MINUTES OF THE
SENATE COMMITTEE ON JUDICIARY
Sixty-seventh Session
May 17, 1993
The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 2:05 p.m., on Monday, May 17, 1993, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator R. Hal Smith, Vice Chairman
Senator Lawrence E. Jacobsen
Senator Mike McGinness
Senator Dina Titus
Senator Raymond C. Shaffer
Senator Ernest E. Adler
GUEST LEGISLATORS PRESENT:
Assemblyman Scott Scherer
STAFF MEMBERS PRESENT:
Dennis Neilander, Senior Research Analyst
Sherry Nesbitt, Committee Secretary
OTHERS PRESENT:
David D. Nicholas, Lobbyist, Nevada Health Care Association
Rita E. Hambleton, Lobbyist, American Association of Retired
Persons
Judy Jacoboni, Lobbyist, Mothers Against Drunk Driving
Robert Rose, Chief Justice, Nevada Supreme Court
Cliff Young, Justice, Nevada Supreme Court
Tim Terry, Deputy Attorney General, Office of the Attorney General
Tim Herber, Administrator, Sierra Convalescent
Helen Foley, Lobbyist, Nevada Nurses Association
Roberta (Bobbie) Gang, Lobbyist, Nevada Women's Lobby, National
Association of Social Workers, Nevada Chapter
David F. Sarnowski, Deputy Attorney General, Chief, Criminal Justice Division, State of Nevada Office of the Attorney General
Victoria D. Riley, Lobbyist, Nevada Trial Lawyers Association
Ben Graham, Lobbyist, Clark County District Attorney's Office
Senator James opened the hearing on Senate Joint Resolution (S.J.R.) 2 of the Sixty-sixth Session.
SENATE JOINT RESOLUTION 2
of the Sixty-sixth Session: Proposes to amend Nevada constitution to remove justices of supreme court from state board of pardons commissioners. (BDR C-971)
Robert Rose, Chief Justice, Nevada Supreme Court, provided oral testimony in support of the resolution. Justice Rose advised that the pardons board is composed of the Governor, the Nevada Attorney General and the five justices of the Nevada Supreme Court. He stated the board is relatively unique, because few states, if any, have this type of structure. He stated this structure was probably formed in the early part of Nevada history, so that when there was not a great volume of business, the various constitutional officers could be used in a variety of functions. He advised the pardons board currently meets semi-annually. The hearing is a jam-packed, full 1 day hearing, and requires 1 day of preparation. He noted that, from the requests he has seen to be on the pardons board which have arguable merit, the board should meet at least twice as many times as they currently do. Currently, 5,000 men and women are in custody. After these persons have exhausted all legal appeals the pardons board is their only avenue of redress. He did not mean to imply that all, or even many, of these prisoners should be pardoned, however some should at least be given a hearing from time to time. He advised that time constraints do not permit five of the seven constitutional officers to meet on the same day and provide these needed hearings. He stated his belief that the justices being on the pardons board is not essential, because they do not bring any skills which are critical or helpful to the analysis of whether a person should be granted clemency. He advised this information often falls more into the categories of psychology, psychiatry, penology, and criminology. He stated the justices know the law, but do not have any expertise in those areas. Secondly, Justice Rose stated the participation of the justices, is generally not decisive or critical. The Governor must vote with the majority, and the vast majority of time, votes "no." Therefore, it does not matter what all five of the justices do. He stated that all of the justices prepare for any entire agenda and possibly their vote will really be significant once or twice. He stated that in times past, this may have been a good system, however, currently the justices' time can be better spent doing the court's work and not participating on the pardons board. He added that the justices will certainly participate to the best of their ability for as long as they are on the board. However, he does not believe their participation is necessary. He advised the resolution states that the justices would be replaced by five people, appointed by law. Should the resolution pass, the appointments of the board's composition would fall to the legislature in the 1995 session.
Cliff Young, Justice, Nevada Supreme Court, provided oral testimony in support of the resolution. He advised the justices are on the pardons board because of the unusual history which developed during territorial days. He stated the territorial governor was criticized for being somewhat too liberal in certain pardons. Therefore, the people drafting the constitution felt that it would be desirable to have the justices, only three in number at that time, serve on the pardons board to rein in any chief executive who might be included to grant pardons or commutations which were not justified. Justice Young stated his research of several years ago indicated Nevada is the only state which has this structure on the pardons board. He stated his belief that early on, the justices may well have been on the parole board as well as the pardons board. This would have been logical, as there were a limited number of cases and the justices were able to perform a role, however, this has changed. He stated another factor which persuades him that the justices should be replaced is the possibility of a conflict. He referred to a case out of Clark County, in which a young man was living in Pahrump, and was charged with shooting his wife. A plea was entered and the young man came up for a pardon, and the justices participated in the pardon hearing. The Nye County District Attorney had been busy, had not followed what was occurring in the pardons board, and did not appear until after the pardons board agreed to commute the case. The district attorney then claimed there had been adverse information which he had wanted to present, but he had been notified only 14 days before the hearing. Justice Young stated this situation presented a political problem. The pardons board agreed to rehear the case and take in the adverse information. Some of the justices felt there was a conflict, and eventually the case came to the court. The majority of the court found no conflict. Justice Young stated that legally this was probably true. Regardless of this, Justice Young stated his belief that there is a conflict, and he foresees increasing problems of that nature arising.
Justice Young stated that the workload of the court has increased tremendously. When the constitution was formed, the court had a few cases. Even as late as 75 or 80 years ago, the court had the luxury of writing 90 page opinions on issues. He advised that today, the court may issue a one page opinion, or even an Order Dismissing Appeal. He stated an attempt is being made to have an intermediate appellate court; however, this will not occur for 5 to 7 years, if the measure passes the legislature. In the meantime, the court's workload continues to grow, as does the number of people in prison who are applying for pardons. He stated that population growth is not going to decease in the future, and therefore, the court's caseload will continue to increase. He advised that approximately 200 to 300 people apply for pardons each year. He stated that, in point of fact, the real pardons board is Susan McCurdy. Ms. McCurdy turns down approximately 95 percent or more of those who apply, without a hearing. Justice Young stated this is a pragmatic way of handling some of these problems, but perhaps some of the people deserve a more thorough hearing. He advised approximately seven or eight persons will be on the agenda at each hearing, and the files on each person are voluminous. The justices spend their time going over these files several days before the hearing. The justices receive many letters from inmates and their supporters, requests from attorneys to hear inmates' cases, and telephone calls. The justices generally try to respond to the letters, at least to acknowledge receipt. He stated that, as Justice Rose pointed out, the net value of the justices' participation is fairly small. The justices cannot grant a pardon because of the Governor's veto power. Justice Young stated he has felt for a number of years that the justices' time is not being wisely used by serving on the board. He agreed that persons in different fields, such as enumerated by Justice Rose, could add more to the deliberations and be able to spend more time considering the applications, giving them the sort of deliberation to which they are entitled. He stated his belief that S.J.R. 2 of the Sixty-sixth Session is an idea whose time has come, and hoped the legislature would approve it this session.
Senator Titus entered the committee at 2:25 p.m.
Senator Jacobsen asked if an application made for a pardon after the parole board has acted on an inmate's request.
Justice Young replied generally an application is made to Susan McCurdy, the secretary. The members of the pardons board can put people on for hearing themselves, and the justices receive frequent requests for attorneys. Possibly the person had been turned down by Susan McCurdy. The justices attempt to submit their requests for hearing 30 days before the date set for the hearing.
Senator Jacobsen asked what the reasons are for the requests.
Justice Young replied the reasons generally follow a pattern. Some state that there has been a showing of remorse, that the inmate has made good progress in the system, or that the inmate has been others religiously active. He stated the justices generally looks for people who show promise. They do not receive all of the background with the applications. Many times a respected attorney will write and state that an inmate has done a good job in rehabilitation, and would appreciate if the justices would put the inmate on the agenda of the pardons board.
Senator Jacobsen stated that if a multitude of requests are received, it sounded as though the system has been left too wide open. He stated it did not seem reasonable to him that some recommendations should come from the parole board.
Justice Young stated the screening probably could be better. He agreed it is a loose system. The justices are so busy with other work. They really do not have time to devote to going into the pardons board cases to the extent they would like.
Senator Jacobsen asked if the board's decision must be unanimous.
Justice Young replied that it does not have to be unanimous. The majority, as well as the Governor, can grant commutation or a pardon.
Senator Jacobsen asked if the Governor may grant a pardon without the board's recommendation.
Justice Young replied that at least three members of the board must recommend the pardon. He advised in some states the executive has total executive clemency. He reiterated that Nevada is the only state in which all members of the supreme court serve on the pardons board.
Chief Justice Rose added that the first part of the board's agenda every 6 months is the health cases. These are inmates who have Acquired Immunodeficiency Syndrome (AIDS), cancer, and other serious diseases. He advised the board is seeing more and more of these cases. These hearings produce testimony as to whether someone should be given a pardon for humanitarian reasons, the seriousness of the condition, if the inmate will be a danger to society, and where the inmate can be located if they leave prison. The board then hears the community cases. These involve persons wishing to have their record expunged, rights restored to carry a firearm, or restoration of voting rights. He stated that none of these instances require a justice for determination. Rather, these cases would be better handled by persons of other talents or expertise. He stated the third category of hearing concerns what are termed hard core cases. These are inmates to whom parole is generally not available. The inmate's sentence is life without the possibility of parole or the death penalty. These persons present a variety of reasons for requesting pardon, many of which are bogus or false. However, with 400-500 applications being received by Ms. McCurdy every 6 months, of which four or five are given to the board, it seems reasonable that more days should be provided for the hearing.
Senator James stated the committee had received a letter from Justice Stephan, who is opposed to the resolution. A copy of this letter is attached as Exhibit C. Senator James stated Justice Stephan raised a point in his letter which was also raised in his concurring opinion in the Kelch case. This point referenced the notion that the legislature would be asking the voters to do away with a constitutionally mandated membership of the court, without putting anything else in place. That would be up to the next legislature to adopt. Senator James stated his belief that the question for this legislature to decide is that the people will be asked to somewhat decrease the accountability of the membership of the pardons board. The justices are all elected public officials and members of the judiciary and possibly do not have expertise in psychology and other areas mentioned. However, the justices certainly have the background in the judicial function which comes up in the pardons board hearings. Senator James asked Chief Justice Rose to address this concern.
Chief Justice Rose asked if Justice Stephan made any suggestions.
Senator James stated Justice Stephan suggested that the court remain the same, and the resolution not be passed. Justice Stephan's point is this has been done since 1864, and he has not seen a perceptible need to change the constitution of the board.
Chief Justice Rose stated that the future make-up of the board had been left to the legislature to enact, leaving the issue open-ended. He suggested the legislature could even pass a bill this session stating the future composition of the board, in the event this resolution passes. He suggested that prison personnel might be consulted to determine who best would serve on the board. He stated his belief that he can be far more effective in doing what he considers his specialty, rather than spending the week necessary preparing for and participating in the pardons board hearings.
Justice Young agreed with Justice Rose's suggestion of getting professional people as replacements on the pardons board.
Senator James stated that Justice Stephen, in his concurring opinion, spoke to the debates in the legislature as to how the appointments came about. Justice Stephen suggested that this was a deliberative decision to make the existing three sets of officers members of the pardons board. His argument was that this was a considered decision, and there has been no charge of failure of the functioning of the pardons board to necessitate the change sought in the resolution. Justice Stephan further suggested that by going to the people to make this change without any suggestions for replacing the justices, the accountability of the pardons board will be decreased. Justice Stephan made the point that any time clemency or a pardon is granted to anyone who has been through the criminal justice system and convicted by a judge and jury, these should be some of the most considered decisions made.
Chief Justice Rose advised he could not respond, as he had not seen the communication from Justice Stephan.
Senator James said he was referring to Justice Stephan's concurring opinion on the Kelch case, in which Justice Rose wrote the dissenting opinion. He stated he had not decided the issue and was attempting to flush out both sides of the argument.
Justice Young stated if the justices did not have the workload, he would have no objection to staying on as a member of the pardons board. He advised he does not feel adequately prepared when he goes into many of the pardons board hearings, because of the mass of material, much of which is not received until a few days before the hearing. He added that along with this, the court has a burgeoning caseload of about 1200 cases per year, and rising by almost 100 cases per year. The state is exploding in population, which will increase the cases in the supreme court. Justice Young stated his belief that there are numerous reasons for consideration of the resolution. He stated he does not think the justices are indispensable on the pardons board, yet no one else can do the work they have been elected to do on the court. This work is being neglected to carry out something which was conceived in 1864, to prevent the territorial governor from granting too many pardons.
Senator James agreed that the time constraints of the justices is the best argument in favor of the resolution. He sympathized fully with the workload of the court and supported the measure that proposes the intermediate appellate court. He stated his belief that Nevada will need the appellate court, probably well before the people have the opportunity to vote on the measure. He stated his belief that, looking at S.J.R. 2 of the Sixty-sixth Session in the abstract, apart from the huge duties of the justices, the resolution is something on which the legislature should tread carefully.
Senator Titus advised a bill draft had recently been requested for Senator Glomb, relating to the composition of the parole board being more diverse and bringing in persons with more expertise. Senator Titus suggested this might be some language which could be looked at if the five member selection of the pardons board is left to the legislature. Senator Titus referred to the supreme court being overworked, and yet the public rejecting amending the constitution to create the appellate court in the 1992 election. She asked the court's opinion regarding the possibility of expanding the court from five to seven members, and possibly meeting in panels.
Chief Justice Rose replied that the court is split on this issue. He advised the majority has traditionally been that the court felt it was cleaner and better to have the intermediate appellate court, where some cases will go and dead end, and the major cases will proceed to the supreme court. This proposal has been defeated twice. He stated the court did not do a very good job of selling the idea to the people. Also, the judiciary and the bar experienced difficulties in 1992 which Justice Rose felt spilled over into the situation. Thirdly, he stated his belief that in the explanation of the 1992 proposal, it was stated that the appellate court would cost $3 million. The voters did not wish to sign up for any more costs at that time. Chief Justice Rose stated it was a difficult time for the proposition of the intermediate appellate court. He advised that the constitution does permit the adding of two additional justices, and would not require a vote of the people. He further advised there is some merit in having two panels of justices, one each in the northern and southern part of the state. The chief justice would be the administrative head, substituting when there is conflicts on the panel. For the major issues of the state, or when either panel votes to have the seven members sit en banc,the system used by the circuits courts of appeal. Chief Justice Rose advised this system works very well. He stated he is in favor of the intermediate appellate court. However, it appears this will not be instituted for a long time, and is not definite. He advised he is coming around to the position that he would just as soon come back to the legislature in the 1995 session and request the addition of two justices.
Justice Young advised another possibility, one which would probably be acceptable to the voters in Nevada, would be to do away with appeals, as is done in the state of Virginia. Currently, an appeal in Nevada is a matter of right in every case coming out of the district courts. In the state of Virginia, appeal is only available by petitioning for review or for certiorari, as with the United States Supreme Court. He advised the court has attempted to explore all possibilities, within the confines of the fiscal situation, to handle the growing number of cases.
Judy M. Jacoboni, Lobbyist, Mothers Against Drunk Driving (MADD) provided oral testimony in opposition to S.J.R. 2 of the Sixty-sixth Session. She stated MADD opposes the resolution mostly because of the reasons stated in Judge Stephan's written testimony. She stated MADD believes the members of the pardons board have not changed since 1864, therefore why should a change be made now. She advised another bill, Assembly Bill (A.B. 488), referred to as the compassionate leave bill, is currently being considered in the legislature.
ASSEMBLY BILL 488: Provides for expedited release from prison of terminaly ill or physically incapacitated prisoners. (BDR 16-1712)
Ms. Jacoboni stated it makes victims of crime very anxious when the composition of the pardons board may change also. She stated, regarding A.B. 488, instead of the pardons board meeting and the terminally ill prisoners coming before the board in person, a telephone poll would be taken. She stated that MADD already opposes this bill, but if the composition of the board is going to change as well, this is too much change at once. Regarding S.J.R. 2 of the Sixty-sixth Session, she stated MADD also objects to the provision on lines 13 and 14, "no justice of the supreme court, district judge, or other judicial officer may be designated as a member of the pardons board." She advised MADD feels judges may be more aware of victim issues. Of the categories of professionals mentioned by Justices Rose and Young, MADD does not feel any would be aware of victim issues. She advised the word "victim" has not been mentioned previously, and she believes this was a real concern. She stated the pardons board always wants to hear from victims. With the justices off the board and no possibility of replacing them with judges, MADD is wondering how many more victims' rights will be violated.
Senator Shaffer asked if MADD does not want to give the people the right to vote on the resolution.
Ms. Jacoboni replied that MADD feels that the resolution, in its present form, should not come before the people. She advised the resolution should at least state who will replace the justices.
Senator James advised that the people would vote on the resolution to remove the justices, but would not vote on the people replacing the justices. The members of the board must be put in the constitution. Even if a bill, contingent on the passage of the resolution, enumerating the new members of the board was proposed, a future legislature could change the board members.
Ms. Jacoboni confirmed Senator James' supposition that MADD is much more comfortable having the justices on the board, than having an unknown factor.
Senator James confirmed there was no further testimony regarding S.J.R. 2 of the Sixty-sixth Session, and closed the hearing.
The hearing was opened on Assembly Bill (A.B.) 73.
ASSEMBLY BILL 73: Prohibits criminal neglect of patients in medical facilities. (BDR 15-501)
Tim Terry, Deputy Attorney General, Nevada Office of the Attorney General, head of the Medicaid Fraud Control Unit, provided testimony in support of A.B. 73. He stated the genesis of A.B. 73 coincides with the creation of the Medicaid Fraud Control Unit (MFCU). He advised when the MFCU was created by the 1991 legislature, it was given the authority to investigate and prosecute allegations of patient abuse and neglect in facilities which receive funding under Title 19 or the Medicaid program. He advised in 1991, there was no statute which defined or penalized patient abuse or neglect. Since that time, the Attorney General's Office has been doing their best to review and work in that area, under the Elder Abuse and Neglect Laws, however the attorney general's Office does not feel these laws are sufficient. Therefore, A.B. 73 is the proposal for a specific statute dealing with patient abuse and neglect. The bill, in its present form, has been modified substantially from the original proposed, and now takes the format of a criminal neglect framework. He stated the attorney general has two problems with the bill in its present form. The first deals with the definition of "professional caretakers " on page 2, beginning at line 16. He stated in the present form, professional caretakers would include certified nursing assistants, registered nurses, licensed practical nurses, and the administrator of a facility. The definition does not include the owner or an ownership entity of a facility. Mr. Terry stated the attorney general's Office believes that category should be included within the definition of the professional caretaker. He stated the attorney general's second objection deals with the language which has been added on lines 31 and 32 on page 2. This is an amendment to the Medicaid Fraud Control Unit jurisdictional statutes, and now would impose upon the attorney general the obligation to make sure that the attorneys, auditors and investigators in the unit have expertise in nursing, medicine and the administration of medical facilities. The attorney general believes it is inappropriate to have those kinds of mandatory qualifications imposed upon employees within the office, and requests that this proposed amendment be stricken. In the alternative, the qualifications of personnel could be discretionary with the attorney general.
Mr. Terry explained how the Medicaid Fraud Control Unit currently operates. The staff includes one registered nurse and one licensed practical nurse, who work in the area of patient abuse and neglect. When further expertise is needed, a consultant or expert witness is engaged to assist the Attorney General's Office in review of the case, or in testifying at a preliminary hearing or trial.
Senator James asked for and received confirmation that A.B. 73 went to an assembly subcommittee, where the bill was studied extensively. He asked for and received confirmation that owners of facilities were listed as caretakers in the original bill. He reconfirmed the change requested by Mr. Terry on lines 31 and 32 of the bill, and received confirmation that the assembly had added the mandatory qualifications to the original bill. Senator James asked if the requirements in this section would be satisfied by requiring training for these people.
Mr. Terry stated he did not know if the broad requirements could be satisfied in this way, because medicine and the administration of medical facilities is included.
Senator James asked for confirmation that Mr. Terry saw no way to comply with this requirement.
Mr. Terry stated that, practically speaking, it would be impossible for the attorney general's Office to meet these standards. He stated the Attorney General feels it is inappropriate to have such rigid requirements imposed by statute upon the employees of the office.
Senator Adler asked if physicians are caregivers under the amended version of the bill.
Mr. Terry replied the current definition includes anyone who holds a license under Title 54 of the Nevada Revised Statutes (NRS). That title contains a laundry list of a number of different professions, including physicians, nurses, nursing assistants, and physical therapists. It includes anyone with hands-on relationships with patients, involved in their direct care, daily supervision, meals and so forth. The list also includes architects, contractors, professional engineers, surveyors, and many other people not involved in the area of health care. The list does not include owners, who make decisions with respect to staffing. Mr. Terry stated the Attorney General's Office feels that now, given the significant elements of a criminal neglect action, as proposed in A.B. 73, no one should be left out regardless of their identity or structural organization. If the person has committed criminal neglect, he or she should be responsible and not accepted out or immunized because of the position they hold.
Senator Adler asked if someone, for cost savings for example, understaffed a care facility, which resulted in neglect under A.B. 73, would that person be immune.
Mr. Terry replied that is correct.
Senator McGinness asked if Medicare regulations in any way include the owner of a facility.
Mr. Terry replied that Medicare, as part of the provision of funding, regularly monitors facilities to see if they are in compliance with various federal requirements. If the facility is not in compliance they are given reports of deficiencies and required to correct those deficiencies within a period of time or risk loss of funding. He stated, however, there are no federal statutes or federal Medicare regulations which would criminally define or penalize patient abuse or neglect. That is a category and area of the law left up to the various states.
Senator McGinness asked if Medicare investigates fraud, or is that left up to the states.
Mr. Terry stated that Medicare and Medicaid are different programs. Medicaid is the state administered programs funded by the federal and state governments which provide services to the medically indigent. Medicare is the program which provides mostly for senior services.
Senator McGinness wanted to make sure there would not be a duplication to something Medicare does. Also, he wondered if they make their investigators or auditors have some sort of medical expertise.
Mr. Terry stated to his knowledge, this was not the case. He stated that Medicare's investigations would be different than the typical law enforcement investigation in which the Attorney General's Office is involved.
Senator McGinness asked for and received confirmation that Medicare's main concern is more administrative and financial. He asked if it would be better to include in the language, a person who has expertise in nursing, medicine, or administration. He stated as the language currently states, a person would have to possess all three areas of expertise, and asked if this was intentional by the assembly.
Mr. Terry stated his understanding that the language was lobbied for by the nursing home groups, to be sure the Attorney General's Office did not run amuck in this area. He reiterated that this would be impossible for his office under any circumstances, as they would have to retain the services of an expert in the different areas. The areas of expertise are beyond the work background of any of their employees.
Senator Titus stated that the 1991 legislature worked very hard to put in place the MFCU. She asked Mr. Terry to share with the the committee some of the accomplishments of the MFCU since its inception.
Mr. Terry stated the accomplishments have been primarily in the area of provider fraud, which is the other half of their work. He advised that to date, they have achieved over six convictions and over $500,000 in fines and penalties, compared to about $50,000 in General Fund expenditures. He advised they have had a problem in the area of patient abuse and neglect because of the deficiency in the law. The first case they brought was dismissed because of the problems encountered in attempting to prosecute the administrator and corporate owner of a nursing home in Carson City. This case made it clear to the Attorney General's Office that the law needed to be better defined and particularized. He advised the MFCU staff has grown from the initial start-up number of four to eight. They have opened over 50 criminal investigations, not only in provider fraud but in misappropriation of client trust accounts and patient abuse and neglect.
Senator James was surprised that these provisions are not already covered under the criminal statutes. He recalled Mr. Terry's answer to Senator Adler's question that someone who is not included in the definition of caretaker would be immune from liability. He asked if there does not exist a reckless endangerment law which states placing a person in unreasonable risk of harm is prosecutable. He also asked, regarding the case Mr. Terry mentioned, under what law did the Attorney General's Office seek to prosecute the owner of the facility.
Mr. Terry advised that no one was more surprised that Nevada had no law against patient abuse and neglect than was he. After the MFCU started, he realized they were to prosecute these cases and did not have the law to do so. He replied to Senator James' question regarding the case referenced, stating the elder abuse and neglect law was used. He advised there are two problems with this law when trying to apply it to the area of long-term nursing home patient abuse or neglect. One requirement of elder abuse and neglect is that the victim must be over 60 years of age. This does not apply to every victim of patient abuse or neglect. He advised that, for the particularly harmful incidents of patient abuse or neglect, those causing substantial bodily injury, the only penalty provided in the elder abuse statute is a term of imprisonment. The majority, if not the universal holding in the courts is that if the only penalty provided by statute is a term of imprisonment, it cannot be applied to a corporation, because a corporation cannot be imprisoned. He stated because there was no and/or financial fine, it had the effect of immunizing a corporate owner from liability from abuse or neglect. A.B. 73 continues that deficiency in its present form.
Senator James asked for confirmation that, this is because the bill does not list "owner."
Mr. Terry advised the definition of Title 54, "Licensees," fails to include the owner or operator of a facility.
Senator James asked for and received confirmation that this is the deficiency Mr. Terry is speaking of, and not the fine or penalty.
Senator James asked for and received confirmation that elder abuse was the only charge brought in the case referred to by Mr. Terry.
Mr. Terry advised that when A.B. 73 was originally proposed, it talked about abuse and neglect. In its present form it has been narrowed just to criminal neglect. He wanted the committee to know that in cases of abuse, where a victim is intentionally harmed, for example, struck or kicked, the elder abuse statute would still have to be used to attempt to prosecute.
Senator James asked why the person could not be prosecuted for some other crime, such as assault or battery.
Mr. Terry replied those are avenues they will probably have to pursue.
Senator Adler advised the Attorney General's Office has limited jurisdiction and therefore could not prosecute. The crimes mentioned would be outside of their statutory authority.
Mr. Terry stated a local district attorney would have to prosecute the case under those laws.
Senator James asked for and received confirmation that the Attorney General's Office does not have ancillary jurisdiction.
Mr. Terry added the MFCU jurisdiction is rather narrowly drawn. He advised it is only provider fraud and patient abuse or neglect.
Senator James stated that, in his opinion, this was a case of judicial inefficiency. He stated a change is needed if a charge can be brought under a specific statute, but the law denies the ability to include a lessor included offense or other offenses which are part and parcel of the same conduct.
Mr. Terry stated there is also a difficulty regarding the specific intent crimes such as assault or battery. In those cases, someone must have specific intent to harm another person. He did not know if this necessarily dove-tails into the area of abuse or neglect of the elderly. People do not always intend to strike, kick, or shoot another person. Because the elderly are a vulnerable population, there are acts which can be committed against them in care facilities, from which the elderly need protection.
Senator James advised assault and battery are not specific, but are general intent crimes. Only the intent to force needs to be shown. He asked Mr. Terry if he was asking that sections regarding abuse be put back into A.B. 73.
Mr. Terry replied he was not. He reiterated his office would use other sections of the law in order to continue to prosecute under those circumstances. However, those prosecutions will not be within the framework of patient neglect.
Rita E. Hambleton, Lobbyist, American Association of Retired Persons (AARP), provided testimony. She stated AARP would support A.B. 73, as currently written or with amendments. She advised the bill is not as strong as AARP would like, but something is needed in this area. She advised that there have been cases of patient neglect in nursing homes in the state for which there has been no remedy.
Senator Jacobsen asked for Ms. Hambleton's suggestion as to making the bill stronger.
Ms. Hambleton stated AARP would agree with several suggestions made by Mr. Terry. She reiterated the AARP would also support the bill as currently written.
David D. Nicholas, Lobbyist, Nevada Health Care Association (NHCA), provided testimony in support of A.B. 73. He advised NHCA is the association of the licensed health care facilities in Nevada. He stated the NHCA supports the bill as written. He advised there was difficulty in the assembly in putting a consensus together. Therefore, the subcommittee, chaired by Assemblyman Jim Gibbons, spent a good deal of time and effort attempting to gather everyone's testimony. As a result, the bill was passed unanimously in committee, and did well on the assembly floor as well. Mr. Nicholas advised this was due to the compromises. One of the main problems was not the establishment of fines, which now exists and is supported by NHCA. The problem had to do with going to the board members and owners of the facilities. He advised the essential argument, coming essentially from cities and counties, was that in the case of rural hospitals, county commissioners are the governing board, or board of directors of that group. Therefore, the line of liability could go into the offices of those people. This was felt to be far too general to handle the problem. Mr. Nicholas advised this was one reason for so much debate involving the definition of a caregiver. It was felt that people licensed to give care were the ones who should be approached in any situation in which there was a question. He stated there is no doubt that in dealing with the elderly, there are always going to be, as long as people are unable to take care of themselves, questions as to whether or not treatment is correct. He advised there are often disagreements between physicians, which was the basis for one suit brought in 1992 by the fraud control unit. The disagreements must be dealt with, and a legal basis of doing so is needed. He stated it is the opinion of the NHCA that an attempt should be made to prosecute everyone, but to be more selective. His organization would like to see training of the MFCU staff. He stated there is nothing more confusing than a layman making decisions as to whether or not a specific area is efficient or correct. He stated training would remove many misunderstandings. Mr. Nicholas noted a number of the functions which the MFCU would like to take at this time are presently being adopted by aging services, the Department of Human Resources Bureau of Health Facilities, and other agencies. A centralization in the fraud unit is occurring. Mr. Nicholas stated he did not question the motivation or the need for more stringent penalties. He stated he does sometimes question whose responsibility it is to fulfill the functions required.
Senator Adler disagreed with not prosecuting any owner of a facility. He stated this would possibly be acceptable in the case of simple negligence. However if, under the civil rights standard at least, there is a deliberate indifference to a serious medical need, he did not believe the owners should be exempt. He stated this is a higher standard than that in the statute, but there should be some responsibility.
Mr. Nicholas replied that in any case of criminal activity, prosecution of all parties responsible should occur.
Senator Adler stated if there is deliberate indifference by a board of directors to serious medical needs, all involved should be prosecuted. He gave the example of an occurrence repeating itself fives times, finally resulting in the death of an elderly person. He did not see how the owner of the facility could not be responsible to mitigate that action.
Mr. Nicholas asked when the Department of Administration must make a budget cut because the funds are not there, and the cut is made in areas of direct health care, is there a line of responsibility for cutting those funds if it can be traced, if a certain negative health outlook was the result. He stated this is farfetched, but he mentioned it to suggest that the line of responsibility is tenuous, and varies according to the profession. He stated the responsibility would appear to lie with the people who had hands-on.
Senator Adler disagreed and stated this is laying the buck off on the lower level people, making them responsible for something they may not have caused. He stated that if an owner deliberately and repeatedly under-staffs a facility, causing injury to patients, that person should be responsible. The person on the staff would not have any part in the decision to under-staff the facility. Senator Adler stated this sounds as though the desire is to let all the rich people off the hook, and he strongly disagreed. He stated, for example, in the Department of Prisons, if the warden deliberately under-funds medical delivery systems in the prison, he or she would be sued and would be liable.
Mr. Nicholas stated this also applies to people in the caregiving industry. He advised there are regulations dealing with everything the state requires in a nursing home. There are a constant series of inspections to confirm these things are done. He stated that now, the state has the ability to fine a facility if it does not adhere to the rules and regulations. He advised Senator Adler's concern is covered under regulation. He assumed that Senator Adler knew that the nursing home industry is the most regulated in the United States, except the nuclear industry. Inspections come in from at least five departments in the state of Nevada on a continuing basis.
Senator James advised there would be a subcommittee formed to further study this issue.
Senator Jacobsen asked how often the health care facilities are inspected, by whom, and how the report would originate.
Tim Herber, Administrator, Sierra Convalescent, replied to Senator Jacobsen's question. He advised care facilities are routinely inspected by seven to eight different branches of government. Most of the agencies are state, and some are federal. He stated the facilities are not notified of the inspections. There is an annual survey done by the Bureau of Health Services. The facilities know approximately when this will occur, as licenses are renewed once per year and a new survey must be done within a certain number of days before or after the renewal. He stated the inspectors can enter a facility on any given day to do a survey, inspection, or an investigation of a complaint. He advised there is someone from each governing agency, in each facility in Nevada, on the average of once every 3 weeks. These inspections can occur on a portion of the facility, or the entire facility. He stated there is someone in his facility on an average of once every 13 working days.
Helen Foley, Lobbyist, Nevada Nurses Association (NNA), testified in support of A.B. 73. She advised she worked for several weeks with Assemblyman Gibbons on this issue. She stated many things in the original bill seemed glaring to the NNA, whereas someone could be accused of patient abuse without intending to do so. As the bill deals with nurses, Ms. Foley advised there is an issue regarding misuse of medication. This misuse could mean simply that there was a violation of a physician's order. She advised nurses violate physician's orders all of the time when the nurse sees that the condition of a patient makes it inappropriate to administer drugs at that time. The NNA is aware that the Attorney General's Office did not mean to have the bill as broad as it was. Ms. Foley stated there were issues dealing with emotional abuse which seemed too far reaching. She advised the majority of the bill deals with written and oral reports, more than getting to the heart of the issue which is willful abuse of a patient, which should be punished. She stated the NNA's belief that this is what A.B. 73 does. She offered her cooperation in working with the subcommittee on these issues.
Senator Jacobsen asked if the medical facility for the prison will have the same type of inspection as would an ordinary facility.
Ms. Foley replied that this facility would have the same inspections and would fall under the same jurisdiction as other facilities. She referred to the language of the original bill:
. . .and any other person may make such a report if he has reasonable cause to believe that a patient has been abused, mistreated or neglected.
She stated this was a very broad base, stating that anyone, any time, could declare anything.
Senator James advised that Senator Titus would chair the subcommittee, and Senators Adler and McGinness would also serve to attempt to clarify the issues raised. He confirmed there was no further testimony regarding A.B. 73, and closed the hearing.
The hearing was opened on Assembly Bill (A.B.) 525.
ASSEMBLY BILL 525: Extends statute of limitations for prosecution of sexual abuse of child under certain circumstances. (BDR 14-1500)
Assemblyman Scott Scherer presented testimony as the sponsor of A.B. 525. Assemblyman Scherer advised A.B. 525 would extend the statute of limitations to 10 years after the age of majority of the victims in those cases where the victim did not know or could not reasonably have known of the abuse. He advised testimony in the Assembly Committee on Judiciary reflected that many of these victims repress their memories of these events, especially when family members are involved. A.B. 525 would require a showing that those memories had been repressed. He advised the bill resulted from a constituent of his whose wife had been the victim of sexual abuse as a child by her father or step-father. The woman wished to press charges against the man and was told by the district attorney that because she was over 21, there was nothing they could do to help her. Assemblyman Scherer advised that, since that time there has been a similar bill extending the statute of limitations for civil actions in similar circumstances. A.B. 525 would extend the criminal statute of limitations to the same as the civil statue. He suggested if, in this case, there is a problem with lengthening the statute of limitations, the problem falls on the prosecution. He advised that in a criminal action, unlike a civil action, it is the prosecution's burden to prove the case beyond a reasonable doubt, if memories have faded or there are other evidentiary problems. He did not believe the provisions of A.B. 525 will unduly burden defendants.
Senator Jacobsen asked if the memory of the victim would not be less the longer the period of time was extended to prosecute the case. He wondered how the victim would recall the events after so many years' time; and stated his belief that 1 to 2 years after the event would be long enough to wait to file charges.
Assemblyman Scherer agreed that it is possible for memories to fade with time, and choosing the correct time to cut off these claims is certainly a policy decision. He stated much testimony received on various bills on this subject has shown that many victims have a very difficult time, especially when it involves a parent or other close relative, in bringing these actions. This is especially difficult to do before the victim is mature and stable enough to deal with the memories which have been repressed, and then to have the courage to go forward to the authorities and report the abuse. He agreed if the memories have faded, the case will be that much more difficult for the prosecution, and the case may be unprovable. However, in the cases where there is sufficient evidence, the authorities will be able to pursue those cases.
Senator Jacobsen asked what would be the maximum sentence on this type of case .
Assemblyman Scherer stated it is a felony in most cases. He was not sure if there is a specific penalty or if it is a 1 to 6 year sentence.
Senator James stated the Senate Committee on Judiciary had heard much testimony regarding the 10 year statute of limitations regarding Assembly Bill (A.B). 68.
ASSEMBLY BILL 68: Extends time in which action for damages for injury arising from sexual abuse of minor may be commenced. (BDR 2-827)
He asked for confirmation that Assemblyman Scherer's position regarding A.B. 525, because this deals with a criminal statute carrying a greater penalty than a civil violation, was that the criminal penalty is made up for because the burden of proof is higher. Therefore, there is less likelihood of convicting someone in the criminal context because of the long statute of limitations. Even if 10 years have elapsed, there still has to be evidence to prove the crime beyond a reasonable doubt.
Assemblyman Scherer confirmed this was correct. He added that not only is the burden very high, but in addition there are a number of other procedural and constitutional safeguards which protect defendants, which are not available in a civil action. He gave examples of these safeguards.
Senator James asked for and received confirmation that a defendant cannot be forced to testify in a criminal action, therefore negating admission of the crime in that fashion.
Senator Titus stated in A.B. 68, the statute of limitations was extended from 3 to 10 years. The suit must be commenced within 10 years after age 18 or an age at which the victim should reasonably know what happened. Therefore, the age limit of age 28 was not imposed. A victim could discover through counseling at age 30 that these events had occurred, therefore charges could be filed before the victim turned 40. Senator Titus confirmed that A.B. 525 puts an absolute limit of 10 years after age 18.
Assemblyman Scherer confirmed this was correct. He stated many children live in the abusing household until after the age of majority.
Senator Titus asked for and received confirmation that this bill is much less flexible than that for civil liability.
Senator Jacobsen asked if the person committing the crime would be tried on what the crime was at the time it was committed or when the case was tried. He also asked if the criteria used would be that in effect at the time the crime was committed, or that in use at the time of the complaint.
Assemblyman Scherer replied that A.B. 525 would only apply to sexual abuse of a child. He advised that it would have to be a crime at the time it was committed under the standards at that time in order to be prosecuted.
Senator McGinness referred to the fiscal note, and asked if a determination was made as to the amount.
Assemblyman Scherer stated to his knowledge an amount had not been determined. He stated his belief that this was the standard fiscal note placed on most criminal bills which enhance a penalty or extend time for prosecution. He stated he did not believe there would be a large number of these types of cases.
Roberta (Bobbie) Gang, Lobbyist, Nevada Women's Lobby, National Association of Social Workers, Nevada Chapter, provided oral testimony. She stated these organizations support A.B. 525 They feel that in these types of crimes, allowing the victim time to deal with the discovery of the assault and then to be ready for prosecution is an important factor.
Senator Jacobsen asked what Ms. Gang would consider the criteria to be followed.
Ms. Gang stated the burden of proof is still the same, and it must be proven that a crime occurred.
Senator Jacobsen stated his understanding that visible evidence can be seen. He wondered what evidence is discovered by a victim 10 years after the act occurs.
Ms. Gang replied an actual understanding of what occurred to the person takes place. Social workers have previously testified regarding victims suppressing this type of crime in their minds, and the victims do not began to deal with them until much later in their lives.
Senator Jacobsen stated it was difficult for him to understand this concept. He stated his belief that the more a person would think about an incident, the worse it would seem. He stated he would want anyone who has been abused to be able to prosecute the perpetrator. His concern was that the testimony in court would be one person's word against the other.
Ms. Gang stated this is where the burden of proof comes in. Her organizations are saying the case should be allowed to proceed past the time that is currently allowed. She stated she did not believe this bill changes the burden of proof, but only extends the time in which to file the complaint.
Senator Adler referred to NRS 432.B 100 which also includes statutory sexual seduction. He explained this statute deals with statutory rape where, for example, an 18 year old has sex with a 16 year old. It would then allow the 16 year old to bring a criminal action before she turns 21. He asked if this is the intention of A.B. 525.
Ms. Gang stated she did not know the answer to this. She stated her belief that A.B. 525 deals more with the sexual abuse of children. She did not know why NRS 432.B 100 would be included in A.B. 525.
Senator James stated statutory sexual seduction would not be included in A.B. 525. He advised if, by definition, the crime involves consensual conduct, the victim would reasonably know that it happened, and the statute of limitations would only extend to age 21, as it is now. He stated that all A.B. 525 does is extend the statute of limitations for the type of sexual abuse in which the victim has to discover the assault took place.
Senator Adler asked for confirmation that A.B. 525 does not include NRS 432.B 110, which includes solicitation or engagement of prostitution, photographing, filming or videotaping, posing modeling and so forth. He stated his belief that some of these violations should be included, especially if it is a young child.
Ms. Gang advised that her organizations did not request the bill, and are only interested in supporting the concept in the bill. She had not discussed whether or not the bill should include other things.
Senator James confirmed there was no further testimony regarding A.B. 525. He closed the hearing, and advised the bill would be brought up for discussion at the close of the meeting, at which time Senator Adler's concerns would be addressed.
The hearing was opened on Assembly Bill (A.B.) 393.
ASSEMBLY BILL 393: Permits imposition of sentence without presence of defendant under certain circumstances. (BDR 14-1311)
David F. Sarnowski, Deputy Attorney General, Chief, Criminal Justice Division, State of Nevada Office of the Attorney General, provided oral testimony. He advised his department submitted A.B. 393. His office administers the extradition fund for the state of Nevada in instances where persons must be returned to Nevada to conclude criminal proceedings against them. Significant amounts of money are paid out by the state to accomplish this task, approximately $700,000 for the last biennium. He advised the Extradition Coordinator for Nevada is Ms. Beverly Saucedo. He advised A.B. 393 touches on extradition, and is intended to be a money saving device. He stated the bill would allow a defendant, at his or her option, who is incarcerated in another state, to waive his or her statutory right under Nevada law to be present for the imposition of sentence. There is also a constitutional right under the federal constitution to make a statement to the sentencing judge. The person, under this provision, could voluntarily waive that right as well and be sentenced in Nevada. He advised that generally speaking, a situation of this type arises when a person enters a plea of guilty or proceeds to trial and is found guilty, and then absconds from this jurisdiction and is incarcerated elsewhere. This incarceration could result from a crime committed before the Nevada proceedings or for a new crime. He stated A.B. 393 would eliminate bringing the person back an extra time unnecessarily in instances where the person is willing to waive that right. It would be totally at the option of the individual, with the advice and assistance of Nevada counsel. He advised there was a great deal of debate on this issue in the assembly. He wanted to make it clear for the record that if the defendant chooses not to waive his or her statutory or constitutional right to be present before the sentencing judge to exercise their right to allocution, the state would respect that choice. Mr. Sarnowski advised this is not a novel type of law. He provided a copy of the California Penal Code section 1193, which is attached as Exhibit D. He advised this code was enacted some 6 or 7 years ago whereby any defendant has the statutory right to waive his or her personal presence for the imposition of sentence. He advised he has not extensively reviewed other state statutes, but noted in his research there is at least one state which expressly prohibits such a waiver. That state is Arizona, and the prohibition is by court rule. The court rule requires the court to advise the defendant of his or her appellate rights at the conclusion of the sentencing proceeding. He advised there is no such requirement under court rule, statutory or state constitutional law or common law in the state of Nevada. He stated essentially, the ability to exercise this mechanism rests with the prisoner incarcerated in another state, who otherwise could be upset in the surroundings they are in when they are returned to the state of Nevada. The Nevada judge does not have to allow them to exercise this right, but could insist upon their presence. However, it works to the prisoner's benefit in some cases. He gave an example of what happens in Nevada when there is an outstanding case in another state which is unadjudicated and a prisoner remains in Nevada's prison system. That prisoner does not go to a camp or a restitution center until such time as those charges are cleared in the other state. The reason is that Nevada does not want to put someone who might be a flight risk as a result of not knowing what is going to happen to them, into a minimum or community trustee situation where they may well become not only a flight risk but a full-blown escape waiting to happen. In some cases, people want to get their lives behind them and are willing to work with their counsel in Nevada to be sentenced while incarcerated in another state. Mr. Sarnowski stated he believes that should be respected. If they wish to speak to the judge, they are certainly able to do that, and will be brought back under the mechanism provided by law to do so.
Senator Jacobsen stated that it seemed proposals were always being made to make things easier for the convicted person. He would hope, instead, that the attempts would be to make things more difficult. He stated it did not seem reasonable to him that the accused should be sentenced without that person being present. This would allow the person to later come back to the supreme court with a claim of infringement of rights. He wondered if this bill would create another problem, and asked if the proposed practice is common in other states.
Mr. Sarnowski replied that he would not use the word "common," however, he knows some states do have the provision. He advised that the California penal code referred to earlier requires the defendant to perform the waiver in open court on the record, or in a notarized writing. It is not required that a defendant from the state of California, who may be on the street in Nevada, be brought before a Nevada judge to make the waiver, but can do so with a notarized writing. He stated the California code requires that the defendant have counsel present in California, and under the provisions of A.B. 393, the defendant would have counsel in Nevada. Each defendant is entitled to counsel, and if he or she cannot afford counsel, one is appointed by the court. In no case could they not be represented, if they chose to be represented.
Senator Jacobsen asked if there is not an old English law or common law in which the accused has the right to face his or her accuser.
Mr. Sarnowski agreed that many people may want to exercise the right to be present before the sentencing judge. However, A.B. 393 merely allows the person to make a considered choice, with the advice of counsel, whether or not to waive that right. As with almost all constitutional and statutory rights, a criminal defendant has the right to forego exercising them.
Senator Jacobsen asked if it is not true in most cases that the accused indicates that his or her counsel was not adequate.
Mr. Sarnowski stated that is at least a common thread which runs through many post-conviction actions and habeas corpus petitions. He did not believe it was the primary allegation, but a usual one.
Senator Adler stated concern regarding A.B. 393 being a short provision. He suggested the waiver needs to be executed before a magistrate or judge or before a notary. He suggested that the defendant's counsel should also sign the waiver.
Mr. Sarnowski stated the Attorney General's Office would not oppose a requirement that if counsel is involved in the case, that person would execute the document, and having the document executed before a notary. He stated his belief that execution of the document before a magistrate would be a problem in all cases. The magistrate in the other state may object to this procedure.
Senator James asked for confirmation regarding the right to counsel at the waiver stage because the constitutional interpretations provide right to counsel at all critical stages of the criminal proceeding and sentencing.
Mr. Sarnowski confirmed that sentencing, by Nevada case law, is a critical stage of the proceeding.
Senator James asked for and received confirmation that the United States Constitution, giving right to counsel in the Sixth Amendment, has been interpreted as saying the defendant has right to counsel at the sentencing stage. He asked who would give the defendant right to counsel if that person is in another state. All defendants should consult with counsel regarding sentencing proceedings, otherwise dire consequences could ensue. Depending on who the judge is and how the case proceeds, the defendant's presence or absence at the sentencing hearing could have a profound effect on the sentence. He wished to make clear that the defendant has a constitutional right which will be honored in every case.
Mr. Sarnowski stated the entitlement, under both federal and the Nevada state constitutions, is to counsel in Nevada. He advised the intention of A.B. 393 is that this right be honored. Obviously the defendant and counsel will have to communicate with each other via documents, telephone conversations or other means. He stated the counsel would be present in Nevada and present at sentencing. He would anticipate that in the great majority of cases, counsel would attempt to make a case for the client, even if the client was not present. Counsel would have to be present at the hearing to complete the process in Nevada.
Senator James advised A.B. 393 does not state the defendant has the right to counsel before he or she executes the waiver.
Mr. Sarnowski stated the defendant would already have counsel, either because of a trial or because of a plea of guilty.
Senator James concurred, but reiterated A.B. 393 only states the defendant may waive this right, and not that the defendant has the right to counsel before making the waiver. He suggested perhaps this should be in the law.
Mr. Sarnowski stated his office would have no problem with this provision being in the statutes. He stated his belief that this is assumed in case law, and did not know if it could be overruled, but stated it would not be a good to try to overrule.
Senator Adler stated he would be more comfortable with this stated in the statutes. He suggested the statute should state that counsel and the defendant need to sign the waiver form before a notary, and then require that the waiver form must state something to the effect that the defendant acknowledges that he or she has the right to be present and waives that right. He stated some recital must be present as to what the defendant is doing in the statute. He advised the way A.B. 393 currently reads, a defendant could write his waiver to appear on a paper bag, and this would comply with the statute. He further advised that, even on a first time charge of Driving Under the Influence in Nevada, defendants are filing out extensive forms waiving the right to plead.
Ben Graham, Lobbyist, Clark County District Attorney's Office, provided oral testimony. He advised that if this law is enacted, it must be known that the waiver is constitutionally sound. He explained how this procedure has previously worked. A defendant goes to trial and is found guilty or pleads guilty, and sentencing is continued for a pre-sentence investigation. The crime committed may carry a possible sentence of 2, 3 or 4 years in prison, which usually means 3 or 4 months. The defendant leaves the state and does not appear for the sentencing hearing. A bench warrant is issued from Nevada. If the defendant is then arrested either for a crime committed before the Nevada crime or, more frequently, a crime committed in another state after leaving Nevada, the defendant is sentenced to prison in the other state. Mr. Graham stated it is amazing how few times the Nevada warrant does not have any effect until the defendant is in prison in the other state. He advised the defendant wants to get into a rehabilitation program, and to begin the good time and projects for credit for release in the other state. The Nevada warrant appears and the prison warden the other state authorities advise the defendant he or she cannot begin the procedure toward release because of that warrant. The enforcing agency in Nevada reviews the file and the recommendation for sentence, and the prosecutor considers the time the defendant is spending in prison in the other state. The prosecutor will not spend the taxpayers' money to bring the defendant back to Nevada. The defendant wants to be sentenced in Nevada to have that case over. Mr. Graham advised the Nevada prosecutor is frequently contacted by the court appointed or private counsel in Nevada, and a waiver of appearance at sentencing is drafted and the hearing is held. Mr. Graham stated he would hesitate to make a laundry list of the requirements to obtain a constitutionally valid waiver. He stated if someone was imprudent enough to accept a waiver on a napkin or something similar, the state should take punishment for this. He advised he knew of no such cases where the defendant has ever had to return to Nevada to serve the remainder of the sentence. Almost always, the sentences in Nevada and the other state run concurrently, therefore, the defendant serves the Nevada sentence in the other state. The state of Nevada would not get any more time if the defendant was in Nevada.
Senator Adler asked what would happen if the defendant goes to another state and commits another crime. The original recommendation for sentence in Nevada was 1 to 6 years, but the crime had an outer limit of 10 years. The defendant waives appearance at sentencing and the judge states because the defendant committed another crime in another state, he doubles the recommendation and sentences the defendant to 10 or 12 years. The defendant could then state he or she understood the sentence would be 4 years concurrent.
Mr. Graham stated this could happen, but he has never seen it. The waiver is the defendant's option and his or her effort to clear up all cases, and an effort by the state of Nevada to get the judgment and the sentence entered. He advised that if it appears the sentences will not be concurrent, the prosecutor would not give the defendant the option of being sentenced in absentia. The provisions of A.B. 393 are mainly for minor offenses, for which the defendant would not get any more time even if present.
Victoria D. Riley, Lobbyist, Nevada Trial Lawyers Association (NTLA), provided oral testimony in support of A.B. 393. She stated the NTLA believes this is a procedural issue which could save money for the state.
Mr. Graham advised that he witnessed the debate in the assembly regarding A.B. 393. He stated the representations made were highly suspect. One argument concerned a defendant due to be sentenced in Las Vegas who was arrested in Gardnerville, and the defendant is sentenced in Las Vegas in his absence. Mr. Graham stated these types of circumstances are not included in A.B. 393. He reiterated the major interest is in saving money for the taxpayers of Nevada by not extraditing someone who will serve no time in Nevada, but will serve time in another state. The conviction is then in place, so if the defendant returns to Nevada he can be sentenced and incarcerated here.
Senator James asked if the conviction would not be in place whether or not the defendant returns for sentencing.
Mr. Graham stated a conviction does not occur until a final judgment is entered.
Senator James confirmed there was no further testimony on A.B. 393, and closed the hearing.
Senator James reopened the hearing on A.B. 525.
SENATOR SMITH MOVED TO DO PASS A.B. 525.
SENATOR TITUS SECONDED THE MOTION.
Senator James referred to Senator Adler's concern that other crimes mentioned in NRS 432B.100 are not mentioned in A.B. 525. He stated A.B. 525 is consistent with A.B. 68, therefore promoting a consistent statute.
Senator Adler agreed.
Senator James confirmed there was not further discussion and reviewed the motion on the floor.
THE MOTION CARRIED UNANIMOUSLY.
* * * * *
Senator James confirmed there was no further business to come before the committee, and adjourned the meeting at 4:05 p.m.
RESPECTFULLY SUBMITTED:
Sherry Nesbitt,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE:
??
Senate Committee on Judiciary
May 17, 1993
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