain records and submit a report to the prison on a monthly basis giving the number of days credited to good time. Mr. Wyett asked they not be required to submit a report to the prison because Department of Prisons discarded the records because they also kept records on inmates in the 305 house arrest program.
Mr. Sader confirmed the prison kept records of the people, and the records were superfluous.
Mr. Terry Hubert, Department of Prisons, Classification and Planning Division, advised agreement with Mr. Wyett this was a duplication of records already maintained by Department of Prisons, and they had no objection to striking the language.
After a brief discussion between Mr. Anderson, Mr. Wyett and Mr. Sader, Mr. Sader clarified the Department of Parole and Probation was submitting reports to the Department of Prisons for something they did not have responsibility to do.
Mr. Sader closed the hearing on SB 292.
SB 320: Clarifies provision governing minimum time to be served before prisoner is eligible for parole.
Ms. Anne B. Cathcart, Deputy Attorney General, Criminal Justice Division, a proponent of SB 320, introduced Ms. Pat McGaffin, Nevada Department of Prisons. (See Exhibit E.) Ms. Cathcart stated the letter clarified how the Department of Prisons handled concurrent sentences to determine parole eligibility.
Mr. Sader explained SB 320 and called attention to concurrent and consecutive sentencing in relation to parole eligibility.
Ms. Cathcart responded in cases where an inmate had several sentences imposed, it was a drain on the resources of the department when the inmate reached a third of each sentence, to send him back before the parole board when the inmate would have to serve a minimum of a third of the longest concurrent sentence.
Mr. Sader said the parole board could not parole the inmate if he was serving a longer sentence.
Ms. Cathcart referred to resultant legal challenges which cost the state time, resources and money. She felt the statute should be amended.
Mr. Sader closed the hearing on SB 320.
Mr. Sader stated he would hold AB 463 for testimony by Judge Layman.
Mr. Sader asked for a motion on SB 292.
ASSEMBLYMAN GIBBONS MOVED TO DO PASS ON SB 292.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE MEMBERS PRESENT.
ASSEMBLYMAN PORTER WAS ABSENT.
Chairman Sader then asked Mr. Gibbons to handle SB 292.
Mr. Sader asked for a motion on SB 320.
ASSEMBLYMAN SCHERER MOVED TO DO PASS ON SB 320.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE MEMBERS PRESENT. ASSEMBLYMAN PORTER WAS ABSENT.
Mr. Sader asked Mr. Bonaventura to handle SB 320.
Mr. Sader stated a motion to concur was on the board for AB 68. He reminded the committee AB 68 was killed and resurrected in order to create a committee sponsored amendment to the statute of limitations and civil actions for child abuse, sexual abuse. The committee extended the statute of limitations from three years to ten years and the bill went over to the Senate side where the bill was amended to five years. "It comes back to us on a question of whether we want to concur with the Senate amendment which removed the ten year proposal for statute limitations and creates five years instead," he declared.
Mr. Sader related Ms. Smith had testified on AB 68 on the Senate side, and he understood she was not in favor of concurring with the amendment.
Ms. Smith discussed she wished to get beyond five years, and if the Senate would not concur at ten, she hoped to have them compromise. She would not accept five at that time, and hoped the committee would not also.
Mr. Sader added if the committee did not concur, AB 68 would go to conference. His intention was to appoint a conference committee if the motion was not to concur. AB 68 would go to a second conference committee. If the second conference committee could not agree, the bill would die. The question would be whether or not the committee could convince the Senate to do anything or would the committee accept five years. Mr. Sader appointed Ms. Smith chairman of the second conference committee and asked if anyone felt committee should concur rather than not concur. He asked for discussion.
ASSEMBLYMAN SMITH MOVED NOT TO CONCUR WITH SENATE AMENDMENT 231 TO AB 68.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED. (ASSEMBLYMAN GIBBONS VOTED NO. ASSEMBLYMAN PORTER WAS ABSENT).
Mr. Sader repeated he would appoint the conference committees and would send AB 68 back to the other side. He explained Senate would get the opportunity to rescind from their amendment, which Mr. Sader did not expect them to do, and Assembly committee would go to conference. Mr. Sader would appoint the conference committees, and the conference committees would meet to see if anything could be done.
Mr. Sader said he had a request from a Mr. Copeland who was head of a local organization against mandatory minimum sentencing guidelines, to draft a bill to delete the requirement that first time non-violent drug offenders be sentenced to mandatory prison terms.
ASSEMBLYMAN SCHERER MOVED FOR COMMITTEE DRAFTING OF THE BILL DRAFT REQUEST.
ASSEMBLYMAN SMITH SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE MEMBERS PRESENT. ASSEMBLYMAN PORTER WAS ABSENT.
Chairman Sader asked for committee consideration of approval for the following bill draft requests.
Eliminates the exception to the requirement that the court exonerate an obligor and release bail upon sentencing of defendant.
Requires the filing of a post conviction petition for habeas corpus in a county where the conviction occurred.
Provides for expeditious release from prison of terminally ill or physically incapacitated inmates.
Provides statutory authority for the Attorney General to pay costs of international extraditions.
Makes various changes relating to DUI offenses.
Reduces the threshold for prohibition against driving under the influence, limits the defense that a person consumed liquor after arrest.
Makes various changes relating to support.
Requires persons convicted of sexual assault to pay the cost of required psychological treatment of victims.
ASSEMBLYMAN ANDERSON MOVED FOR COMMITTEE INTRODUCTION OF THE BILL DRAFT REQUESTS.
ASSEMBLYMAN REGAN SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY BY THOSE MEMBERS PRESENT. ASSEMBLYMAN PORTER WAS ABSENT.
Mr. Sader called the committee's attention to an explanation of the ratification bill which explained bill drafter's Ratification Bill BDR S-1279. (Exhibit F)
Mr. Scherer would chair that subcommittee, Mr. Sader said.
There being no further business to come before committee, the meeting was adjourned at 10:15 a.m.
RESPECTFULLY SUBMITTED:
BOBBIE MIKESELL
Committee Secretary
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Assembly Committee on Judiciary
April 13, 1993
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