MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
May 28, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:09 a.m., Friday, May 28, 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. 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. John C. Carpenter Absent/Excused
Mr. Gene T. Porter, Vice Chairman Absent/Excused
GUEST LEGISLATORS PRESENT:
Assemblyman Erin Kenny, District 4
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. Bob Erickson, Research Director of Legislative Counsel
Bureau
Mr. John Sarb, Administrator of the Division of Child and
Family Services
Ms. Patricia Justice, Nevada Attorneys for Criminal
Justice
Ms. Lucille Lusk, Nevada Coalition of Concerned Citizens
OTHERS PRESENT CONT'D:
Ms. Alicia Smalley, National Association of Social Workers
Chief Justice Robert Rose, Nevada Supreme Court
Mr. Ben Graham, Nevada District Attorney's Association
Judge Donald Mosley, Eighth Judicial District Court
Ms. Judy Matteucci, Director of the Department of
Administration, Budget Division
Mr. Phil Copeland, Representative of Families Against
Mandatory Minimums
Ms. Maricela Caballero, Representative of Families Against
Mandatory Minimums
Ms. Nancy Beaupre, Representative of Families Against
Mandatory Minimums
Mr. Tom Lean, Chief Deputy, Clark County District
Attorney's Office
Lieutenant Steven Franks, Las Vegas Metropolitan Police
Department
Lieutenant Jim Nadeau, Washoe County Sheriff's Office
Mr. Bob Cavakis, Director of Youth Correctional Services
for the State of Nevada
Ms. Judy Jacobini, Lyon Co. Mothers Against Drunk Driving
Following roll call, Chairman Sader opened the hearing on AB 598.
ASSEMBLY BILL 598 -
Requires establishment of program of regimental discipline for certain juvenile offenders.
Assemblyman Erin Kenny, District 4, testified as prime sponsor of AB 598. Ms. Kenny explained the bill was a redraft of a bill from four years ago regarding boot camps for juvenile offenders.
Mr. Bob Erickson, Research Director of the Legislative Counsel Bureau, accompanied Ms. Kenny since he had done research on boot camp programs in California.
Ms. Kenny emphasized Nevada needed a program of this nature as it was currently number one in the nation for child abuse and juveniles behind bars. She noted boot camp programs had proven extremely successful, and suggested non-violent juvenile offenders such as drug and/or alcohol abusers or latch-key children who had gotten themselves into trouble, should not be housed in facilities unable to handle those types of personalities. Instead, she opined, they should be sent to a facility with a regimented program where their self-esteem could be reinforced.
Boot camp for 120 days at a cost of $3,000 to $6,000 a year, she noted, was less expensive than the current cost of $32,000 for other types of incarceration. (See Exhibit C.)
Discussing amendments, Ms. Kenny said she wanted to ensure: 1) the age limit was 15 years old; 2) the bill was not gender specific; and 3) the term "non-violent offender" should be specified so there was no confusion on the issue.
Mr. Anderson asked if this boot camp program would compete with the current boot camp at Indian Springs. Ms. Kenny replied Indian Springs was for adults while AB 598 dealt with juveniles. Mr. Anderson also wondered whether a juvenile offender who went through the program would be able to enter the regular armed services or whether the individual would be judged a felon. Mr. Erickson said he was unprepared to answer the question.
Mr. Haller questioned the language in Section 1, line 12, regarding private institutions. Although she did not answer the question directly, Ms. Kenny indicated the success rates were incredibly high in the states currently using boot camps for juveniles, as well as adults. Additionally, the recidivism rate was very low with a 10 or 11 percent national average.
Mr. Haller questioned Ms. Kenny's source of information. He told her when he had researched such information in the past, he found it was not always objective. Ms. Kenny indicated her information came from the National Council on Crime and Delinquency. This agency had done an assessment of juvenile corrections in Nevada in August 1992. The summary of findings and recommendations indicated the principal objective of the assessment was to provide Nevada legislators and policymakers with accurate information on juvenile correction needs from 1993 through the year 2001.
Mr. Haller argued he could not see the bill enacted at a time when other camps were being closed down.
Concerns were expressed by Mr. Toomin. In other states when a juvenile completed his sentence and became 18 years of age, the records were sealed, and the individual was allowed to enlist in the armed services. If the age limit in Nevada was 20 years of age, would this conflict with the juvenile's ability to enlist in the military. Mr. Toomin asked Mr. Erickson to research this issue.
Chairman Sader asked Ms. Kenny to provide the committee input from judges as to the percentage of children they would refer to this type of facility.
Referring to the wording in Section 1, subsection 1(b), line 6, Mr. Gibbons asked Ms. Kenny who would make the determination of capability for strenuous physical activity. Ms. Kenny explained the language paralleled language in California statutes, and based on this, a physician would give the child a physical examination and determine if he/she was able to perform the activities in the program.
Mr. John Sarb, Administrator of the Division of Child and Family Services, spoke in opposition to AB 598 for two reasons: 1) boot camps were only an intermediate sanction and as such, were currently available with the Spring Mountain and China Spring facilities, and the freedom program in Clark County. In fact, he said, it would reinforce an area where Nevada was presently strongest, while it would not address the weaker areas of serious and chronic offenders in Nevada's correctional system.
Additionally, Mr. Sarb noted studies done on boot camp effectiveness demonstrated mixed results. He also questioned the term "hard labor" and wondered exactly what this meant. Basically, Mr. Sarb believed the bill would serve to incarcerate more children.
Mr. Bob Cavakis, Director of Youth Correctional Services for the State of Nevada, supplied the committee with written testimony in opposition to AB 598 (Exhibit D).
In response to Mr. Gregory's query, Mr. Sarb briefly described the various programs already in place.
Noting Mr. Sarb's objection to the bill, Mr. Gregory asked what he recommended to change and impact the system. Mr. Sarb stated a study on the juvenile correctional system conducted two years ago by the Legislature recommended community based alternatives which would be developed closer to the child's home community.
Ms. Smith asked Mr. Sarb what type of youth camp facilities were available for girls. He said the only intermediate camp available was at Caliente.
The judges in Clark County unanimously endorsed boot camp facilities, Ms. Smith noted. Mr. Sarb remained convinced the proposed camps would not work. As for the 11 percent national success rate, Mr. Sarb explained the statistics focused upon children who might not otherwise have been committed.
Mr. Toomin asked Mr. Sarb if he had any numbers or percentages of committed juveniles who came from single-parent families. Mr. Sarb replied no.
In response to a question from Mr. Scherer, Mr. Sarb said, "Yes," the Clark County Freedom Program provided counseling for the family members of juvenile offenders.
Mr. Haller questioned Mr. Sarb's evaluation of the programs at Elko and Caliente. In response, Mr. Sarb said they did a good job for the population there and there had been improvements as a result of the Clark County Freedom Program. He noted 85 percent of the young people who went to Elko and Caliente did not return.
Ms. Patricia Justice, Nevada Attorneys for Criminal Justice, testified in favor of AB 598. Ms. Justice explained youths who came out of boot camp were respectful, neat and polite. However, she remarked if an individual was not released until he/she was 22 years old the opportunity for an education and well-paying job was reduced. She believed study skills should be stressed in order to prepare the youth to reenter a regular school system. Additionally, Ms. Justice thought the restriction to non-violent offenders tied the judge's hands, and this should be left to the discretion of the judge.
Ms. Lucille Lusk, Nevada Coalition of Concerned Citizens, spoke in favor of AB 598.
Ms. Alicia Smalley, National Association of Social Workers, discussed written testimony to the committee in support of AB 598 (Exhibit E).
There being no further testimony, Acting Chairman Gibbons closed the hearing on AB 598.
ASSEMBLY BILL 638 -
Authorizes supreme court of Nevada to review sentence claimed to be excessive because of abuse of discretion by district court.
The prime sponsor of the bill, Chief Justice Robert Rose, Nevada Supreme Court, offered reluctant support of AB 638. Presently, Justice Rose said, the Nevada Pardons Board was reviewing and adjusting excessive sentences as this power was not vested in any other court, board or agency. However, the Nevada's Pardons Board was not equipped to address these situations, he stated. This was a board which met only twice a year to give extraordinary or exceptional mercy, and its agenda was very limited. Recently it was being asked to review sentences more frequently because there was no other adequate remedy.
Justice Rose discussed a typical case of an excessive sentence, and pointed out presently, Nevada law did not specifically give Supreme Court justices the authority to make adjustments. Justice Rose stressed this was the intent of the bill. He said he did not want to see the Nevada Supreme Court become a sentence review board, and such a power would be used sparingly in probably no more than ten cases a year, and then only in appropriate cases.
Mr. Gibbons noted there was a constitutional concept of cruel and unusual punishment in terms of sentencing. What was the perceived difference between cruel and unusual punishment and excessive sentencing. Justice Rose explained the U.S. Constitution prohibited the assessment of cruel and unusual punishment in criminal cases. In order to qualify for cruel and unusual punishment the sentence had to be truly abhorrent and manifestly unjust. The bill addressed only those cases in which the sentence was excessive but not cruel and unusual.
Mr. Collins believed the Supreme Court would probably be called upon to consider more than ten cases a year. He wondered whether a sentence review board would be better than having the Nevada Supreme Court take on the extra work load. Justice Rose replied this function would be better fulfilled by a sentence review board than the Nevada Supreme Court, but until some other authorized agency could assume the authority, he reluctantly requested this responsibility be granted to the Nevada Supreme Court.
Mr. Regan noted Justice Rose had mentioned the court was handling approximately 1,200 cases per year. Of that total, what percentage were criminal cases? he asked. Approximately half of the cases were criminal cases, while the percentage of criminal cases having to do with excessive sentencing was approximately one half of one percent. Although the issue would probably be raised more often if the Nevada Supreme Court was empowered to review cases, the vast majority could be disqualified by reviewing the case file information, Justice Rose concluded. In response to Mr. Regan's query, Justice Rose acknowledged the additional caseload, but said he did not consider it a great burden.
Judge Donald Mosley, Eighth Judicial District Court, testified in opposition to AB 638. Judge Mosley disagreed with Chief Justice Rose for the following reasons: 1) The Nevada Supreme Court was ill-equipped to review a sentence without the defendant appearing in person; and 2) it was questionable whether the Supreme Court had the time or inclination to review the lengthy presentence investigation reports. Judge Mosley believed this kind of review would open the floodgates of litigation from defendants who were unhappy with their sentences. He indicated he would not oppose a sentencing review board if the same issues were taken into consideration as were considered by the district courts, and the defendant appeared before the sentencing review board.
Ms. Smith asked if Judge Mosley would have a problem with someone else reviewing his work. Judge Mosley explained if someone used the same criteria used in district court, and if it was done fairly with the defendant appearing in person, he would have no problem with it. However, Judge Mosley continued to believe the bill would cause real problems, not because he did not trust the Supreme Court's judgment, but because the Supreme Court did not have the time nor facilities to review such cases.
When questioned by Mr. Toomin, Judge Mosley stated he was in favor of SJR 25.
Mr. Scherer asked Judge Mosley if the judges of the Eighth Judicial District Court were willing to create a sentence review board of their own. Judge Mosley said he did not oppose the concept, nor did he think many judges would oppose the idea, however he would not actively support this as he believed the need was minuscule and the problems created would be far greater than the benefits received.
Ms. Judy Jacobini, Lyon County Mothers Against Drunk Driving, spoke in opposition to AB 638. Ms. Jacobini explained her agency believed there should be an appellate court or a sentence review board to handle this function since the Supreme Court had an already heavy caseload.
Ms. Patricia Justice, Nevada Attorneys for Criminal Justice, spoke in favor of AB 638. Ms. Justice respectfully disagreed with Judge Mosley. She said the eighth amendment provided a clear doctrine of proportionality, and constitutionally, some sentences needed to be reviewed.
Mr. Ben Graham, Nevada District Attorney's Association, testified in opposition to AB 638. Mr. Graham noted there would be a tremendous increase in the work load of an already over- burdened court. He did not believe the practice of disproportionate sentencing would be alleviated by creating a five-person review board in the form of the Supreme Court. If the Legislature was truly interested in equality in sentencing, Mr. Graham suggested they require judges to follow a set pattern and establish an objective criteria based upon a sentencing scheme similar to the federal sentencing guidelines. He stressed there was definitely a need for sentence reviews, but AB 638 was not the answer.
When questioned by Ms. Smith, Mr. Graham agreed with previous testimony that such a review procedure would increase the appellate work load for the defense and for the state as well.
There being no further testimony, Chairman Sader closed the hearing on AB 638.
ASSEMBLY BILL 656 -
Expands authority of judges to reduce or suspend sentences of certain persons convicted of trafficking in controlled substances.
The following individuals testified in support of AB 656:
- Phil Copeland, representative of Families Against Mandatory Minimums. Mr. Copeland explained the bill would abolish the mandatory minimum sentences for first-time non-violent drug offenders. He felt the mandatory minimum sentencing guidelines were unjust because they undermined the American tradition of justice in which a judge considered all the facts before sentencing. Many times the first-time offenders were low level participants who received mandatory minimum sentences of 5 to 20 years or longer and fines of $50,000 or more. The purpose of the penal system was not only to punish but also to rehabilitate individuals.
Mr. Copeland spoke to the onerous costs involved, and indicated the Federal Court Study Committee, the United States Study Committee, United States Sentencing Commission, American Bar Association, each of the 12 Federal Judicial Conferences and the National Association of Criminal Defense Lawyers also opposed mandatory minimum sentencing. He told the committee in Congress there was a growing number of members who recognized the need to change laws exhibited by HR 957, the Sentencing Uniformity Act of 1993. Additionally, he noted North Carolina, Arkansas, Kansas, the District of Columbia, Tennessee, Washington, Pennsylvania, Delaware, Florida, Louisiana, Texas, Ohio and Minnesota were states moving away from mandatory minimum sentences.
Mr. Scherer questioned the language on page 1, line 10, which listed crimes in NRS Sections 453.3385, 453.339 and 453.3395. These crimes not only addressed the small-time trafficker, they covered anyone convicted of trafficking. Why were such broad provisions included in the bill when the only issue was the small-time trafficker? Mr. Scherer asked. Mr. Copeland explained his desire was only to see the repeal of the mandatory minimum sentencing guidelines on first-time, non-violent drug offenders regardless of the amount of substance found in the offender's possession. Currently, judges were not allowed to consider any mitigating circumstances in any case.
- Nancy Beaupre, representative of Families Against Mandatory Minimums. Ms. Beaupre related a personal experience having to do with a first-time, non-violent offender who was unfairly caught up in the system. She urged immediate action be taken to help repeal unjust sentencing laws.
- Maricela Caballero, representative of Families Against Mandatory Minimums.
Ben Graham, Nevada District Attorney's Association, spoke in opposition to AB 656. Mr. Graham introduced Tom Lean, Chief Deputy, Clark County District Attorney's Office and Lt. Steven Franks, Las Vegas Metropolitan Police Department, who assisted in the presentation. Mr. Lean played a video reenactment of an actual narcotics investigation which involved a person who would be eligible for probation if AB 656 was enacted.
Lt. Franks explained the difficulties of conducting a drug transaction. He also described how clever drug traffickers generally had clean police records. Lt. Franks opined people trafficked in drugs not to support and assist their families, but rather because of plain old fashioned greed.
Ms. Smith questioned the definition of trafficking. Lt. Franks agreed four grams were considered "trafficking." Ms. Smith asked if the bill was passed with, perhaps, a limit of 14 grams whether he would still oppose the bill. Lt. Franks said he would still oppose the bill.
Mr. Lean addressed Ms. Smith's concerns. He revealed law enforcement opposed changing or raising the levels of trafficking; however, they did not want to lose the mandatory sentencing law which provided law enforcement officials a way to reach the higher level drug dealers. He believed if the bill was enacted it would create a disparate legal situation in which the low-level drug trafficker would be sentenced to prison while the major dealer would receive probation.
Lt. Jim Nadeau, Washoe County Sheriff's Office, opposed AB 656. Lieutenant Nadeau introduced Sgt. Dave Butko, Washoe County Sheriff's Office and Detective Larry Lodge, Washoe County Sheriff's Office, officers from the Washoe County Consolidated Narcotics Unit. He said they would be available after the meeting to address any questions committee members might have.
Patricia Justice, Nevada Attorney's for Criminal Justice, spoke in favor of AB 656. She suggested language from AB 677, page 20, lines 20 and 21, should be incorporated into the wording on line 11 of AB 656. She further recommended deleting the words, "or resist arrest. . ." on page 1, line 16, because there were always allegations of resisting arrest in drug trafficking cases.
There being no further business to come before committee, the meeting was adjourned at 10:30 a.m.
RESPECTFULLY SUBMITTED:
CHANDRA PENDERLAND
Committee Secretary
??
Assembly Committee on Judiciary
May 28, 1993
Page: 1