MINUTES OF THE

      SUBCOMMITTEE OF THE

      SENATE COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      May 4, 1993

 

 

 

The Subcommittee of the Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 3:30 p.m., on Tuesday, May 4, 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

Senator Mike McGinness

 

SUBCOMMITTEE MEMBERS ABSENT:

 

Senator Ernest E. Adler

 

OTHER LEGISLATORS PRESENT:

 

Senator R. Hal Smith

 

STAFF MEMBERS PRESENT:

 

Dennis Neilander, Senior Research Analyst

Maddie Fischer, Primary Secretary

Sherry Nesbitt, Committee Secretary

 

OTHERS PRESENT:

 

Steve Sexton, Attorney, Member, Nevada Association for Criminal    Justice

Lindsey Jydstrup, Lobbyist, Nevada State Education Association

James F. Nadeau, Lobbyist, Washoe County Sheriff's Office

 

 

Senator James advised this subcommittee hearing was scheduled to discuss Senate Bill (S.B.) 192. 

 

SENATE BILL 192:        Provides enhanced penalty for crimes committed against minors.  (BDR 15-1675)

 

Senator James stated that at his request, Dennis Neilander, Senior Research Analyst, had prepared a memorandum regarding possible amendments to S.B. 192, copies of which were given to each member of the subcommittee.  A copy of the memorandum is attached as Exhibit C.  Senator James advised the proposed amendment essentially amends the sex offender registration provisions of the Nevada Revised Statutes (NRS) which currently exist, to augment the burden that is on the offender and the operators of institutions to confirm that sex offenders are registered in their communities.  Senator James advised that this information is currently sequestered and cannot be released to anyone other than a law enforcement officer.   The proposed amendment would allow the information to be supplied to the superintendent of schools for his or her discretionary release for purposes of protecting the public.  He stated the first part of the memorandum deals with the separate issue which was the original intent of the bill, to enhance penalties for crimes against children.  He advised enhanced penalties exist for many crimes involving children, and there are a few on the list which currently carry no enhancement of the penalty if the victim is a child.  The ones which seem to pertain, those which are particularly apt for crimes being committed against children, are manslaughter, battery, and false imprisonment.  Some of the other crimes are those such as spring guns, which are not really appropriate.  He stated the issue with the enhancement of penalties portion of S.B. 192 is whether or not this is a time when we can afford to add mandatory enhancements onto what we already have in our prison system.  He stated concern regarding the problems with the prisons.  Therefore, he would propose the committee entertain changing the bill to the registration of sex offenders and eliminate the enhanced penalties portion of the bill. 

 

Mr. Neilander explained the portions of the proposed amendments dealing with registration of sex offenders.  He advised that in addition to the memorandum, committee members had also been given copies of NRS 207.151, the statute which addresses registration of sex offenders.  He stated the concept of the proposed amendments was based in part on a Washington law.  He advised some of the language from that law was used to draft the proposed language for S.B. 192.  Mr. Neilander reviewed the proposed amendments, stating two options are presented in the memorandum. 

 

Mr. Neilander explained the concurrent burden option, proposed to amend NRS 207.151 by adding a new subsection 5.  He advised subsection 5 essentially provides that, not later than 72 hours after the offender has been released, the releasing entity shall contact the agency referred to in subsection 4, to determine if the offender has been registered.  That agency would be the one having jurisdiction over the physical location to which the offender intends to be released.  He stated that if the offender has not been registered, the releasing agency is required to provide all information available to the agency which would be required to registered the offender, pursuant to NRS 207.153.  NRS 207.153 requires photographs, fingerprints, and a description of the person.  Therefore, this option would require that any of those things which are in the possession of the releasing entity be used in order to register the sex offender under the existing law.  He stated the existing law requires the offender to register within 48 hours. 

 

Mr. Neilander advised the second option places the burden only upon the releasing entity, and the offender would not have the burden of registering.  He stated the way the language is proposed, a new section would repeal NRS 207.152 and NRS 207.154, which is the requirement that the offender register him or herself within 48 hours with the local law enforcement agency.  Mr. Neilander read, from page 7 of the memorandum, the new section which would be added.  He advised this section could be limited to the registration of the offender to the address where the releasing agency has reason to believe the offender will be in the community.  This particular provision states the offender must provide notice to each county. 

 

Senator James asked the current ramifications if the offender does not register .

 

Mr. Neilander replied the offender would be guilty of a misdemeanor.

 

Senator McGinness asked if law enforcement must notify any member of the public at the present time.

 

Mr. Neilander replied the victim must be notified, if this has been requested.  He advised currently, the burden to register with the local law enforcement agency is on the offender. 

 

Senator McGinness asked how many offenders would be involved on an annual basis.

 

Mr. Neilander replied he did not have this information, but it could be obtained.

 

Senator James referred to the current regulation that no person other than an employed peace officer or other law enforcement officer can inspect the statement and photographs required.  He requested the legislative intent, and what these registrations were intended to accomplish.

 

Mr. Neilander stated the intent was to notify the law enforcement agency that the person would be in that jurisdiction.  He advised the law enforcement agency would have the photographs, fingerprints and other material at their disposal, which would assist law enforcement in conducting further investigations which may arise with respect to those offenders.  He advised the next section of the statutes is the release of that information.  In concept, the offender has registered themselves pursuant to the law, or are registered under the burden of the releasing entity, are registered anyway.  He advised the second section, beginning at the bottom of page 7, is what will be done with that information.  The conceptual amendment requires the local law enforcement agency to notify the superintendent of schools that a registered sex offender is present in the community.  The superintendent in his or her discretion could notify other school personnel.  The proposed language amends NRS 207.155 to provide for registration, except as otherwise provided in section 1 of the act, and then adds a new section 1 on page 8.  Again, any sheriff who receives a sex offender registration notifies the superintendent of schools which has jurisdiction.  He advised the language "if he reasonably believes that the sex offender may be present in the county" could be eliminated to give more discretion to the sheriff.  In that case the sheriff could notify the superintendent regarding whether or not he thinks the offender is going to be in that county.  The superintendent then may, in his or her discretion, release the information to a school if it is reasonably necessary for public protection.  He advised this language was taken from the Washington law.  He stated the Washington law allows the release of this information to anyone.  This conceptual amendment limits the release only to school personnel. 

 

Senator James advised he wished to determine if the information could be made available to the schools, allowing them to use it to the best of their ability.  If the information could be used by other members of the community who deal with children, this would accomplish his goal.   

 

Mr. Neilander advised this particular amendment would not allow the information to be released into the community, except to school personnel.  However, the language could be amended to allow the superintendent, for example, the discretion of whether to release the information outside of the teaching community.  He read the last sentence on the amendment, "a school employee shall not release any information regarding a sex offender without the approval of the superintendent."  If the superintendent approves, the employee could release the information.  He read the last section, which he advised is an immunity clause, based primarily on the Washington law. 

 

Senator James voiced concern regarding the language ". . .unless it is shown that the person acted. . ."  He asked for and received confirmation that this language is in the Washington law. 

 

Mr. Neilander referred to line 3, section 1 on page 8 of the memorandum.  The language reads, " . . .the offender has committed a sexual offense against a person under the age of 18, . . ."  Therefore, the notification of the superintendent would be limited to sexual offenders whose offenses relate to crime against minors.  He advised this could be broadened to include all sex offenders, however pursuant to the comittee chairman's instructions, he limited this language to crimes against minors.

 

James F. Nadeau, Lobbyist, Washoe County Sheriffs Office, provided testimony.  He advised that under present law a law enforcement agency can only release information regarding a sex offender under certain circumstances, to avoid the public obtaining the information.  As he understands the proposed new language, that information would not be considered confidential information.  He asked if the intent was an attempt to disseminate the information to address people who would go to work for child care agencies, schools and similar entities.

 

Senator James asked if background checks are not done on people applying for these professions. 

 

Mr. Nadeau replied that currently, fingerprints are taken and the school district and child care agencies do background checks on anyone applying for employment.  He advised this type of check is routinely done on anyone seeking employment where children are involved.  He stated there is a variety of things associated with the burden of notification involved in the proposed amendments.  He advised if a sex offender serves his or her time in jail and does not receive probation, that person has no duty to advise the agency of their future whereabouts.  He advised the same applies to state prisoners not subject to parole restrictions.  He stated there may be some concerns regarding how to address this issue, unless there is a compelling requirement to have the offender advise the agency where he or she is going.

 

Senator James advised NRS 207.154 states:

 

            The person in charge of a jail who releases a sex offender on probation or discharge shall, prior to the release, explain to him the duty to register, require him to sign the statement, and obtain the address at which he expects to reside upon the release.

 

He advised the statute requires one copy of the statement to be given to the person being released.  The other copy is mailed to the law enforcement agency in the jurisdiction where the offender is expected to reside.  He stated there is nothing in the statute regarding a continuing obligation to track the person.  He advised under current law, failure to register is a misdemeanor.  The proposed language puts a concurrent burden on the offender and the releasing entity to be sure the person is registered, effectuating the intent of the existing law. 

 

Mr. Nadeau stated his department does not deal with a great number of sex offenders.  Therefore, he did not believe the burden of notification would be heavy, particularly on a local jail.

 

Senator James advised the second part of the proposed language allows for the release of the information to the schools, changing the nature of the confidentiality.  He stated this provision is not necessarily intended to deal with people obtaining employment in child care professions, because background checks occur.  The proposed language would simply make the educational community aware of this person being in the area.  He related the circumstances which prompted the Washington law.  A sex offender was arrested and released many times; however, no one in the community was aware of his presence in the community.   He stated the legislature could wait until something similar occurs in Nevada, or could try to implement the law now to attempt to avoid the situation from occurring. 

 

Lindsey Jydstrup, Lobbyist, Nevada State Education Association, provided oral testimony.  She advised the association is strongly in support of the move for registration of sex offenders.  She agreed that implementing the logistics may take some time, but she believed this is a very important first step.  She stated with the burden of notification only on the sex offender it would be difficult to track how many offenders are actually registering.  She stated S.B. 192 would provide an important extra step, notifying the local agency and the schools that the offender is in the community.  She advised research proves that many sex offenders of children are repeaters, and therefore the community needs protection.  She referred to the question of movement of sex offenders upon release from jail, and how much can be accomplished by notifying the county where they are believed to be going.  She stated she would like to some day see notification of all seventeen counties in Nevada.  She suggested this might be accomplished by some type of computer system or list which could be easily accessed by the counties.  She believed that the notification of schools is critical.

 

Senator James agreed this is a good point.  He stated that, under the option of placing the burden only on the releasing entity, the registration must be transmitted to the sheriff of each county within the state of Nevada.  He asked Mr. Neilander to explain why this does not occur under the concurrent burden option.

 

Mr. Neilander replied he simply wanted to present both options. He stated logistically, if the concurrent burden option was chosen, after the 48 hours the releasing entity would have to register the offender in each county.  Another option would be to require notification of the county to which the offender is most likely to be released.  He advised under the concurrent option, within 72 hours the releasing entity would have to contact each county, as opposed to automatically registering the offender with each county.

 

Ms. Jydstrup stated it seemed Nevada has a sort of luxury with only seventeen counties, making it relatively simple to notify someone in each county.  She believed this would be the most logical option, as it would afford the most coverage. 

 

Senator McGinness referred to the notification of schools, stating Churchill county would not present difficulty, as there is one community.  Regarding Nye county, the school superintendent in Tonopah is responsible for Gabbs, Pahrump, Round Mountain and so forth.  He asked what the superintendent of schools in Clark County, with a large number of schools under his jurisdiction, would do with the information received from the law enforcement agency. 

 

Ms. Jydstrup believed if the superintendent had a listing of the offenders in the community, he or she could, for example, give that information to a school employee who was concerned with someone lurking around the school.  She stated this raises another question regarding how much information would be available through the registration.

 

Senator James advised the information would include the address, a photograph and fingerprints.  He believed that all of this would be helpful information.  Therefore, even in a large school district such as Las Vegas, the superintendent would have the offender's address and the area in which the person will be.  He stated information would also be available regarding the nature of the offense, the record, and whether the person is on parole.  The superintendent could then make the decision that perhaps this is information each principal should receive.

 

Mr. Nadeau advised that the Clark and Washoe county school districts have police agencies on campus.  The superintendent of schools might wish to give the information to the chiefs of police, who could keep it on record.  He stated if an encounter occurred, the information could be available through the various peace officers on campus.  He stated that distribution would be left to the superintendent's discretion.  He believed that the burden to register should be on the offender, and not solely the responsibility of the policing entity.  Because the offender was the one who committed the crime, he or she should have some responsibility to register.  Mr. Nadeau further stated the offender should be subject to some type of sanction if he or she does not comply. 

 

Steve Sexton, Attorney, Member, Criminal Defense Bar and Nevada Criminal Attorneys for Criminal Justice, provided oral testimony in opposition to S.B. 192.  He referred to Senator James' opening remarks relating to the fiscal impact of doubling of sentences regarding crimes committed against minors.  He stated the cost in actual application in the system would be enormous, and is one of the areas to which he is opposed.  He stated in reviewing the statute as currently written, he found S.B. 192 overbroad.

 

Senator James asked for and received confirmation that Mr. Sexton was referring to the enhancement of penalties.  Senator James stated he agreed.  However, he did not find compelling the argument which has been made regarding the fiscal impact of implementing enhancement of these crimes.  He stated this policy has been adopted in Nevada, putting enhancements in place for crimes against the elderly and other various groups.  He advised the statutes show that some crimes against children, such as child abuse, carry a heavy penalty.  He has not received actual statistics regarding sentencing in Nevada.  Therefore, he does not truly know how heavy the penalties are for crimes committed against children.  He stated it was difficult to draw the line at this point, and say the enhancements will be done for everyone else, but not for children.  He stated in his view, these are some of the most heinous crimes and the most needful of the full retributive force of the law, to deter this behavior.  He stated that if deterrence is not possible, at least the enhancement would incarcerate the offender for a long while.  However, if the money is not available, he is willing to concede this point. 

 

Mr. Sexton stated he believed everyone wishes to protect children under 18 years of age, but still questioned what vehicle can be used to accomplish this.  He advised the statutes already include increased penalties against children.  He gave examples of these crimes, including sexual assault on a minor.  He referred to language in S.B. 192 which states " . . .any person who commits a crime . . ."  He stated hypothetically this could be applied to misdemeanor offenses.  He gave the example of a 17-1/2 year old asking a person for a cigarette in a mall.  If the person gives the cigarette to the minor, that person has contributed to the delinquency of a minor.  This crime would subject the person to one year imprisonment in the county jail. 

Senator James advised that in two prior hearings on the bill, similar testimony was received.  He further advised that the goal in prior subcommittee hearings was to limit the enhancements.  He advised that the committee was working with Patricia Justice, a member of the criminal defense bar, representing the Nevada Trial Lawyers Association.  He advised the proposal was to limit the enhancements to specific crimes which currently do not carry enhancements, and which were crimes committed by adults against children. 

 

Senator James recommended to the subcommittee that it recommend  to the committee that enhancement of penalties be dispensed with.  He asked Mr. Sexton if he had any problem with the other part of S.B. 192 relating to the augmentation of registration of sex offenders.

 

Mr. Sexton stated he understood the purposes, but is still concerned about this being the appropriate vehicle.  He questioned whether a police agency would be able to conform with the requirements of notification, should a prisoner not be subject to parole or probation.  He wondered how that agency could ensure that the person would register within 48 hours. 

 

Senator James advised the existing law states that upon the release the offender must register and provide the information previously enumerated, which is then disseminated to the law enforcement agencies.

 

Mr. Sexton asked for and received confirmation that this language was found in NRS 207.152. 

 

Senator James advised the proposed amendment would require the releasing entity to communicate with the entity where the offender is expected to reside, to confirm the registration occurred.

 

Mr. Sexton stated he had no problem with that provision.  He advised, however, that in 13 years of practicing criminal defense through the public defender's office, he had never seen anyone prosecuted for failure to register as a sex offender.

 

Senator James stated this was a very good point.  The law requires the person to register, but there is nothing to confirm whether the registration occurs.

 

Mr. Sexton asked for confirmation that the provisions of the proposed amendments would put the burden on law enforcement to determine if the person actually arrived at the expected area, whether they were still there, and whether or not they had registered within the statutory period.

 

Senator James replied the proposed amendment would only require them to determine if the person had registered. 

 

Mr. Sexton stated he did not believe either organization he represents would have a problem with this provision. 

 

Senator James advised the proposed amendment also allows the information obtained on the person released, which is currently confidential, to be provided to the superintendent of schools.  The superintendent of schools would then have the discretion to release the information for the protection of the public.

 

Mr. Sexton stated this could create some problems of privacy and confidentiality. 

 

Senator James asked if he meant privacy from a constitutional standpoint.

 

Mr. Sexton replied affirmatively, and stated this could violate the constitutional rights of the person involved.  He stated that if, as a result of being convicted, all of the person's constitutional rights are compromised, possibly it would not be a problem.

 

Senator James asked if a person has a reasonable expectation of privacy under the constitution in information that they have committed a sex offense in the past.  He stated that he did not think they would have that expectation, as the information would be a matter of public record.

 

Mr. Sexton stated this could be true, and by the nature of the offense, the right to confidentiality would probably be compromised.

 

Senator James stated that the intent of the proposed amendment simply provides a mechanism of disseminating information to the public to protect the children.

 

Senator James confirmed there was no further testimony, and closed the hearing.

 

Senator McGinness suggested the committee request information from the state prison regarding actual numbers of these offenders who have been released.  He did not believe the burden of notification would be tremendous, but in any event, if one child could be protected, it is worthwhile. 

 

Senator James agreed, and stated he would support a proposed amendment including the concurrent burden.  He reiterated this would place the burden on the releasing entity to do the follow up and that the information be provided to the school district.  He requested that the bill be checked for a fiscal impact on local and state government.  He also requested information regarding whether adding the seventeen county notification would be a substantial additional burden. 

 

      SENATOR MCGINNESS MOVED THAT THE ENHANCED PENALTIES PORTION OF S.B. 192 BE REMOVED, AND TO ADD THE CONCURRENT BURDEN OPTION TO THE REQUIREMENT RELATING TO REGISTRATION OF SEX OFFENDERS.  THE NOTIFICATION WILL BE MADE TO THE COUNTY WERE THE OFFENDER IS EXPECTED TO RESIDE. 

 

      SENATOR JAMES SECONDED THE MOTION.

 

      THE MOTION CARRIED.

 

Senator James adjourned the subcommittee meeting at 4:20 p.m.

 

                        RESPECTFULLY SUBMITTED:

 

 

 

                                                

                        Sherry Nesbitt,

                        Committee Secretary

 

 

 

APPROVED BY:

 

 

 

 

                                

Senator Mark A. James, Chairman

 

 

DATE:                           

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Senate Subcommittee on Judiciary

May 4, 1993

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