MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
May 27, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:08 a.m., May 27, 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. Gene T. Porter, Vice 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:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Ms. Frankie Sue Del Papa, Nevada Attorney General
Judge Jack Lehman, District Judge, Eighth Judicial District Court
Ms. Nancy A. Becker, District Judge, Eighth Judicial District Court
Ms. Janet S. Bessemer, Chief Appellate Deputy, State of Nevada, Public Defender's Office
Ms. Pat McGaffin, Nevada Department of Prisons
Mr. Kevin M. Kelly, Attorney
Ms. Sharon E. Claassen, Attorney
Ms. Laurel Stadler, Executive Director, Mothers Against Drunk Driving, Lyon County Chapter
Ms. Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence
Mr. Kirby Burgess, Eighth Judicial District Court
Judge Nancy Becker, Eighth Judicial District Court
After roll call, Chairman Sader opened the hearing on A.B. 637.
ASSEMBLY BILL NO. 637 Provides under certain circumstances in criminal proceedings for admissibility of evidence of domestic violence and related expert testimony.
Ms. Frankie Sue Del Papa, Attorney General, State of Nevada, appeared before the committee to testify in support of the passage of A.B. 637. She read into the record correspondence dated May 25, 1993 received from District Court Judges Charles M. McGee and Scott T. Jordan and Court Master Victoria Van Meter, Second Judicial District Court, which read as follows, "We are writing in support of A.B. 637 which, as amended and simplified, would allow evidence of domestic abuse syndrome to be admissible in court. Family violence is a pervasive problem in our society which impacts cases in the domestic relations, juvenile and criminal courts. Without an understanding of the dynamics of abusive relationships, judge or juries could make decisions which further endanger child or adult victims".
"Expert testimony on domestic abuse syndrome has been presented in our courts in the past. We have found it helpful in determining issues of fact, and also in fashioning relief which is responsive to the circumstances of the parties. A.B. 637 would help assure that this very important information is available. We urge its approval", Exhibit C.
As Attorney General and member of the Pardons Board and Chairwoman of the Domestic Violence Subcommittee of the Women's Commission, Ms. Del Papa appeared to support the passage of A.B. 637. She submitted a copy of her testimony, Exhibit D. She referenced the Oklahoma statute titled, An Act Relating to Domestic Abuse; Making Testimony of Certain Witness Admissible Under Certain Condition; Providing for Codification; And Providing an Effective Date, Exhibit E.
Ms. Susan Meuschke, Executive Director, Nevada Network Against Domestic Violence (NNADV), explained the organization was the statewide coalition for domestic violence programs in Nevada. She spoke in favor of the passage of A.B. 637 as amended. She presented a copy of her testimony, Exhibit F.
Ms. Janet S. Bessemer, Chief Appellate Deputy, Nevada State Public Defender's Office, addressed the specific language which read, "If a party offers evidence of domestic abuse, testimony of an expert witness concerning the effects of such domestic abuse on the beliefs, behavior, and perception of the person being abused shall be admissible as evidence". Chairman Sader clarified the language pertained to the amendment to A.B. 637 which substituted the language contained in the bill draft. He emphasized the language in the bill draft was superseded by the proposed amendment.
Ms. Bessemer stated, in cases where evidence was reviewed which pertained to prior instances or patterns of abuse, the provisions provided for admissible expert testimony. This was necessary as it was impossible for individuals with no experience in domestic violence relationships to understand the social and psychological context of the acts of violence. Under these circumstances, questions could be delivered in context by expert testifiers which would be admissible, but not required, only when the evidence was admitted.
Ms. Bessemer provided a similar statute contained in the witness chapter of NRS 50.345 which provided for expert testimonies in prosecutions of sexual assaults to show victims' behaviors, mental, or physical condition were consistent with the behavior or condition expected of victims of sexual assaults. Under A.B. 637, only admissible evidence was admissable on the testimonies of particular evidence. The provisions did not create new defenses.
Ms. Bessemer alleged there were two areas of defense where these types of testimonies would be useful such as in coercion or duress defenses which required defendants show reasonable cause to believe their lives were in danger if they refused to commit particular acts. She contended this was both subjective and objective to the individuals. It would be important to these types of circumstances when expert testimonies explained the effects of abuse on victims' beliefs, behaviors and perception. She contended this could deprive women of their defenses in domestic situations. She maintained self defense arguments viewed the interval between the assault and the killing as well as the proportionality of the forces used and whether the circumstances were sufficient to excite the fears of reasonable persons as well as whether the perpetrators acted. She believed experts could be useful in testifying the beliefs and perceptions of reasonable women in the hands of domestic pattern abusers.
Chairman Sader recapped the context in which A.B. 637 arose. He stated women tried for murder or aggravated assault upon spouses or others had difficulty establishing defenses. Problems arose in providing testimonies relative to the abuses, histories of the relationships as well as fears of future abuse. Juries often convicted women without pertinent information as the result of court rules. He maintained A.B. 637 was an attempt to codify standards which would allow evidence, at the courts' discretion, when relevant to cases of domestic abuse. He noted there was a widespread belief many women served time in prison who had been justified in what they had done because of the abuse which existed in the home. These women feared for their lives or the lives of their children.
Chairman Sader clarified Ms. Bessemer's suggestion which was to disregard the provisions contained in A.B. 637 and adopt the Oklahoma statute, Exhibit E. Ms. Bessemer stated the testimony was made in anticipation of the amendment being adopted which also included the testimony of the Attorney General. She believed the language might simplify the statute and address provisions not covered under the original provisions.
Ms. Sharon E. Claassen, attorney, contended the original language made it difficult to determine whether or not evidence was not allowed under existing rules as it appeared the evidence had not been presented. The concern was attorneys reviewing the existing rules of evidence and defenses might make decisions if this type of evidence was not allowed because they were not presented in the numbers of cases reviewed. She noted this was the type of evidence which would allow juries to determine if there were mitigating factors to convict on lesser offenses or determine the circumstances where acquittals would be appropriate. Ms. Claassen felt it was important to understand there was not a new defense. The provisions would expand the defenses which already existed under the law.
Mr. Scherer asked why the Oklahoma legislation was viewed as better than the suggested provisions. He alleged the Oklahoma language was broader and did not present the definition as contained in A.B. 637. Ms. Claassen asked if Mr. Scherer referred to the definition of the abuser contained in the original bill, subsection 2. Mr. Scherer confirmed his question was directed to the definition of the domestic abuse syndrome. In response, Ms. Claassen noted one reason not to include the referenced syndrome was that it was assumed. She maintained this was a developing psychological field and it was not certain if this should be defined at this time.
Ms. Claassen testified the Oklahoma bill might provide courts with more latitude to determine what was appropriate. There was an assumption in the Oklahoma bill experts would define domestic abuse syndrome. The terminology was subject to change. She alleged the rationale was to eliminate any reference or definition and allow determinations to be made by the experts and the courts as to the appropriateness.
Mr. Scherer asked if the proposed legislation to A.B. 637 would take away the discretion of the trial judges to decide whether the evidence was relevant. Ms. Claassen did not believed this would happen. Mr. Scherer noted the language read "shall be admissible". He focused on the earlier analogy which pertained to sexual assault and read, "evidence shall not be inadmissable". He focused on the substantial difference between the phrase "shall not be inadmissable" and the wording "shall be admissible". Ms. Claassen responded the main distinction in the Oklahoma statute did not state "shall be admitted" but read "shall be admissible" and entailed the discretion remaining. She referenced the subsection of the witness code and the testimony presented by experts in general which read, "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine the fact and issue, a witness qualified as an expert by special knowledge, skill, experience or education may testify to matters within the scope of such knowledge".
Ms. Claassen believed the proposed section stamped acceptance on domestic violence as a subject matter upon which expertise existed and experts could testify in court. She did not believe it would stop experts from qualification or foundations to be laid for evidence to come in or for evidence to support the testimonies of the experts in the first place. She did not see a problem with the language and understood the difference between the admissible and not admissable language. She believed the district attorney statute should read "admissible".
Mr. Scherer added his concern rested with the proposed amendment which expanded the provisions from prosecution for certain crimes to actions and would entail any actions in the courts. He believed it was important to maintain the discretion of the judges to decide whether these were relevant to the actions. Ms. Claassen ascertained the statute did this and there was a foundational basis to establish relevance. If defendants had the right to introduce evidence, judges would be required to allow testimony provided the objections were addressed. They would be subject to all the other rules.
Mr. Sader contended there were problems with the terms contained in A.B. 637. He maintained the term domestic abuse was not defined in the Nevada Revised Statutes. An unidentified female from the audience interjected and disagreed stating the term was defined and was one of the advantages of the particular language. Ms. Claassen interceded and stated the existing definition was in Chapter 33; it defined the terms domestic abuse and domestic violence under the Temporary Protective Order provision. Mr. Sader advised the definition of domestic violence was too narrow and pertained to immediate family members and children, not ex-spouses, etc. The issue with the definition pertained to physical abuse. Ms. Meuschke responded and alleged the definition could be lifted from the statute and altered to address the language of domestic violence.
Mr. Carpenter asked why the self-defense argument was not used in more cases. Ms. Claassen alleged the problem was with the language which addressed abusive behaviors where the victims retaliated later. She informed the committee self-defense was often viewed as immediate, imminent harm or threat. Often, victims of domestic abuse did not act on immediate impulse. She related the psychological aspects as to why someone would stay in abusive relationships. She maintained self-defense contentions had been used to mitigate crimes. She alleged self-defense arguments in themselves were not sufficient enough with the types of problems addressed.
Chairman Sader referenced NRS 33.018, Exhibit G, which was an elaborate definition of domestic violence. It appeared to be an inclusive enough definition and he suggested changing the language to read "domestic violence" as defined in NRS 33.018.
Mr. Haller expressed his concerns with the Oklahoma statute and believed a proper amendment was needed because if the committee attempted to fit the language of the Oklahoma statute into A.B. 637 there would be a problem. He would be in favor of passing A.B. 637 as currently languaged, although if amended, he would suggest a redraft of the amendment which had been routed through the bill drafter.
Ms. Meuschke commented the original bill set restrictive definitions for domestic violence and defined relationships. She avowed there was no such thing as a battered person syndrome. She contended, if this was true, the definition would be limited as to who would be involved. They had created a syndrome which did not exist psychologically or sociologically. She noted the narrowness of the original bill and its ability to exclude individuals who should not be eliminated. Ms. Claassen advised the Oklahoma statute would not be inserted into A.B. 637 but would simply replace the measure.
Chairman Sader apprised the committee members the bill would not be considered during this hearing due to the issues raised.
Mr. Anderson voiced his concern with the third line which referenced the beliefs, behaviors and perceptions of the persons abused. He queried if it was assumed individuals were abused because they had the belief or perception and there was no other evidence. In response, Mr. Sader advised the issue had been tempered by the first two clauses which contained the phrase, "...if a party offers evidence of domestic abuse..." In this language, the parties were required to testify to this, not necessarily the victims. The courts required the evidence which would constitute domestic abuse or violence. Testimonies which referenced the beliefs, perceptions, etc. would be admitted and the judges could decide whether or not the circumstances applied to the situation. In cases where the parties offered evidence of domestic violence relative to the cases, expert testimony would be admissible.
Mr. Regan asked if the threat of psychological abuse was as great as physical abuse. Ms. Claassen replied affirmatively and responded serious verbal and psychological abuse could be more damaging than physical abuse. NRS 94.010 addressed individuals capable of committing crimes and clarified testimonies were permitted for coercion or duress. The Oklahoma amendment expanded the application to different crimes. It allowed the information to appear before juries whose duties were to ascertain the believability.
Mr. Haller asked if the term "domestic abuse" included "significant others" and children. In response, Ms. Claassen stated she believed it was appropriate and added this was an issue for the juries to decide as to whether it made a difference. She added the provision had to include children, ex-spouses and significant others.
Mr. Petrak supported the legislation and addressed his concern with the Oklahoma statute. He referenced the third line which pertained to domestic abuse and asked if this was inclusive enough to include spouses, former spouses and cohabitants. He asked how the statute related to relationships which went beyond what transpired in the home.
In reply to Mr. Petrak's concern, Mr. Sader stated this issue had to be defined as limits were needed. He read a section of Chapter 33 which pertained to temporary restraining orders for domestic violence, "When a person commits one of the following against or upon another to whom he is related to by blood or marriage, with whom he is or was actually residing, or with whom he has a child in common, or upon his minor child or a minor child of that person.....battery, assault, compelling the other by force of threat to perform an act...a sexual assault...a knowing purposeful or reckless course of conduct to harass the other, a false imprisonment..." Mr. Sader pointed to the broadness of the provision and who it covered as well as the items it addressed.
Mr. Petrak surmised the acts of murder, manslaughter or mayhem would need to be included as well. Mr. Sader noted the terms "battery and assault" would be added which would include all acts referenced.
Mr. Collins asked if the referenced definition would be used if the Oklahoma statute was utilized. Mr. Sader clarified the Oklahoma law would be written as to adapt to the Nevada statutes.
Mr. Ben Graham, Legislative Liaison, District Attorneys Association, assured the committee the District Attorney had viewed the Oklahoma statute and the original bill draft. Their concerns paralleled the same concerns as that of the committee. He believed more detailed language could be drafted which would accomplish the intent of the proponents as well as the committee and would not leave the language open for problems.
Chairman Sader advised the committee members correspondence had been received from Ms. Joni A. Kaiser, Executive Director, Committee to Aid Abused Women, which emphasized their support of A.B. 637 as amended, Exhibit H.
There being no further testimony received in regard to A.B. 637, Chairman Sader closed the hearing. He informed the committee the bill would be held until such time as a revised version which addressed the issues raised was received.
ASSEMBLY BILL NO. 654 Authorizes certain counties to establish department of family, youth and juvenile services.
Mr. Kirby Burgess, Clark County Manager, testified in support of A.B. 654.
Judge Nancy Becker, Chief Judge, Eighth Judicial District Court, testified in support of the passage of A.B. 654. She referenced the proposed amendment, Exhibit I. According to Judge Becker, the original concept of the board mandated three judges and two county commissioners. The bill draft had omitted one county commissioner and one representative appointed by the commissioners.
Judge Becker referenced A.B. 654, Section 6 (b), page 2, line 35, and suggested deleting the word "one" and inserting the word "Two". She advised deleting in its entirety Section 6 (c), page 2, line 37 which read, "One representative of the general public appointed by the board of county commissioners", continuing through line 45 as per Exhibit I. She referenced the language on page 3, "The input from the citizens as provided by the citizens advisory board". She reiterated the intent was to provide the board with three judges and two commissioners.
Judge Becker alluded to two newspaper articles, Exhibit J, dated July and August 1992, which reported the board had decided on the format subject to changes in Chapter 62. The commissioners and judges had agreed to the basic concept in conjunction with the Clark County Public Employees Association and the management of the Juvenile Services which operated under the Family Court and the Clark County Probation Committee.
Judge Becker informed the committee in Clark County the provision of services, which was normally under the Executive Branch of the government, had been under the Judicial Branch. A number of juvenile services had been established and the complexity had expanded. The services division had the responsibility although the administration was under the jurisdiction of the courts. A separate personnel system had been set up under Chapter 62 which meant personnel under the auspices of the courts were not subject to the same provisions as in the county personnel merit system; they were treated differently than county employees which created tension, game playing and dispute. This was the reason for taking this out of Chapter 62 and placing it under the Department of Family, Youth and Juvenile Services which would be a separate county department. Judge Becker stated there was no fiscal impact as the budget would be shifted from the courts to the county.
Judge Becker alluded to correspondence received from Mr. Jay Bingham, Chairman, Clark County Board of Commissioners, Exhibit K, who concurred with the proposed provisions. She stated Chairman Bingham supported the enabling legislation which would allow for better communication between the individuals who had to deal with the problems and those who worked with the financial aspects.
Mr. Sader addressed prior discussion with Washoe County which had initially requested they be included in the amendment but had rescinded.
Mr. Gibbons understood the intent of A.B. 654. In circumstances of compelling interest demands, he requested citizen input be deleted outside the commission or judges with regard to the operation, resources or facilities management. Judge Becker noted the component of the joint board which provided for a citizen advisory committee which gave input to them. The reason was due to the fact they had not discussed the provision of one citizen, one commissioner and three judges. To address this at this point would not get the bill passed during the current legislative session. It had been discussed there would always be two commissioners, two judges and the citizen input would come from the committee.
Mr. Scherer referenced A.B. 654, Section 7, which required the county commission to establish a Citizens' Advisory Committee. He did not want to mandate legislation to the county commission if they believed the provisions did not work. Judge Becker advised this was a voluntary committee. Mr. Scherer added he believed it should be up to the commission to decide if it was appropriate enough and if there was rationale for requiring this or if it would be better to allow the county commission to establish such a committee. He maintained the county should make the determination.
Judge Becker maintained the Probation Committee which provided the citizen input and the Public Employees Association would feel more comfortable with the enabling legislation which placed requirements for a Citizen Advisory Committee. The commissioners and county management had concurred and wanted the enabling legislation to put pressure on the judges and the commissioners in order to fulfill commitments such as the Citizen Advisory Committee.
Mr. Toomin addressed A.B. 654, Section 6, which pertained to the three representatives from the district courts. He asked if this would entail the entire pool of the District Eight judges. Judge Becker replied, by the judges' own internal court rules, they had decided rather than pull it, the decision should be left to the family division judges. The family division judges voted, as per the internal court rules, they would be designated to a position so the presiding judge who was elected by the family division judges would be one member. The presiding judge pro tem, who took over when the presiding judge was unable to act, would be the second member. The chief judge of the district court who was elected by all twenty-two judges would be the third member.
ASSEMBLYMAN SMITH MOVED AMEND AND DO PASS UTILIZING THE AMENDMENT TO PAGE TWO.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
Mr. Toomin addressed A.B. 654, Section 9, and asked if the provisions would accomplish anything other than the separation of powers. Mr. Sader replied the provisions would require a conflict amendment and the bill drafter would not devise a conflict amendment until one or the other had passed.
In response to Mr. Collins' concern, Judge Becker advised Section 8 involved cleanup provisions and did not change the method of funding.
THE MOTION CARRIED. (ASSEMBLYMEN REGAN, BONAVENTURA, GREGORY AND PORTER WERE NOT PRESENT FOR THE VOTE)
Mr. Toomin was assigned A.B. 654 on the Assembly Floor.
ASSEMBLY BILL NO. 360 Revises provisions relating to First Reprint suspension of sentence for causing death or substantial bodily harm while driving under influence of intoxicating liquor or controlled substance.
Chairman Sader advised the committee A.B. 360 had been indefinitely postponed based on correspondence received from the Attorney General's Office which illustrated the problems experienced by the Department of Prisons in administering cases where individuals were sentenced under these provisions.
Chairman Sader reminded the committee of the issues which had been brought forward and the purpose for reconsidering the bill. A.B. 360 provided treatment for DUI offenders which allowed for one year or more incarceration. This was called a tail of probation. The statute had been enacted in 1991. Usually inmates were granted probation in lieu of prison sentences. In these cases, offenders were granted probation after prison sentences. The problem arose when judges sentenced lengthy terms of imprisonment with probation tails. The statute was not clear as to whether the individuals were entitled to parole considerations. The prison was left to interpret the sentences, good time credits and eligibility for parole.
Chairman Sader surmised, with the probation tail, the question was would the offenders get out of prison on parole and proceed on to probation or were they required to serve straight time with no opportunity for parole. He deducted there were many unanswered questions in the statute.
Judge Jack Lehman, District Court Judge, Eight Judicial District Court, contended the legislation had not been designed as an early out nor did it address residential confinement. The legislation had been designed to fit particular types of circumstances. The legislation had been designed to address those perpetrators who had killed or permanently injured others to serve one year in prison or in work camps. This excluded residential confinement as it was not a leniency bill.
Judge Lehman explained judges might want to sentence individuals in circumstances where these types of facts did not exist. NRS 484.3795 allowed for the sentencing of one to twenty years in prison; judges could sentence to more time although they could not sentence to terms which would have a tail or the ten years probation. He noted he had sentenced three individuals under the provisions over the past four years.
Judge Lehman stressed the bill had been designed to resolve specific problems. The legislation should be amended to provide for one year incarceration in a Nevada State Prison or a work camp and not residential confinement. He alleged ten year firm probation periods would be appropriate which he maintained was not too much to ask to pay restitution to the victims and/or the survivors of the victims.
Judge Lehman brought attention to the fact Washoe County District Attorney Dorothy Nash Holmes had made recommendations for changes in A.B. 360, Exhibit L. Judge Lehman had no objections to the proposed changes. He referenced correspondence from Frankie Sue Del Papa, Attorney General, Exhibit M.
Chairman Sader stated he did not have problems with the law as intended although some judges did not appear to understand or used the provisions as an opportunity other than which it had been intended. He voiced his concern with passing the provisions again even with the language proposed by District Attorney Holmes. He surmised, if the term "not less than" was deleted in the statute and the intent would be offenders would go to prison for one year, it would elevate the original issues which were responsible for bringing the bill back before the committee. District Attorney Holmes had not suggested this. Chairman Sader believed judges would use this law to circumvent circumstances which might occur in the prison system for DUI offenders where they would be eligible for heavy DUI treatment programs.
Chairman Sader continued, if A.B. 360 was passed as suggested, offenders would not be eligible for treatment programs because the units were not conservation camps or state prison. Judge Lehman responded and stated District Attorney Holmes had recommended offenders be placed in treatment programs. Chairman Sader noted this would occur only during the probation periods. His concern was judges or victims might see the provisions as a way to circumvent the method in which offenders were normally treated as DUI offenders. Often judges did not want to place offenders in restitution or treatment centers and would be inclined to use this statute in situations which should not apply to levy one year sentences. He did not want to get back to the situation where there were no other alternatives but to send DUI offenders to prison when many required substance abuse treatment and their families needed to be supported as well as restitution to victims. Chairman Sader stated there was something other than the straight penal retribution element which needed to be scrutinized because of specific situations.
Judge Lehman had explained the intent of the A.B. 360 to the district judges as creative attorneys had attempted to circumvent the design of the bill. He believed there would be other opportunities for offenders to afford restitution to victims and their families. He agreed the legislation required amending.
Mr. Collins was concerned with the situation where offenders were out on probation before victims had completed medical treatment. He asked if civil action could be taken for restitution in conjunction with the proposed remedy. Judge Lehman explained, in civil actions, there was the probability that whatever judgment had been assessed, it could be delineated through bankruptcy unless the judgments could be assessed under the provisions of the bankruptcy law which precluded bankruptcy. There could be sizeable judgments which would not be worth anything because the individuals were judgment proof and the judgments had no values. As Judge Lehman understood, survivors of victims would not object to the fact the offenders were on probation if they were collecting monetary restitution. It could be a condition of probation if a provision was made to mandate perpetrators work.
In reply to Mr. Haller's concern, Judge Lehman stated individuals would have to plead not guilty and proceed on to trial. Juries might find there were no liabilities because the cause of the accidents and injuries would have to be proved beyond reasonable doubt. In cases where there were plea bargains, the charges would be pled down substantially less than the penalties agreed to.
Mr. Carpenter asked if Judge Lehman agreed with the amendments proposed by the Washoe County District Attorney. Judge Lehman reminded him the provisions should not read "not less than" but should read "one year". He believed the provisions should not state "up to ten years" although he hesitated to argue against judicial discretion. Either way, the provisions provided the judges with the opportunity to sentence to ten years. Judge Lehman concurred with the remaining provisions.
Mr. Sader did not agree with Judge Lehman's suggestion to delete the phrase "not to exceed" as he believed the bill should retain judicial discretion. He used an example of a victim who ran up a sizeable sum of medical expenses. The defendant in this case made a good salary and it was felt he should compensate the victim for the medical costs incurred. The defendant also had a large family and needed money to support the children. Mr. Sader contended, in this type of situation, the judge might not want to place the offender on ten years probation and order he pay the victim restitution because the social good of providing support for the defendant's family at some point outweighed the victim's need for restitution. If the section addressed was deleted, it would require ten straight years. Judge Lehman did not disagree with this viewpoint. Mr. Sader noted judges had argued not to limit the discretion as there were too many patterns which could lead to unjust results.
Mr. Anderson queried if judges preferred the offenders serve time in prison rather than residential confinement. In reply, Judge Lehman explained legislation mandated offenders serve time in state prison or work camps. Restitution centers had not been considered. If the section discussed was removed, Mr. Anderson asked if it would provide offenders not be placed in residential restitution programs. Mr. Sader replied negatively and added the provision would have to be scrutinized and discussed further. Home restitution centers had been defined as prison. If the term "imprisoned in state prison" was used it would include restitution centers by definition. He added, if this was done, it would give judges a way to retain offenders in prison and away from the restitution centers or confinement. He alleged some judges wanted to dictate the sentences.
In response to Mr. Collins' question, Judge Lehman replied the concept of restitution for victims was a good idea and was the purpose for asking for the legislation. The charges were at the discretion of the district attorneys and were based on the facts. If the charges of manslaughter needed to be addressed, an additional law would need to be enacted to cover manslaughter.
Ms. Laurel Stadler, Executive Director, Mothers Against Drunk Driving, Lyon County Chapter, noted most of the concerns in reference to A.B. 360 had been addressed. She alluded to the concept of no residential confinement which had been an issue prior to the genesis of the DUI 305 program. The organization wanted to see one year sentences served as hard prison time or in honor camps and provide the option of the 305 program when they went on probation.
Ms. Stadler alleged one year imprisonment related to approximately ten year sentences. With ten year sentences individuals were released over one year if they were on the 305 program. This would entail one year, the 305 program, in addition to the probation.
Ms. Stadler was unable to comment on the restitution provisions as she had not seen the proposals submitted by District Attorney Dorothy Nash Holmes. She believed there should be minimal monthly amounts victims would be entitled to. Chairman Sader noted there was no suggested amount, only a percentage of the gross income. Ms. Stadler stated her concern was whether or not the courts would enforce the mandates if the offenders had minimum paying jobs and families to support. As she understood, the provision would mandate one third of the offender's income would be given to the victims. She asked if specified amounts would be withheld from restitution for the offender's living expenses.
Ms. Pat McGaffin, representing the Nevada Department of Prisons, maintained the department did not have any preference as to the outcome of the issue. The concern was directed toward managing individuals who had been sentenced outside the one year imprisonment term. Different opinions had surfaced with the absence of the language which would direct the Department of Prisons in their treatment of these types of offenders. The Nevada Department of Prisons looked to Chairman Sader for resolve. She asked if offenders were eligible for grants of parole after serving one flat year in prison. Did credits apply to release eligibility after one year had been served.
Ms. Schneider referenced cases where offenders had been divorced and paid 50 percent of their earnings toward alimony. Under the provisions, the offenders would be required to pay one third of their incomes to the victims for restitution. Mr. Sader concurred with the issue presented.
Mr. Robert Baer, Nevada Department of Parole and Probation, stated there were no preferences as to the outcome of A.B. 360. He maintained the issue arose when sentences exceeded one year, credits had been applied, and inmates became immediately eligible for parole upon consent of the prison system. The issues became apparent when individuals were placed on parole although the sentences were conditions of probation and the offenders violated their probation.
Mr. Baer posed several concerns. Would these individuals be placed before the parole board on revocation because they were on parole and on probation. Would these individuals be taken before the original sentencing judges because they violated probation as well. He alleged the stance in these circumstances was the individuals were serving probation. Mr. Baer continued, as a condition of the probation the offenders were serving a specified amount of time which gave any violation which might have occurred the jurisdiction of the original sentencing judges who were familiar with the cases.
Mr. Baer contended one Attorney General opinion supported this position. All sentencing credits should apply if the offenders served more than one year. He believed if A.B. 360 was retained as originally languaged, an official Attorney General opinion would be required in order for both departments to go in the same direction.
Mr. Baer addressed an additional concern raised by Ms. Stadler which related to the technicals. He focused on earlier testimony presented by Mr. Jim Austin from NCCD which referenced Plan B and had been submitted to the Senate Finance Committee. One condition of the plan had been technical violations which would mandate offenders return to prison for no more than 90 days and be released. This was the result of not enough bed space in the prison system which was taken into consideration by the Parole Board who weighed the circumstances. He clarified, if offenders were not sentenced to new crimes, they were considered technical violations. For example, Judge Lehman would consider technical violations as serious and would present ideas as to what the practical procedures were and what would be implemented.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 360.
SENATE JOINT RESOLUTION 2 Proposes to amend Nevada constitution to provide expressly for rights of victims of crime.
Chairman Sader advised SJR 2 would be considered during the worksession scheduled for May 28, 1993 during which time the proposed amendment would be worked out.
Chairman Sader advised the committee had deadlocked on consideration of the bill as one member of the committee had been absent which resulted in a seven to seven vote. He reminded the committee members had elected to vote again on the amend and do pass motion with the amendment as specified; retain (b) to read, "to be present at all public hearings involving critical stages of the criminal proceeding". There was a correction noted "...employees engaged in a past course of conduct, pattern.."
Mr. Carpenter asked if the motion comprised a constitutional amendment. He expressed his belief in victims' rights but felt legislation could be passed rather than waste five years with a constitutional amendment. A constitutional amendment required implementation by the legislature.
Chairman Sader informed the committee of the victims' rights statutes which did not track this language although it provided for the right to be informed and be present. He maintained the provisions would require additional statutory language if passed by the voters. The testimony of the proponents had been the matter needed to be in the constitution so as not to be changed by a subsequent legislature. As a general rule, the rights of the victims had been ignored or abused. Constitutionally, this was required in the constitution because it rose to the level of fundamental rights which should be enunciated in the Nevada Constitution. His comment in response to Mr. Carpenter's position was both practical and political.
Mr. Sader agreed there were advantages in passing a statute, however, constitutional amendments regarding victims' rights were popular with voters. When they came in the form of referendums there was the potential with language as the referendum supported, drafted and written by victims groups would not contain provisions needed in a constitutional amendment which limited the rights of causes of action. Arizona was a good example of legislation which had been enacted by referendum procedure. It stated there was a cause of action for money damages against prosecutors and others who denied victims rights. He believed this was a problem as the taxpayers were involved in money damage rights. He believed it was important to do this in a constitutional amendment so they could head off this procedure which was inevitable.
Mr. Porter noted he had initially voted against this concept. He supported the current motion but made a motion to amend the main motion. He advised the motion made was to delete subpart (d) of the resolution because in a constitutional context, he did not know how one would define dignity, respect and sensitivity as it read, "to be treated by agents of the state with dignity, respect and sensitivities throughout a criminal investigation or proceeding". According to Mr. Porker, it was subjective on the individual involved as he did not know how the officials would apply this. His motion was to delete subpart (d) from the resolution.
Chairman Sader apprised the committee of the motion to amend the main motion made by Mr. Porter.
ASSEMBLYMAN PORTER MOVED TO AMEND THE MAIN MOTION.
ASSEMBLYMAN SCHERER SECONDED THE MOTION.
Chairman Sader reminded the committee discussion was on the amendment only on the issue of subsection (b). Mr. Regan brought to the attention of the committee the word "and" in subsection (c) would require deleting and the word "and" needed to be inserted back into subsection (b).
Chairman Sader spoke against the motion. He maintained retaining subsection (d) served as a general statement of attitudes and opinions in regard to victims and elevated the victims in the criminal justice process to a higher level. He advised there were actions by the state against the defendants the victims were not party to. He did not believe the language was capable of being interpreted legally. He did not see the terms "dignity and sensitivity" as potential for injunctive relief whereas the other terms were. On the other side, victims' groups see this phrase in the national amendments to the constitution as very important. He alleged viewing this language from a legalistic point of view was not appropriate in this circumstance.
Mr. Gibbons posed a philosophical question and referenced the language in subsection (d). If the proposed language to be deleted was retained, would attorneys be permitted to treat victims during cross examination with different degrees of attitude when challenging them under the requirements of the constitution. Mr. Porter replied subsection (d) dealt with agents of the state. From a defense standpoint attorneys would be lenient toward victims.
Mr. Anderson pointed out the complaints referencing dignity, respect and sensitivity were historical cries against the executive powers of government.
Mr. Scherer believed the language which pertained to the phraseology "treated with dignity, respect and sensitivity" was not a legal concern but a political one as responsible political individuals could be voted out of office.
Mr. Carpenter addressed his concerns as to the interpretation of the provisions.
Mr. Porter stated the legislation was creating a right with a remedy in the resolution which was an action defined as injunctive relief to compel officers to comply. He believed these provisions would be a breeding ground for litigation.
Chairman Sader reminded the committee members the consideration was the amendment to the main motion which would delete subsection (d) referencing the terms dignity, sensitivity, etc. A roll call vote was called.
THE MOTION PASSED. (ASSEMBLYMEN GIBBONS, PETRAK, SMITH, TOOMIN AND SADER VOTED AGAINST.)
Mr. Collins reiterated it would take substantial amount of time if the citizens of Nevada decided to pass a referendum on the issue. He felt the legislature could pass a good bill which would defer the momentum of the referendum and thereby squelch the support. He was opposed to the motion.
Ms. Smith stated she disagreed with Mr. Collins' comment and expressed her desire to have the issues debated before the committee where legislators could have reasonable input which would result in rational legislation as opposed to legislation based on emotionalism which would be accepted with no recourse. She contended it was better to act now rather than wait until the issue arose to solve the problem. She supported passage of the amendment.
Chairman Sader called for a roll call vote on the amend an do pass motion.
THE MOTION PASSED. (ASSEMBLYMEN CARPENTER AND COLLINS OPPOSED.)
Chairman Sader did not have a problem with a bill draft to addressed the concerns of the committee members if this was their consensus.
There being no further business to come before the committee, Chairman Sader closed the hearing at 10:30 a.m.
RESPECTFULLY SUBMITTED BY.
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
May 27, 1993
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