MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
SUBCOMMITTEE ON SENATE BILL (S.B. 192)
Sixty-seventh Session
April 13, 1993
The Senate Subcommittee on Judiciary for Senate Bill 192), was called to order by Chairman Mark A. James, at 3:30 p.m., on Tuesday, April 13, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
SUBCOMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
SUBCOMMITTEE MEMBERS ABSENT:
Senator Ernest E. Adler (Excused)
Senator Mike McGinness (Excused)
STAFF MEMBERS PRESENT:
Bob Erickson, Research Director
Marilyn Hofmann, Committee Secretary
OTHERS PRESENT:
Ben Graham, Nevada District Attorney's Association
John Cummings, Nevada State Education Association
Patricia Justice, Nevada Attorneys for Criminal Justice
SENATE BILL 192: Provides enhanced penalty for crimes committed against minors.
Senator James explained Senator Adler and Senator McGinness were unable to attend the meeting due to another commitment. He indicated there would be one more subcommittee hearing before a report was made to the full committee. He said his desire was to put together a group which can work with persons interested in the bill, in order to find the most effective way to craft legislation which will help protect children. He said there have been two full hearings on the bill at which the committee heard compelling testimony regarding violent crimes committed against children. Senator James indicated testimony was given regarding the large recidivism rate in the area of crimes against children.
Senator James pointed out S.B. 192 deals with penalty enhancement for such crimes and said the committee's concerns are as follows:
(1) That [the legislation] not be so blanket that it apply in every case. The penalty enhancement should not apply if it is a minor committing a crime against another minor. [The bill deals with] adult predatory offenses on children.
Senator James said when the subcommittee can sit as a whole, he will propose the legislation be structured so it will only apply to persons who have reached the age of majority who commit a crime against a minor.
(2) That the law not be too broad and enhance penalties which are already enhanced or are child specific in the first place.
Senator James stated the second proposed amendment would be along the lines of the memorandum to the committee from Dennis Neilander, Senior Research Analyst, which is attached hereto as Exhibit C. He said he wants the subcommittee as a whole to make a decision regarding the enhancement of penalties on child specific crimes.
Senator James referred to the statute which exists in the State of Washington regarding crimes against children and indicated testimony would be heard today regarding that law. A document entitled, "Major Points of Washington Law" is attached as Exhibit D.
Senator James stated the major thrust of the legislation should be to provide a means of protecting the community against people who can be identified as "sexually violent predators on children." He said the law would define such persons and provide the community with notice if those persons were to "come into the midst of the community."
Mr. Neilander explained the differences between Nevada and Washington law:
(1) Both states have a registration provision. The times are a little different between the Washington and Nevada provisions. The Washington provision is 30 days and the Nevada one is 48 hours. Otherwise, they are very similar in the sense the people have to register. In both cases, things such as fingerprints and photographs are submitted to the local law enforcement agency.
(2) The principal difference: A definition in the Washington law of a predatory sexual offender. When those persons on the list are out in the community, there is notice given to the prosecuting attorney in the district where they resided when they committed the offense. The notice contains a number of things which identify the person and the crimes they have committed. The reasoning is to notify the prosecuting attorney that the person is out there and to identify the types of crimes they have committed in the past.
Senator James asked what the notice which is in the law at this time does. Mr. Neilander answered the notice provision appears in Nevada Revised Statutes (NRS) 197A, the criminal repository statute. He said it is available for use by employers in order to check on prospective employees. Senator James asked if there was presently a provision for notice to a community of the release of a sexual offender from prison. Mr. Neilander answered there was not, and the burden of registration was on the offender.
Senator James asked Ben Graham, Nevada District Attorney's Association, to address the subject of the registration law in Nevada. Mr. Graham stated registration is required under Nevada law for nearly all sex offenses, "...including violent offenses, open and gross lewdness, indecent exposure and attempt." He said there was a recent move by the Department of Prisons to create a "DNA base" within the prisons, if the prisoner commits an offense after release. Mr. Graham said this was still in the preliminary stages. He said prior to being eligible for parole or probation, sex offenders must obtain a certificate from an examining authority, indicating they are not going to be a danger to society. Mr. Graham said the registration law in Nevada is very similar to the law in the State of Washington, except it has no notification requirements.
Senator James asked if a public official could use discretion to release information to the community if that official "perceived it to be for the protection of the community," such as is provided by Washington law. Mr. Graham stated he did not believe that was an available option at this time. Mr. Neilander referred to NRS 207.154, which states:
Each person in charge of a jail, hospital, prison, school, or other institution to which a sex offender has been committed, and each judge who releases a sex offender on probation or discharges him upon payment of a fine, shall, prior to discharge, explain to him his duty to register as a sex offender, require him to sign a statement that his duty to register has been explained to him, obtain the address at which he expects to reside upon release, give one copy of the statement to him, mail one copy together with such address to the law enforcement agency having jurisdiction of the area in which he expects to reside.
Mr. Neilander said this requires the notice to go to a law enforcement agency, whereas the Washington law requires that the notice go to the prosecuting attorney. He added the Washington law has a "tiered approach" which applies to offenders who move to the state from another state. Mr. Neilander stated Nevada requires registration in that case, but the notification provision would not "kick in" if the offender were moving into Nevada.
Senator James asked Mr. Graham if he felt a notification provision such as exists in the Washington law would be valuable to law enforcement in Nevada, in order to prevent repeat offenses. Mr. Graham answered he believed the information would be useful, although possibly "cumbersome at first...until they figure out some way to utilize it." He said in the event of a sexual assault or criminal act involving young people, "...if there were a larger pool of known violators to draw from, it might make it easier to ultimately pinpoint a suspect."
The next to speak to the subcommittee was John Cummings, Nevada State Education Association. Mr. Cummings stated the greatest difference and "perhaps the greatest benefit" which could come to Nevada by emulating the Washington law is placing the onus upon the agency releasing the prisoner to register that offender, rather than leaving it up to the offender to do so. He said he did not believe the state could count on the convicted child sex offender to report himself or herself to the proper authorities.
Senator James referred to language regarding "a person who has been charged with a sexually violent offense and has been determined to be incompetent to stand trial...or not guilty by reason of insanity." He asked Mr. Graham if he felt it would be a constitutional provision to require someone who had been found "not guilty" to report. Mr. Graham answered if the person was found to be "not guilty by reason of insanity," the community would need to be advised. He said if that provision could be justified on a constitutional basis, it should be encouraged.
Senator James read the Washington definition of a "sexually violent predator":
A person who has been convicted of or charged with a crime of sexual violence, and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence.
Senator James stated this may refer to a "relatively small group of people" but the crimes are "horrendous." He said if the Nevada legislation could protect one child from "what happened to those kids in Washington," it is worth pursuing. Senator James added:
We have to answer the question in this legislature, 'If somebody has been found guilty by reason of insanity or incompetent to stand trial...that is protecting them, because they cannot form the right intent to commit the crime...that is why they get off by reason of insanity...does the community have a right to know that the person has been released, is in society and can do it again?' That is what this law endeavors to do.
The next to testify was Patricia Justice, Nevada Attorneys for Criminal Justice. Ms. Justice began by questioning why such information would be given to the district attorney's office, rather than to a law enforcement agency, because it would be investigators who would be putting together profiles of similar crimes. She said she agreed with "taking the onus of notification off the offender" and having it placed directly with public officials, but did have a problem with where else the information could go. Ms. Justice stated she did not necessarily agree with releasing information to the public, because she did not "see what good it would do." She continued, "This is an extraordinarily volatile issue; people do not react sanely to this."
Ms. Justice indicated most sexual offenders spend approximately 12 years in prison, and Senator James replied he did not know if this was an adequate time for rehabilitation. He said the whole idea of the enhancement portion of S.B. 192, which would provide for longer sentences, "would be to get them out of here for a long time."
Senator James indicated he believed the public and the schools had a right to know if a sexual offender was released into the community. He stated if his child were molested or killed by such an offender, he would have to ask, "Why didn't somebody tell me this guy was going to get out of prison and be around...." He added the wisdom of the Washington law was that it attempted to identify persons who are "predators" and let the community know. Ms. Justice stated she had a problem with this concept, as follows:
If law enforcement knows that somebody has been released to their community, with a predatory past...they have not been released into the community until a mental health professional agreed they were eligible...if law enforcement knows they are there and someone indicates there is a problem on a playground...[law enforcement] would look to see who was new in the area...and they would have that person under surveillance.
On the other hand, the far greater problem would be if you list them in the paper...and say where they are going to live...how do you expect them to ever get on with their life? If the deal is we want to punish them forever because of what they have done, that is one thing. If we want to say, 'You have done your 12 years...we are willing to gamble on you now...but law enforcement is going to watch you.' If you knew and I knew and somebody was released into our community, there is really nothing we could do about it which is constructive...except cause hysteria.
Ms. Justice stated she believed the person should be watched by the parole board and the law enforcement agency in the community, but be given the type of push necessary to "get back into society." She added, "Sometimes neighbors don't need to know everything." Senator James asked if such a convicted person had a constitutional right to privacy, especially if he had committed an offense "against a little kid." Ms. Justice answered the committee would have to ask itself, "At what point is enough enough?" Senator James indicated the legislation would give discretion to a public agency regarding release of information "to whom they deem necessary to protect the community." He added, "It is not putting a scarlet letter on somebody or gratuitously trying to embarrass them." Ms. Justice said the "key people" will know the person is in the community if the law is changed to place reporting responsibility on the agency who releases the prisoner. Senator James stated he believed the schools should be advised and Ms. Justice disagreed, adding, "What do the schools need to know for?" Senator James answered, "That's where kids are...either at home or in school." He said if they were playing elsewhere, law enforcement must try to protect them. Senator James indicated the school employees need to do everything they can to protect children when they are in their care. Ms. Justice stated she hoped teachers "would always be on the lookout for people hanging around schoolyards." Senator James responded there are always people around the school yard, such as parents waiting to pick up children. Ms. Justice said people are "more sensitive" now regarding things that could happen, but added, "You have to draw the line somewhere."
Ms. Justice stated she did not believe a real problem existed in Nevada. Senator James stated he watches children walking alone in the neighborhood every day and added, "They are sitting ducks." He recalled the case of a young girl who was killed walking home from school and added, "I don't need 150 cases to think there is a problem...just one is all that matters. If we can do something here that will save one person, that is good enough justification...." Ms. Justice responded:
If I could tell you there was a way to write any bill that would guarantee no 10-year-old child in Nevada will ever walk home from school and be killed, I would say...let's sit down and not go home until we get it done. Crime will occur...there will be nothing we can do about that...When you let all of these people know that this person is in their area, I think you are causing...other gratuitous violence in the same neighborhood...that you didn't want to have before. If you have a case where a defendant is killed in a courtroom...imagine what will happen if people just know [an offender] lives in the neighborhood.
Senator James answered there could never be a law which would prevent a child from ever being killed, but he stated he wished at least to "take an incremental step."
Ms. Justice reiterated the law as it now stands makes it very hard to be released from prison once convicted of a sexual offense involving a child. She added persons in the sexual offense unit of the police departments are professionals and are trained to watch offenders who have been released from prison.
Ms. Justice stated with regard to teachers, it should be mandatory for a teacher to become involved when there has been a crime committed against a child, by way of a letter to the judge before an offender is sentenced. She added, "Let the judge...the district attorney...the department of parole and probation...what impact this has had on the child." Ms. Justice said teachers do not do this at the present time. She said the problem is the judge is not made aware of the effect the abuse has had on a child and he should be advised before sentencing is done.
Mr. Cummings responded to the suggestion that teachers have never done this, by saying this is done by teachers when asked to do so. He said he could not imagine any teacher refusing such a request by a judge. Mr. Cummings stated if the legislature felt a law was needed to give teachers immunity from civil lawsuits if they testify or write a letter, then it should be drafted. Ms. Justice said the judges do not usually ask the teachers, because of the heavy caseload. She added perhaps there could be a form letter developed by the district attorney's office which would automatically be sent to a child's teacher prior to the sentencing of an offender.
Senator James asked Mr. Graham to provide statistics regarding the recidivism rate of persons convicted of sexual offenses against children. He said if there was not a problem of reoffending in the state, "it would change the picture." Senator James also requested a response from Mr. Graham regarding Ms. Justice's suggestion involving the district attorney's office as set forth above. Mr. Graham answered he was not aware at this time of the recidivism rate of sexual offenders, but said the general recidivism rate for all crimes was 70 percent. He added he believed it was higher for sex offenders. Mr. Graham indicated he would supply the chairman with more accurate figures. He stressed experts say "sexual offenders who prey on minors are never cured." Referring to the question of having teachers write a letter to a judge, he said it was normally part of a presentence investigation to interview the victim. He added he did not know if the presentencing report included letters from teachers.
Mr. Graham stated he had information which indicated an offender sentenced to 10 years in prison, "...would actually be released before they were eligible for parole...because of the credit system...." He added it was not safe to say "it would be 10 years before they were eligible for parole." Mr. Graham stated, "It is shocking the amount of time even a long sentence can be shortened to." Senator James referred to an article which appeared in the Reader's Digest entitled, "When Criminals Go Free," which is attached hereto as Exhibit E. He said the article speaks of persons who were able to "pile up good time credits" and be released from prison early only to offend again, in most cases killing their victim. Senator James stated the story also contained suggestions regarding laws which can be passed. He quoted,
"Releasing dangerous felons back onto the streets is playing Russian Roulette with innocent lives. No one understands this better than victims or their survivors."
Senator James asked Mr. Neilander to draft the following proposed amendments for the benefit of Senator Adler and Senator McGinness prior to the next hearing of the subcommittee:
1) Narrow the enhancement part of the statute so it will not enhance penalties for minors' crimes.
2) Limit the enhancement. Instead of being an across-the-board enhancement, it will be enhancement for only the crimes that carry enhanced penalties now, where a child is likely to be a victim.
Senator James stated they would also discuss at the next hearing the matter of a proposal to enhance the penalties for "child specific crimes." He also asked for a draft of amendments to the Nevada law for registration of sex offenders which requires persons to register themselves, to add a requirement for the releasing authority. Senator James said for the purposes of this draft, the provision regarding notification to the public at the discretion of the public officials would be eliminated. However, he added, the school system should be notified, with the district having discretion regarding dissemination of information to teachers and other officials.
There was no further testimony presented to the subcommittee, and the meeting was adjourned.
RESPECTFULLY SUBMITTED:
Marilyn Hofmann,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
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Senate Committee on Judiciary
Subcommittee on S.B. 192
April 13, 1993
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