The Committee on Judiciary was called to order at 8:00 a.m. on Wednesday, March 10, 1999. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Mr. Mark Manendo, Vice Chairman

Ms. Sharron Angle

Mr. Greg Brower

Ms. Barbara Buckley

Mr. John Carpenter

Mr. Jerry Claborn

Mr. Tom Collins

Mr. Don Gustavson

Mrs. Ellen Koivisto

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Dennis Nolan

Ms. Genie Ohrenschall

GUEST LEGISLATORS PRESENT:

Senator Mark Amodei, Capital District

Speaker Joseph R. Dini, District 38

Assemblyman Roy Neighbors, District 36

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Chairman Anderson delivered a Bill Draft Request (BDR) for committee introduction.

• BDR 16-1152 – Revises list of approved subjects for continuing education of members of state board of parole commissioners and case hearing representatives. (no bill number assigned)

Chairman Anderson distributed an Ad Valorem tax distribution list to the committee for 1998-99 (Exhibit C).

Richard Gammick, District Attorney, Washoe County, opened his testimony by pointing out S.B. 63 was introduced in the Senate Judiciary because of an oversight in the law. He explained there had been a recent murder of an elderly person in Washoe County and the deadly weapon enhancement did not apply. His office looked at the age enhancement under Nevada Revised Statute (NRS) 193.167 and realized a person could beat up, kidnap, rob, sexually assault, and embezzle an elderly person and face the enhancement, but if they tried to murder or did murder an elderly person they did not face the enhancement. Because of that oversight he asked Senator James if it could be corrected, and that was why the bill was before the committee. In regard to a fiscal impact, Mr. Gammick stated Mr. Whorton, Nevada Department of Prisons (NDOP), had testified with him before the Senate Judiciary and advised there was no impact. Mr. Whorton had testified there were eight cases currently in prison in which that type of enhancement would apply. He noted enhancements could not be stacked, so if they charged both a deadly weapon and the age enhancement only one of them would apply at the time of sentencing. There were not that many cases in which they did not have a deadly weapon enhancement, but there were a few, so he would like to amend the bill.

Chairman Anderson mentioned the committee had dealt with the same bill in the 69^th Session but missed that particular language in the bill.

Assemblywoman Buckley questioned if enhancements and penalties were continually added instead of just increasing the penalty on the underlying crime in the first place, ultimately the Supreme Court would say there were so many enhancements and penalties the "deck of cards just collapses." She noted it could ultimately end up hurting the people they were trying to help.

Mr. Gammick responded there were a limited number of enhancements under the statutes. The primary ones with which his office worked were the age enhancements that applied to persons over 65 years of age and the deadly weapon enhancement which they used often. He noted he was not trying to add another enhancement but wanted to cleanup the existing one. He felt it was not right if an elderly person was battered the aggressor could face the enhancement, but if an elderly person was murdered the enhancement did not apply.

For clarification, Assemblyman Brower questioned although the District Attorney could charge alternative enhancements they could not be stacked.

Mr. Gammick replied affirmatively and referred to the Nevada Supreme Court that mandated enhancements could not be stacked. He explained when a person over 65 years of age was murdered with a deadly weapon the District Attorney could charge both the over 65 and the deadly weapon enhancements, but when it came down to sentencing they could not be added consecutively. A decision had to be made as to which one would be used or used concurrently.

Mr. Brower asked if it helped their efforts to be able to charge alternative enhancements. Mr. Gammick responded whenever they could they charged alternatives because they were never sure what would come out in the trial.

Mr. Brower inquired if there was a downside to Mr. Gammick or his office having as many alternative enhancements as possible available to them to maximize the possible sentence.

Mr. Gammick conceded he did not know all that was before the legislature in the current session but not knowing if there were more enhancements out there, he dealt with the ones currently on the books. All enhancements which applied to the facts of the case would be used because they were not sure what would come out in a trial.

Ben Graham, representing the Nevada District Attorneys Association, spoke in support of S.B. 63. He referred to the concern Ms. Buckley had and conceded it was shared by several people. He thought there were narrowing abilities to stack enhancements so the committee should not run into a problem with the Supreme Court.

Janine Hansen, president, Nevada Families Eagle Forum, spoke in opposition to S.B. 63 expressing concern that the continuing addition of enhancements would jeopardize the idea of equal protection and equal justice under the law. She felt the committee needed to consider increasing the penalties all the way around.

Merritt Yochum, Chairman, Independent American Party, speaking in opposition to S.B. 63 stated he fell into the category of over 65 years of age and opposed the bill because it was unequal protection under the law and he did not see any end to that type of legislation.

Chairman Anderson explained to Mr. Yochum the statute was already established and all the bill was attempting to do was correct an oversight by including murder as an enhancement. Mr. Yochum responded somewhere the line had to be drawn.

Chairman Anderson closed the hearing on S.B. 63 and brought it back to committee and entertained a motion.

Chairman Anderson entertained a motion to place S.B. 63 on the consent calendar for the Assembly.

Chairman Anderson assigned the bill to Assemblyman Claborn.

Chairman Anderson opened the hearing on A.B. 314.

Senator Mark Amodei, Capital District, testified he was appearing before the committee in support of A.B. 314. He explained when the legislation was enacted in the 69^th Session to create the regional juvenile detention center the funding formula for operations was left out. He noted the measure before the committee was the work of the five counties involved with the detention center.

The counties involved were Carson City, Lyon County, Storey County, Douglas County and Churchill County.

Speaker Joseph E. Dini, District 38, the presenter of A.B. 314, informed the committee a regional juvenile detention center was created in Silver Springs, Nevada to accommodate five counties. He explained the center was created in the 1997 session and there was a funding mechanism in the original bill to operate the center but for some reason the mechanism was removed from the bill.

Speaker Dini informed the committee the five counties agreed to the funding formula in A.B. 314 ensuring continuous operation of the facility. He noted the facility was not just a detention center but was used for treatment also. The facility was located next to a medical clinic, a mental health clinic, and near the school in Silver Springs.

Speaker Dini concluded his presentation by assuring the committee the facility would be great for the juveniles to help them overcome their problems. He pointed out the State of Nevada gave $1.25 million to construct the center and the counties would now operate it.

LeRoy Goodman, Chairman, Lyon County Commission testified A.B. 314 provided a mechanism for funding the regional facility. He indicated each of the five counties was represented at the hearing by the manager or a commissioner. He stressed the counties were not asking for state funding, it would be funded from the counties and the bill would enable them to put the funding mechanism in place. He noted the center was under construction already. He also added there was an animal shelter near the facility, and there was hope the juveniles would be able to help and learn some responsibility by participating in the care of the animals.

Charles Haynes, Chairman, Storey County Commission, spoke in support of A.B. 314 stating they worked in concert with the other four counties to fund the facility. He commented they wanted to take it on their own and not keep continuing to come to the state for money, so they wanted the mechanism to enable it. He mentioned Storey County was a little smaller than the other participating counties and could be affected by the money spent on the facility, so they needed the mechanism in place to pay for the facility’s operation.

Ray Masayko, Mayor, Carson City, testified Carson City was one of the five entities supporting A.B. 314. He expressed his thanks to the legislature for the funding the state provided for constructing the facility and pointed out there was not a facility like it in the state that provided the counseling and treatment for juveniles. He assured the committee the Carson City Board of Supervisors was in a position to pay their fair share of the operating costs of the facility.

Daniel C. Holler, County Manager, Douglas County, spoke in support of the bill and felt it was unique, both in the funding of the facility, and because five counties had come together and agreed to impose upon themselves the funding mechanism, either from their general fund or from taxes allowed under the bill. He noted the bill was modeled after the "China Springs Bill" which was a very successful program and urged the committee to pass A.B. 314.

Bjorn P. Selinder, County Manager, Churchill County, spoke on behalf of A.B. 314 stating Churchill County supported the mechanism of self-help for the five counties in funding of operations of the new detention center. He stressed a number of optional mechanisms were built into the legislation allowing the respective boards of county commissioners to exercise a number of ways to provide the funding as required by the bill.

Kelly Kite, Commissioner, Douglas County Board of County Commissioners, spoke in favor of A.B. 314 and commented it was a good project and noted the existing local detention facilities were near capacity. Carson City was full and additional beds had been added to the Douglas County facility and those were also full. He felt the project would be very difficult for any one of the five counties to support individually and thought it was a great step for the five counties to work together on the project.

Bill Lewis, Chief Juvenile Probation Officer, Carson City, testified his office provided contracted and federally funded services to Storey County for their juvenile offenders. The population in Nevada was growing rapidly and juvenile problems were becoming more significant. He and other chief juvenile probation officers had been working on the project with a great deal of support from the district judges, mayors, county commissioners, and city and county managers.

Mr. Lewis indicated substance abuse had been one of the primary problems and noted approximately 85 percent of the youth who were formally in the juvenile system were there because of substance abuse.

Mr. Lewis stressed the Silver Springs facility was not a detention center like the one located in Carson City and Lake Tahoe. Those facilities were for pre-court and pre-trial cases and were presently over capacity and had to deny some cases. He observed the new facility was a unique program within the State of Nevada. The counties collectively and regionally "stepped to the plate" and offered a post dispositional short-term placement for youth who had been elevated into the system and without intervention would end up in a youth training center like Elko, Caliente, or China Springs.

Assemblywoman Leslie noted on occasion the five counties had sent some juveniles to Washoe County through a contractual agreement and wondered if there was a mechanism in the funding formula that allowed space for juveniles from Washoe County to be sent to the Silver Springs facility.

Mr. Lewis responded his office worked very closely with other juvenile systems in the state and used resources in Clark County for substance abuse treatment as an example. He noted if there was space available he could see Washoe County or the Washoe Tribe, which did not have a detention center, use the facility if it was done professionally and used in an appropriate manner. He felt it could be useful throughout the state.

Steven Grund, Chief Juvenile Probation Officer, Churchill County, commented the facility would provide short-term, post dispositional rehabilitation for juveniles dealing with substance abuse, educational, and family issues.

Mr. Grund noted one of the problems was their distance from state facilities and placing the facility and operating it from Silver Springs allowed them to work more closely with the juveniles in a localized area. Additionally they would be able to work with the parents because most were disconnected children and needed to be reconnected with their families. He felt it was very difficult to do that in Fallon when the child was in Caliente or Elko. What they anticipated doing was to reconnect the families and still provide sanctions for illegal behavior.

Mr. Grund testified another outcome from the operation of the facility would be fewer individuals being sent to state institutions. With the Western Nevada Regional Youth Center and the funding mechanism in place, they could address several concerns like the need for consistent placement instruments, creating intermediate sanctions and interventions, assessment of existing substance abuse programs, and the restructuring of state and county relationships. He stressed they were taking the burden at the county level and that was what A.B. 314 allowed them to do.

Assemblyman Gustavson questioned how the residents of Silver Springs felt about the facility.

Chairman Anderson commented the facility was already under construction so the bill was not to determine the placement of the physical facility, just the funds for its continual operation for a period of approximately 2 years. After that they would enter into an interlocutory agreement.

Charles R. Seale, Chief Juvenile Probation Officer, Lyon County testified he also supported A.B. 314.

Mr. Goodman responded to Mr. Gustavson’s question regarding the opinion of the Silver Springs residents, stating several meetings were held with many of the residents of Silver Springs and the surrounding counties as to the location of the facility. Several sites were considered in Lyon County, and the site selected was without opposition because it was currently county property and next to the medical centers, road department, and the animal shelter. It was also located off of the highway so there was no direct access from highway 50. He noted Lyon County donated the 2.7 acres for the facility and there was no opposition at the hearings on the donation or the selected site.

Assemblywoman Angle queried if the bill fell into the area of an unfunded mandate or taxes and wondered if those concerns were addressed in the hearings for the center.

Chairman Anderson replied he had already asked those questions when he received the bill and informed her it was not an unfunded mandate because it was a source of funding authorized by section 1, subsection 4 of A.B. 314 which provided the mechanism for the counties to fund it themselves.

Mr. Goodman agreed with the Chair and wanted to thank the commissioners and the juvenile probation officers because they had studied the program and did an excellent job of selling it to the five county commissions and were "up front" on what it would cost. He called attention to the importance of the counties working together and felt there would be more counties dealing with regional problems together rather than isolating themselves.

Jerry Lusk, private citizen, in speaking in opposition to A.B. 314 referred to the funding of the facility. He referred to section 1, subsection 4 which allowed the assessment of 5 cents on each $100 of valuation and referred again to the subsection when he pointed out the language "not subject to the limitations" pursuant to chapter 354 of the Nevada Revised Statutes (NRS). He noted that chapter was the section that covered the checks and balances on ad valorem taxes and also had the tax cap in it, so the tax cap had been bypassed.

Mr. Lusk felt the bill would have an effect on 16 of the 17 counties in the state because it provided for counties that had a population of 400,000 or less. He saw the bill as a tax increase that was not limited by the tax cap.

Chairman Anderson asked Mr. Lusk if he perceived, after reading that section of the bill, those counties, other than Washoe and Clark, would fall under the guise of the bill if they chose to set up a regional facility, and the commissioners of that county would be empowered to do so without regard to the $3.18 question.

Mr. Lusk responded, as he read NRS 354 that was correct.

Janine Hansen, President, Nevada Families Eagle Forum, testified in opposition to A.B. 314 because of her opposition to tax increases. She called attention to the Gibbons tax initiative and commented since that was passed there had been many attempts to circumvent the will of the people. She explained the purpose of the Gibbons tax initiative was to allow the people to vote on any tax increases. In the 69^th Session the sales tax increase was circumvented by way of the county commission. She stated there were other bills in the current session that circumvented the will of the people allowing them to vote on tax increases, and she felt A.B. 314 was one of them.

Ms. Hansen expressed serious concerns for increased taxes. She called attention to a 1996 article in Readers Digest that reported 50 to 60 percent of the income of the average family was consumed by federal, state, and local taxes. She noted both parents needed to work with one parent working just to pay the taxes and thought there would not be a need for the facility being discussed if parents could spend more time with their children.

Ms. Hansen encouraged the committee not to circumvent the will of the people and the Gibbons tax initiative and allow the people in every circumstance, the right to vote. She conceded she had concerns about the Gibbons tax initiative, not because she did not support the limitation of taxes, but because she knew government would find a way to circumvent the will of the people.

Ms. Hansen referred to section 1, subsection 1 (a), questioning the language regarding "less than 400,000." She wondered if Washoe County was excluded from the bill or could they enter into an agreement with the other five counties, and would the taxes in Washoe County be raised if they decided to participate in the facility.

Assemblyman Nolan asked Ms. Hansen if she understood the importance of the facility and the testimony regarding the need for the facility. He noted there had to be means to fund those type of vital services and questioned how she would finance a facility that was so desperately needed.

Ms. Hansen responded that was the difficult question with which the committee had to deal. She declared there were many things in which the government was involved that were beyond the proper role of government. There should be priorities set, and youth was one of those priorities. She conceded she did not have specifics because she was not an expert in the budget process, but she felt it was necessary to cut other government services in order to provide for the most important ones. She thought increasing government and increasing taxes were the greatest threat to the survival of the family.

Chairman Anderson pointed out to the committee currently under NRS 62.840 all facilities were supported by most of the counties in the state regardless whether they were actually served by that facility.

Merritt Yochum, Chairman, Independent American Party, Carson City, commented the creativity of government to devise ways to get around the tax limitations was unbounded. He thought if the government would use some of their creativity to prioritize the budget, the funds could be found for the facility in Silver Springs. He agreed the facility was needed. However, going around the tax limitation was wrong, and he opposed the tax increase.

Mayor Masayko stressed to the committee one of the vehicles was an ad valorem tax increase and, at his insistence, it also provided if other funds could be made available without adding to the ad valorem rate to meet the obligations for the facility, that would be how he would propose it for Carson City.

Chairman Anderson closed the hearing on A.B. 314 and brought it back to committee.

Assemblyman Carpenter informed the committee he was a county commissioner for many years and thought county commissioners were as close to the people as any government was going to get. He believed commissioners made decisions the people supported, and if not, they would not be there very long. With all the public hearings and input they received, he felt the people supported the facility.

Assemblywoman Buckley commented when the counties worked together on a funding mechanism and created a partnership with the state in an effort to keep taxes lower, they could not ask for much more from the local government.

Assemblywoman Angle agreed with Mr. Carpenter local taxes benefited local people but pointed out what they were finding in Washoe County was by circumventing the Gibbons tax initiative it raised the ire of the people. She noted her constituency could no longer tolerate that activity, and for that reason she encouraged finding other funding sources instead of circumventing the tax initiative. She remarked she had worked with juveniles for many years and understood the need for a facility like the one in Silver Springs, but she did not think it was the proper way to fund it, so she was opposing the bill.

Assemblyman Gustavson agreed with the need for the facility, but the problem he had was with the method of funding. He indicated property taxes amounted to less than 20 percent, except for Washoe and Storey Counties, of all revenues received by the county. Putting that tax burden on property owners was another way to bypass the Gibbons tax initiative. He suggested the counties should look for other funding mechanisms.

Chairman Anderson indicated he did not think the funding fell under the Gibbons tax initiative, because they were not dealing with that type of funding question.

He pointed out there were a variety of funding methods open to the county and the committee was trying to pass a piece of legislation so each county could construct the best funding formula for that particular county. He reiterated he did not feel it would circumvent the tax initiative.

Ms. Leslie observed it was good fiscal policy and something for which her constituents had been asking. She stated it was good fiscal policy because they were not just "warehousing the kids." They got them into the facility, separated out the ones who could be treated and broke the cycle of addiction. She felt in the long-run, it would save money for the taxpayers.

Ms. Buckley stated she wanted it clear for the record it was not a circumvention of the Gibbons tax initiative, which she believed required a two thirds vote if the state was raising fees.

Mr. Nolan requested clarification if there was an effort of collusion among local counties to find an alternative funding mechanism for a facility, and in doing so eliminated the protective barrier for the taxpayers of the state. He pointed out he had not had a chance to review chapter 354 of the NRS but would like to do so. He questioned if the collective effort would require each of the counties to hold public hearings within the counties in order to impose the tax upon the people.

Speaker Dini responded he thought the reason the ad valorem tax increase was in the bill was because there had to be continuity in the funding of the facility. There could not be one county dropping off because it was at the cap and could not raise any more money. The counties needed to know the money was going to be there, or one of the counties would be supporting the full amount. He reiterated it was in there as a backup. He noted state bonds were backed up with property taxes to ensure payment. He did not think any of the counties were at the cap so it should not affect them, but in case they needed the money, it gave them the right to use it. He stressed once they opened the building that was funded with state money, did they expect it to just sit empty because it could not be funded among the five counties. He resented people who did not live in those five counties discussing the tax structure in those counties when they did not know what the tax structure was in each of those counties. He mentioned he was a big taxpayer in Lyon County, and he supported the bill because it helped the children. He was tired of sending the children out and having them come back worse. The facility was an opportunity in those five counties to do some good for them.

Mr. Brower agreed A.B. 314 did not implicate the Gibbons tax initiative. He related he was as sensitive and against tax increases as anyone in the room but noted the bill was an enabling measure. He suggested a remedy to those who were against a tax increase that could be imposed locally was to vote out of office the mayor, county commissioners, and any one else who decided to impose the tax. Echoing Mr. Carpenter’s comments, he felt it was unfair to accuse the legislature of imposing a tax increase through bills like the one being discussed. He stressed it enabled the county governments to implement what they thought was necessary and if a person disagreed with their decisions, then vote them out of office.

Mr. Nolan stated he appreciated what the rest of the committee had to say on the issue. He knew the facility had to be funded, but he wanted to make sure the legislature, which was responsible for setting tax policy and protecting the taxpayers, was not setting a precedent by eliminating what was supposed to be a protective firewall within the statutes. For that reason he indicated he would abstain on the vote and reserve it for the floor.

Mr. Carpenter addressed Mr. Nolan and asked him to review NRS 354. He pointed out there were a number of overrides enacted over the years and noted examples of welfare, accidents on the highways, and small counties involved in accidents where there was no insurance and it wiped out their budget. He stressed it was a tax saving measure and he supported the bill.

Speaker Dini would present the bill on the floor and Ms. Leslie would represent the Committee on Judiciary as a back up on the floor.

Assemblyman Roy Neighbors, District 36, introduced A.B. 336 on the request of Sheriff Rocky McKellip of Mineral County. He informed the committee the bill required individuals convicted of the distribution of a controlled substance to individuals under 18 years of age to pay restitution for the cost of a drug treatment program for the victim. He pointed out the only fiscal impact on A.B. 336 would be the fiscal impact on the person who committed the crime.

Rocky McKellip, Sheriff, Mineral County, testified the reason they requested the bill was because his office found adults were contributing to the juvenile problem by persuading young people to use or buy drugs and then used and abused the child. He noted when those cases came to light, and the juveniles were in need of help, they did not have anyone to whom they could turn to. He said the "bad guy" would be sent away, but they were left with the parents who had to provide help for their children. Some were sent to rehabilitation centers and the average cost was $100 per day and noted most families could not afford $3,000 for a 1-month stay at a rehabilitation center. He asked the committee to support A.B. 336, which would require those adults who were convicted of providing juveniles with controlled substances to be responsible by paying restitution for a drug treatment program. He reiterated many people could not afford $3,000 or more for a treatment program and asked for the penalties to be harsher on those individuals abusing the children.

June Dement, private citizen, speaking in support of A.B. 336 testified her family had felt the full impact of the cost of providing drug rehabilitation for a child. Her 15 year-old daughter was found using drugs and 2 adults were selling her the drugs. The only way she felt she could handle the situation was to turn her own daughter in for drug use so the adults who were selling her the drugs could also be arrested. As a result they withdrew 20 years of savings for her drug rehabilitation. She noted her daughter was now in her second year of college and working as a lab technician. She felt children really needed the rehabilitation and conceded the bill would not help her family. She recognized the problem of parents who were unable to afford rehabilitation for their children who were abusing drugs, and more often than not they were back on the streets buying and using drugs again.

Janis Scott, private citizen, opened her testimony by indicating she also had a 15 year-old daughter, but she learned about her daughter’s drug problem from the police. She was advised of the different rehabilitation centers in Northern Nevada like the 1-month program at Saint Mary’s Hospital in Reno and the 3-month program in Elko. She decided on a 1-year drug rehabilitation center located outside Saint George, Utah. She noted she was told the program would be expensive, but the family made the decision to take her to the Utah facility anyway, because it was recommended by those involved with her daughter’s drug problem.

Ms. Scott informed the committee, before she could leave her daughter at the facility she had to write a check for $5,400. That amount included a deposit of $4,900 for the month, $200 for processing, $200 for uniforms, and a month allowance of $100. Each month after that they had to pay $3,280 plus $70 per hour for therapy, but all they could afford was 1 hour of therapy per month. They removed her after 10 months because her money source was gone and she had also borrowed money to keep her daughter at the facility. The total bill for the 10 months was $37,440 which did not include travel or other personal expenses. She noted it was very good for her daughter because after 3 months she was not ready to go home.

Ms. Scott concluded her testimony by stating she supported A.B. 336 because it could help parents. She indicated her daughter was a senior at Mineral County High School and doing well.

Keith Carter, Sergeant, Las Vegas Metropolitan Police Department, representing Nevada Sheriffs and Chiefs Association, informed the committee he had spent many years in undercover narcotics enforcement and commented he appreciated bills like A.B.336 because he had heard stories similar to the prior witnesses many times. He felt it gave the police another tool to provide direction to individuals who were in need of that type of legislation.

Janine Hansen, Nevada Families Eagle Forum, spoke in favor of the concept of restitution. She thought it was very helpful in rehabilitating the perpetrators and the victims.

Assemblywoman McClain questioned Sgt. Carter where the money went after it was confiscated from a drug bust and could it be used for the purpose of restitution for the victims.

Sgt. Carter responded in a narcotics case where there was over $300 the police seized it and sent it to various entities like counties, cities, attorneys, and eventually some was sent to the police department.

Ms. Buckley asked for more detail as to where the money went after being seized by the police.

Sgt. Carter replied he did not have specific statistics, but from experience when money was seized there was no guarantee 100% could be kept. Attorneys had to be paid to process the seizures plus cases had to be negotiated.

Responding to the question regarding where the money went from drug seizures, Mr. Graham, Nevada District Attorneys Association, replied there was a formula in statutory form where funds could be shared with agencies participating in the process of enforcement and seizure. He informed the committee in his particular unit there were two attorneys and three secretaries that did nothing but work on forfeitures. Those included money, cars, airplanes, and boats and were funded by the assets being seized. He noted those were distributed to the Las Vegas Metropolitan Police Department and sometimes shared with the federal agencies.

Chairman Anderson replied to Ms. McClain’s question regarding using the money for restitution and said it could not be done because federal guidelines prohibited it.

Assemblyman Manendo questioned if an individual could not pay restitution what would happen to that person.

Mr. Graham responded that issue was investigated whenever restitution was ordered and in some ways it was cruel to the victim because even though restitution was ordered there was very seldom any money there. They would not spend time in custody because of a recent Supreme Court case that said a person could not be held in jail for failure to pay monetary obligations. He noted normally the restitution was ordered, but it was done so at the direction of the Department of Parole and Probation. He thought the merit of A.B. 336 was there could be an occasion where there were assets that could be reached by the victims.

Mr. Manendo contemplated if all the money and all the goods were confiscated from the drug dealers and there was nothing left, they would be back to square one. He indicated he supported the bill, and if an individual could pay, he thought they should.

Mr. Graham commented that was an ongoing issue of litigation especially in the federal system and the state courts where the authorities were limited as to what they could seize. It had to be traceable to the criminal activity. He thought the state was more careful than the federal system so there could be assets available over and above the actual narcotics transaction.

Chairman Anderson inquired if a juvenile committed several drug offenses would they eventually end up in a state program where treatment would be provided and Mr. Graham responded that was correct.

Chairman Anderson asked if it was a funding mechanism for early intervention on a first or second offense where otherwise they might not qualify. Mr. Graham confirmed that was correct.

Ms. Buckley mused under the theory nothing was safe while the legislature was in session regardless of the bill before them, was there such a thing as an accounting of all of the money seized and where it went.

Mr. Graham assured the committee there was an accounting and if it was an issue he would look into it for the committee.

Chairman Anderson felt it was an issue and referred to prior sessions when confiscation of weapons had been discussed and asked Mr. Graham to provide them with the accounting information. In addition he requested Mr. Graham to provide them with the Supreme Court opinion regarding holding an individual for failure to meet monetary obligations.

Ms. McClain remarked the money from drug busts should be allocated to help those juveniles the drugs had harmed.

Mr. Brower felt the idea of restitution was good but thought it might be better to require an offender to pay to a fund as part of the sentence. It could then be used by victims who wanted treatment and who could not afford it, as opposed to forcing the offender to pay for treatment that may not be wanted or treatment that may be affordable by the parents.

Chairman Anderson pointed out the difficulty in using the court as a mechanism for collecting money for specific types of programs.

Mr. Graham replied the issues in which the supporters of the bill were interested were case specific. He explained it would have to be established by a preponderance of evidence the child’s need for rehabilitation was predicated upon the defendant’s activities in dealing narcotics. He thought it would be more useful in the rural areas where there were not the mass drug activities found in the larger populations. He thought there was merit in what Mr. Brower had suggested regarding creating a fund, but certain funds had not gone very far and with case specific there was use for the legislation.

Mr. Brower related on a case by case basis it would be very difficult drawing a nexus between the offender’s conduct and the victim’s need for rehabilitation or treatment. He noted he recognized the value of restitution but thought the bill had some technical problems that would be very difficult to work out. He suggested the committee take a harder look at the bill before they took action.

Chairman Anderson closed the hearing on A.B. 336 and brought it back to committee. He asked Mr. Brower if there was something specific that could be done to the bill that would raise his comfort level or was it a policy question.

Mr. Brower responded it was a policy question that concerned him. He thought it would not be easy or desirable to require someone who had purchased a controlled substance to be compensated for treatment whether or not they wanted it or could afford it. He favored the offender paying a fine in the form of restitution, but he was uncertain if the language in the bill was the best way to try to help those who may be victims of the offender’s conduct.

Chairman Anderson asked Mr. Brower if he would be more comfortable with the bill if they changed the language from a "shall" to a "may." It would give the court the opportunity to use it as a potential sanction and having chosen such a sanction would then notify the parents it had been utilized, so it was not mandated but a choice question.

Mr. Brower responded he would feel more comfortable with that provision in the bill and hoped those who spoke in favor of the bill would feel the same way.

Ms. Lang informed the committee the courts already had the authority to impose restitution in any type of felony case. She explained what A.B. 336 did was make it mandatory for the specific type of restitution mentioned in the bill, but it was already authorized.

Chairman Anderson opined by changing section 3, line 16, from a "shall" to a "may" would not give any additional powers other than to recognize a specific type of restitution was available to the judge.

Ms. Buckley observed some judges had a narrow interpretation of restitution. She stated she supported the bill and felt it followed the committee’s policy of encouraging restitution. She indicated she supported whatever the committee and the Chair decided regarding "shall" versus "may." She mentioned if the word "may" could be used to give the judge a tool to help parents like the ones who had testified from spending their life’s savings she supported it.

Chairman Anderson queried Mr. Brower if he had reached a conclusion and he responded he did not want to stall the bill. He felt it was a "no harm, no foul" bill and would not vote against it. He noted restitution was the key and if they could achieve that goal he supported it.

Chairman Anderson entertained a motion to do pass A.B. 336.

Chairman Anderson assigned the floor statement to Mr. Neighbors and asked Ms. McClain to support him on the floor.

Chairman Anderson opened the hearing on A.B. 379.

Assemblyman Gustavson introduced A.B. 379 stating the bill addressed the distribution or sale of a controlled substance to a minor, which caused the death of the minor and enhanced the penalties to murder in the first degree. The bill would allow the courts to impose such a penalty if they felt it was necessary. He noted all the damage drugs caused to a family and urged support for the bill.

Assemblywoman Ohrenschall assumed the gavel in the absence of Chairman Anderson.

Mr. Graham, speaking in support of the bill, indicated there was an additional aggravating circumstance for a potential death penalty in the bill. He added many states had a longer list of aggravating circumstances than in the State of Nevada and felt it was not inappropriate to add the enhanced penalty as an aggravator and it would still be within constitutional safeguards.

Gemma Greene, Deputy District Attorney, Washoe County District Attorney’s Office, spoke in favor of A.B. 379. She related her office did not see any problems with the bill and she had some statistics regarding the number of cases in their office involving the death of a minor due to drugs. She said she had spoken to Mr. Gammick, District Attorney, Washoe County, earlier that morning and he indicated there had been two cases in the last year involving minors, drugs, and alcohol. She informed the committee in both cases drugs or alcohol were furnished to the juvenile by friends, and some of those friends were adults. They were party situations and in both cases the minors passed out and the friends thought they were drunk or high on drugs. In one case they even painted the victim’s face and shaved his moustache, but in the morning he did not wake up. She indicated they prosecuted that case. In the other case drugs and alcohol were used at the party and when friends took the minor home they left him in the backseat of his car because they thought he was passed out, and when they came back to get him they found him dead. They prosecuted on that case as well.

Anne Cathcart, Special Assistant Attorney General, Attorney General’s Office, spoke on behalf of the Attorney General’s Office indicating Mr. Gustavson had requested the office lend its support to A.B. 379. She distributed a letter (Exhibit D) from their office in support of the bill.

Jim Overton, Reno Police Department, testified he had been with the department for over 20 years and taught the DARE program to fifth and sixth grade students in the community. He pointed out that age group was not the group spending money on drugs, but they found themselves in positions where it was offered to them and he was pleased to see the bill was being added to the statute. He noted he was particularly supportive of the language in the bill stating no matter how drugs were provided, they were still guilty of providing drugs to a minor and not just selling them to a minor.

Mr. Overton commented he taught the children in his DARE program to take responsibility for their actions and felt those dealing in drugs also needed to take responsibility for their actions and pay the consequences.

David Gibson, Legislative Representative, Clark County Public Defender’s Office, spoke in opposition to A.B. 379 due to technical aspects in the bill. He explained he had worked in the public defender’s office for many years and had defended capital murder cases. He suggested the committee needed to be aware of how a death penalty case worked. He said the bill created another category of first degree murder and he was concerned about the language in section 4 that stated "if convicted of murder of the first degree committed upon a person under the age of 18 years and caused by a controlled substance which was sold." He continued quoting the paragraph, which used language pursuant to subsections in NRS 200.030 and felt the paragraph went too far. He explained in a death penalty case there were two phases, the guilt phase and the penalty phase, and were independent of one another. If a person was not convicted of first degree murder there would not be a penalty phase. In order for a jury to decide on a death penalty, they had to find aggravating circumstances. He pointed out one part of the bill allowed a person to be found guilty of first degree murder if they were providing drugs to minors, but to get to the death penalty required aggravating circumstances, not by finding it met another classification of first degree murder. To clarify, he reiterated the way to get to the death penalty was to go down the list of aggravators, not by going down the list of definitions of first degree murder.

Ms. Ohrenschall asked Mr. Gibson if he had a proposed amendment and he replied he did not; however, he suggested the last part of section 4 "the punishment of death may be imposed if the requirements of paragraph (a) of subsection 4 of NRS 200.030 have been met" be deleted because he felt it was not needed. He noted it was wrong and if it was deleted, after they found someone guilty of first degree murder, they would move to NRS 200.030 for the list of aggravators and if the jury found aggravating circumstances, they could impose the death penalty if they chose.

Chairman Anderson, sitting with the committee, commented he was under the impression under section 2, lines 14 through 16 of A.B. 379, which listed the expanded circumstances "distributing, exchanging, bartering, supplying, prescribing, dispensing, giving away, administering, or otherwise making available," they were expanding the list of potential aggravators for the death penalty.

Mr. Gibson replied in order for circumstances to be aggravating circumstances they had to be enumerated under the statute as aggravated circumstances which was what section 5, subsection 14, appeared to have done.

John Morrow, Chief Deputy, Washoe County Public Defender’s Office, opened his testimony by stating he was sure the committee treated any reference to the death penalty with the solemnity to which it was entitled because they were talking about the ultimate sanction being applied to a greater number of potential receivers. He pointed out every time the list of aggravating circumstances was expanded they were closer to the constitutional line where the death penalty was not being treated as narrowly as contemplated by the United States Supreme Court. He asked the committee to look very closely at the bill. In relation to the type of offenses that brought the list of aggravating circumstances to the surface like torture, mutilation, contract killings, killing peace officers, killing at random, and hate crimes, the victim was a major player in the situation. He explained the person willfully, unlawfully, and on their own, accepted and used controlled substances. He compared it to a game of Russian roulette and asked if the person who furnished the gun was subject to the death penalty. He thought the threshold was being lowered in one area for the death penalty far below what traditionally were aggravating circumstances.

Mr. Morrow referred to section 2 in which being convicted of selling a controlled substance was expanded to a category A felony and noted the bill was adding the language "prescribing or dispensing." He pointed out there were controlled substances that could be prescribed and dispensed and felt the bill would be "opening a whole can of worms" for the medical profession by having those circumstances included in section 2. He also pointed out section 2 imposed a much higher penalty for the first time offender. He thought higher penalties applied to a second offense would be appropriate and felt it would be a recidivism type of a statute as opposed to a flat penalty for everybody who carried out that type of crime.

Mr. Gibson apologized to the committee because he misread section 1, subsection 4 and conceded that section did the same thing as section 4, subsection 1 (d). He felt as long as they kept section 4, subsection 1 (d) they could remove section 1, subsection 4. He also conceded they could disregard his earlier argument.

Ms. Ohrenschall closed the hearing on A.B. 379 and brought it back to committee. No action was taken on the bill and the meeting adjourned at 10:40 a.m.

RESPECTFULLY SUBMITTED:

Chris Casey,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: