The Committee on Judiciary was called to order at 9:10 a.m., on Monday, April 26, 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

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Following roll call, Chairman Anderson opened the hearing on S.B. 148.

Jim Weston, chairman, Advisory Commission on Sentencing, State of Nevada, said the 1995 legislature created the Advisory Commission on Sentencing, whose primary purpose was to evaluate the criminal justice system in Nevada to make sure the sentencing system for felony and gross misdemeanor crimes was appropriate to match the types of crimes being committed. The commission was to make sure bedspace was utilized to best advantage, that most violent offenders were incarcerated, and alternative methods were used to house prisoners that did not need to be imprisoned. Over the last year and a half the commission had met, not many changes had been recommended in the structure of the sentencing system; however, two bills had been brought forward. S.B. 148 involved the sentencing of persons who committed "category E" felonies, primarily those convicted of drug charges.

Judge David Gamble, Ninth Judicial District, said before passage of the Truth in Sentencing Act in 1995, there were no mandatory probation crimes in the state of Nevada. One of the changes made by that law was the creation of classes of felonies, specifically class E felonies. Those felonies were basically defined as being punishable by 1 to 4 years in prison, but mandatory probation was included. Judge Gamble said that led him to believe he could sentence offenders to a range of time from 12 to 48 months and could impose normal probation conditions. Old language on page 2, line 16, of S.B. 148 defined class E felonies as being such for which a court shall sentence a convicted person to a term in the state prison for a minimum of1 year and a maximum of 4 years. Line 21 stated probation could be granted upon such conditions as the court deemed appropriate. When judges tried to sentence through the range of terms, and because some district judges attempted to impose jail time as a condition of probation, the matter went before the Supreme Court.

From the perspective of the judges, continued Judge Gamble, when the court had to grant probation for a class E felony , some people would plea-bargain down to that status. In order to counteract that judges would impose immediate sanctions on that person by providing jail time. With passage of the Truth in Sentencing Act, the sentencing commission believed there was no intent to change the court's ability to impose jail time as a condition of probation. It was also thought there would be a range of sentencing from 12 to 48 months available to the courts.

There was slightly different language between the A, B, C, and D class felonies and that of the E felonies. The old language contained on page 2, lines 16 and 17, stated there would be a minimum term of not less than 1 and not more than 4 years for the first 4 categories. Somehow during the session, that language was dropped. The Supreme Court decided because of that omission, the only choice for sentencing was exactly a minimum of 12 months and exactly a maximum of 48 months, which greatly reduced flexibility in sentencing. That was the first correction the sentencing commission sought to make in S.B. 148.

The second correction S.B. 148 addressed, continued Judge Gamble, was the item of flexibility of probation. The old language on line 21 in section 2, stated probation could be granted to the person upon such conditions as the court deems appropriate. That had historically always included jail time. The Supreme Court said because the statute meant automatic probation, no jail time could be included.

A third section of the bill, said Judge Gamble, addressed whether judges had the ability to sentence class E felons without the necessity of a presentence report. Those reports were relatively summary proceedings when a person pleaded to a class E felony, and there was a special system in Washoe County to track those class E felonies. In order to facilitate that system, an amendment was brought forth in S.B. 148.

The final issue, said Judge Gamble, involved the cost of jail time. In counties where jails were crowded, law enforcement and defense lawyers would both be opposed to the changes in S.B. 148. Judge Gamble wished to reaffirm that the ability to impose jail time had always been in the law, and except for the brief period of time since 1995 when the Supreme Court made its ruling, had always been done. It was not a burden on the jails before, and Judge Gamble did not believe it would be a burden in future. He asked the committee to reinstate the ability of the courts to impose jail time as a condition of probation and the variability of terms of sentence of between 12 and 48 months.

Richard Gammick, district attorney, Washoe County, said he was a member of the sentencing commission and wished to address S.B. 148. In 1997 the legislature was addressed regarding category E felonies because people either on probation, had completed probation, or had an extensive criminal history were thumbing their nose at category E felonies because they knew they would only get probation. Those people required something more to get their attention. Recently, the Supreme Court had made it impossible for courts to sentence those same types of criminals to jail time. When a person knew he or she would be given mandatory probation the sentence became meaningless for some of them. Mr. Gammick asked for passage of S.B. 148 to correct such areas and to bring category E felonies back into line with all other felonies. Mr. Gammick said he was fully aware of jail overcrowding and had been working on the problem for over 4 years. In the instance of category E felonies, however, he saw no reason the cases that would be sentenced to jail time would affect that situation overmuch.

Mr. Weston commented the part of the legislation regarding presentence investigations had been added by request of certain judges and was not part of the sentencing commission report.

Chairman Anderson asked if judges in Districts 2 and 8 felt S.B. 148 would hurt or help the ability to keep people in drug programs. Judge Gamble said he had only spoken with Judge Jim Hardesty of Washoe County. Judge Hardesty said he felt the courts would be better prepared to act in quicker fashion to class E felonies with passage of S.B. 148. Chairman Anderson asked if Judge McGee had been contacted, and Judge Gamble responded he had not done so.

Assemblyman Carpenter asked if there was presently in statute the ability to put conditions on offenders other than jail time. Judge Gamble replied the only restriction given the courts was that jail time could not be a condition of probation. Felons still could be sent to drug treatment, given community service, and given house arrest. Community service was in question at present since it was a form of confinement.

Assemblyman Carpenter asked if community service and house arrest would be taken away as a condition of probation as well as jail time. Judge Gamble responded lawyers had made the argument that house arrest was tantamount to jail time since both restricted the freedom of the individual, contrary to that person being placed on probation. In the past judges had felt jail time was a normal condition of probation.

Chairman Anderson said people convicted of category E felonies after July 1, 1998, should have their sentences suspended and probation should be granted unless at the time of the crime was committed the person was serving a term of probation for a felony conviction or who had previously had probation revoked for a felony conviction. Prior to July 1, 1998, some discretion was allowed the judges in sentencing jail time.

Judge Gamble added an amendment in 1997 excluded repeat offenders and people who were on probation at the time or had failed probation from the benefits of automatic probation under class E felonies. S.B. 148 was a request to completely reinstate the ability to give jail time as a condition of probation to any class E offender.

Assemblyman Carpenter said if house arrest was also a problem perhaps it could be addressed at the same time as the other amendments to S.B. 148.

Judge Gamble replied if it was made clear that judges would again have discretion as to jail time, the intent to remove restrictions further the conditions that could be imposed would be made very clear.

Mr. Gammick said in answer to Chairman Anderson’s question regarding drug programs, courts in Washoe and Clark made decisions early on in a drug case as to whether a person would qualify for drug court. Should someone not qualify, or should they fail drug court, the option would be in place for a judge to add the particular provisions addressed in the amendment to S.B. 148.

Mr. Weston added the Nevada Chiefs and Sheriffs Association had argued against the bill due to the fiscal impact or because of increased local jail population. After debate in the sentencing commission, it was decided S.B. 148 was only to revert to the status quo before passage of the Truth in Sentencing Act so the impact would be minimal or even negligible. The commission did not consider the option of putting people with a sentence of less than a year into the state prison system.

Carlos Concha, chief, Division of Parole and Probation, said Judge Jim Hardesty sent regrets that he could not attend the hearing, but he had communicated with Mr. Concha’s office his support of S.B. 148. Judge Hardesty had chaired a subcommittee in Washoe County on criminal justice, where a study was being done as to how to improve the system. The amendment in section 3 of S.B. 148 was one of the proposals to come out of that subcommittee. The proposed change would allow the courts to sentence an offender convicted under category E during arraignment without the benefit of presentence investigation reports. S.B. 148 would enable the courts to release a person with no prior felonies, who might be a candidate for probation, 30 to 45 days prior to actual sentencing. A presentence report was used to provide information to the courts for appropriate sentencing, determine where an inmate would be placed in the prison system, and served as notice to the parole or probation officer who supervised the offender. Since none of those entities would be affected by a guilty plea as outlined above, it would not be necessary to issue the report prior to sentencing and therefore the 30 to 45 day wait would not apply. A general investigation report would be presented to the court following the sentence for any necessary modification of sentence.

For the reasons outlined above, Mr. Concha said the Division of Parole and Probation urged passage of S.B. 148.

Chairman Anderson asked if there would also be a cost benefit to parole and probation in not having to so quickly do presentencing reports for category E felonies. Mr. Concha replied the financial benefit would be slight in that a recommendation and evaluation portion of the report would not need to be completed. The real benefit would be the extension of time to produce the report. Chairman Anderson asked if there would be a delay because of the report to possible placement for an individual entering the prison system. Mr. Concha responded there would not. He said a general investigation report would follow which would include much of the same information except for the evaluation recommendation and some social history.

Chairman Anderson thought the best opportunity to complete such a report was while a person was in custody. Mr. Concha said the social history information would be provided to the prisons through a questionnaire completed by an offender. Chairman Anderson asked if outside sources were used for the questionnaire. Mr. Concha said employment records and such might be used, but most often the information came from the inmate. That information was generally fairly accurate.

Assemblyman Carpenter understood before a prisoner could be released on probation he or she had to wait until the report was complete, which could take 45 days. If the prisoner was put on probation immediately, there could be a considerable cost saving to the county. Mr. Concha responded that was the case.

Jim Nadeau, captain, Washoe County Sheriff’s Office and Nevada Sheriffs and Chiefs Association, said he had also been asked to speak on behalf of Lieutenant Stan Olson of the Las Vegas Metropolitan Police Department. Captain Nadeau told the committee the sheriffs of various counties were responsible for operation of the jails. It was not his intention to oppose the bill, since he was not opposed to putting felons in jail. He was concerned, however, with the potential financial impacts of S.B. 148 on the Washoe County Detention Facility and other detention facilities throughout the state.

Captain Nadeau commented language in S.B. 148 codified the fact that felons could be sentenced to county jails. He was not aware of any statute which codified that power of the court. He realized that was part of the court’s sentencing guidelines, but under the terms of S.B. 148 the court could sentence a person convicted of a category E felony to serve up to 1 year in a county jail. By design of the 1995 legislature, a category E felony disposition carried suspension of sentence and granting of probation which S.B. 148 changed. Captain Nadeau said his concern covered the impact to jails around the state. He told the committee Washoe County had taken steps to find alternative ways to place inmates, both through the district attorney and other law enforcement agencies. Currently between 1,300 and 1,400 inmates were the responsibility of the sheriff. Of that number, 570 were outside the jail. If not for the programs in place, those would be inside the jail as well. The design capacity of the Washoe County jail was between 600 and 700 beds, and to house nearly 1,400 inmates would be nearly impossible.

Additionally, said Captain Nadeau, the citizens of Washoe County approved a jail expansion a few years ago which would open soon, but as a result of the aggressive program to place inmates in alternative programs, the demographics of inmates in the jail had changed dramatically. Five years ago there was a majority of nonviolent misdemeanors and a small portion of felonies in the jail which had since then reversed. The majority of people in the Washoe County jail at present did not meet the qualifications for other programs. The question was who could be released to make room for category E felons if S.B. 148 passed. The person released would have to be someone currently detained who did not meet the criteria for release. In many cases, it might be driving under the influence or domestic violence inmates. The other question was who would bear the cost of $70 plus per day to house those inmates. Las Vegas paid $73 dollars per day per inmate, plus another $36 dollars per day because they had to lease extra space for the overflow. Captain Nadeau asked if the counties would have to pick up costs which were otherwise the responsibility of the state.

Captain Nadeau assured the committee everything possible was being done through the district attorney and law enforcement to keep the population down and to keep the federal courts from mandating sanctions resulting from overcrowding. The last time such overcrowding resulted in a mandated new facility at a cost to the taxpayers of Washoe County of about $33 million.

Captain Nadeau concluded he understood the sponsors of S.B. 148 were attempting to send a message to class E felons, but he was concerned about the cost to the counties. Placing an inmate in a county detention facility for up to 1 year put a burden on the county, displaced another person who should be in jail, and put someone otherwise sentenced to a suspended sentence or probation into an already overcrowded jail. It was his understanding the 1997 Legislative Session brought forth legislation which corrected the problem addressed in S.B. 148 and that further legislation was not necessary.

Chairman Anderson asked if Captain Nadeau and Lieutenant Olson had raised those issues when the bill came before the Senate. Captain Nadeau said they had discussed those issues. They were also under the impression that consideration was being given to the fact that legislation in 1997 had been put forth. He was not in the work session when the bill was passed out of the Senate Committee on Judiciary. He did not know the amendment to S.B. 148 would impact the county, but the bill itself might, and it was extremely difficult to know what that impact would be.

Assemblyman Collins said he understood jails were built with bond approval, and in some cases misdemeanor and nonviolent prisoners were to be housed in such facilities. It appeared the change to more violent felons in the facilities did a disservice to the public. Assemblyman Collins asked if the reason category E felons would be released without the 45 day wait for a presentencing report was because of a plea bargain versus a trial and if there would be a separate sentencing hearing.

Judge Gamble responded typically county jails were for housing persons waiting for trial and sentencing, as well as for misdemeanants sentenced to jail time. Law said felons were sentenced to prison time of minimum 1 year and a day. The amendment in section 3 of S.B. 148 would make the arraignment serve as the sentencing and release time. There would be no trial. The person would plead guilty, would be found to have committed the crime, and would be sentenced to probation all at one time. With regard to not having worst offenders in county jails, Judge Gamble pointed out every offender was in a county jail until sentencing, so the idea that only the least offenders were in county jails was inaccurate.

Assemblyman Collins said Clark County sent offenders throughout the community. Judge Gamble said S.B. 148 only attempted to return discretion of sentencing to 1 year in county jail as a condition of probation to any felon. Historically and currently, the courts could do so with anyone not sent to prison who could be placed on probation. Those included people charged with burglary, battery with substantial bodily harm, assaults on children, and so forth. That could be done with any category of crime except category E felonies.

Assemblywoman Ohrenschall asked if it was correct that 45 days jail time would be saved in the majority of category E felonies. Mr. Concha responded that was correct. The court had the ability to send those felons with prior records of category E convictions or probation violations to prison. In that case a presentencing report would be required and those 45 days would be spent in jail. If there was no prior record they could be released at arraignment saving the 45 days of jail time. Some special conditions might draw jail time of 30 to 60 days, and sentencing at arraignment might save jail time of 45 days.

Assemblywoman Ohrenschall asked if it was true Judge Gamble said there would never be a trial in a category E felony if S.B. 148 was adopted. Judge Gamble explained he did not mean there would never be a trial. If a person pled not guilty to a category E or possession of a controlled substance, they would indeed go to trial. Some class E felons in jail would save the 45 days by the procedure in S.B. 148, while others who were out on bail, for example, would not necessarily save bed space. It was difficult to predict what those figures would be, or what judges would do with the power to use jail time as a condition of probation. Judges who did use the jail time as a condition of probation usually had a good reason for doing so.

Assemblywoman Ohrenschall finally asked if an adverse financial impact would affect counties without an alternate system such as a drug court more than those who did. Judge Gamble said there were fewer people involved and so those smaller counties would be impacted less than the larger ones.

David Gibson, representative, Clark County Public Defender’s Office, spoke next in response to S.B. 148. Mr. Gibson said he had been with the public defender since 1981, and had represented thousands of people. It had been his experience the longest time one of his clients had been sentenced to jail time as a condition of probation was 60 days. He felt a full year jail time was out of line. He pointed out in the past there had been alternatives to jail time, such as 120-day evaluation, which the 1997 legislature had removed. In Clark County at present, virtually all category E felons were released from custody and placed in alternative programs.

Mr. Gibson expressed concern about the cost of the program advocated in S.B. 148. If a judge placed those felons in jail for up to a year, Mr. Gibson felt the state should bear the financial burden, which would make it easy to track the cost of the legislation. He did not understand comments that persons arrested for category E felonies were "thumbing their noses at the system." Pursuant to Nevada Revised Statute 176A.100, if a person had multiple convictions or was on or had failed probation anywhere the judge had all the authority needed to impose a prison sentence. The amendment on page 2 of S.B. 148 which dealt with the minimum and maximum sentence was necessary, but Mr. Gibson felt 45 days of jail time as a condition of probation might be more realistic. He was also concerned that there was no such language in statute for category A, B, C, or D felonies. When the Truth in Sentencing law was passed, there had been discussion of category E felons being nonviolent and the desire was to keep people out of prisons. S.B. 148 would put them in jails, which seemed to just move the cost from the prisons to the jails. If a person spent a year in Clark County jail, his or her sentence would probably not include further probation. Further, it did not take too much jail time to get ones attention, if that was the purpose of the bill. A seriously dangerous person belonged in prison.

Assemblywoman Buckley asked if Mr. Gibson agreed that currently, for other categories of felonies, judges were within their jurisdictions to invoke short jail sentences as a condition for probation. Mr. Gibson responded he knew judges did so, but he was not sure it was legal. Usually when that happened it was through negotiation with the district attorney in which jail time was agreed. He had never had anyone sentenced to anywhere near a year as a condition to probation. Assemblywoman Buckley asked if the real concern was with the length of time or the fact it was codified. Mr. Gibson replied if the purpose of S.B. 148 was to address the issue of attitude, parole and probation officers should deal with that. Judges rarely got involved in that aspect except during a presentence hearing.

John Morrow, representative, Washoe County Public Defender’s Office, testified next regarding S.B. 148. He said the Truth in Sentencing law enacted in 1995 made massive changes in the structure of the criminal justice system. Judicial discretion and authority were greatly curtailed by that law both in areas where judges would like to have been lenient and in the area of category E felonies. The 1997 Legislative Session amended the law to narrow the definition of who qualified for probation. S.B. 148 seemed to be yet another modification of the category E felony law which would bring it back to something it was never intended to be.

Mr. Morrow said the real problem with putting category E felons on probation had been corrected in the last legislative session. S.B. 148 pulled in two different directions. The amendment to section 1 which allowed judges to put people in jail for up to a year as a condition of probation pulled in one direction. The amendment to section 3 allowed courts to sentence class E felons without a presentence investigation pulled in the other. He did not know whether those numbers would balance each other. He said the amendment in section 3 would reduce person-days in jail. Washoe County had a special advisory committee and had worked on that issue for the past 3 years. One of the goals was to reduce the jail population by not having category E felons sentenced to jail as a condition of probation or a presentence investigation.

Chairman Anderson asked with which sections of S.B. 148 Mr. Morrow agreed. Mr. Morrow said section 1 was the problem. Section 3 was a good policy decision. There had been a lot of comment about people thumbing their noses at the courts, and those people would not be released before sentencing anyway.

Chairman Anderson closed the hearing on S.B. 148 and opened the hearing on S.B. 360.

Chairman Anderson told the committee it was possible sections 5,6, and 7 of A.B. 541 might be amended into S.B. 360 and the bill might then be rereferred back to the committee for a subcommittee hearing.

Robert Crowell, representative, Nevada Judges Association, testified on behalf of S.B. 360. Mr. Crowell said section 1 of S.B. 360 removed the mandatory sentencing provisions for petty larceny crimes and returned that to the sentencing discretion of the justice court. Section 2 of the bill would allow the courts discretion of sentencing first-time driving under the influence offenders to not less than 48 hours nor more than 96 hours jail time as opposed to the current mandatory 96 hours. S.B. 360 was not opposed in the Senate. Mr. Crowell knew of concerns of the committee with respect to the driving under the influence portion of S.B. 360 but he had discussed the bill with Brian Sandoval, who indicated he had no problem with that particular provision. First-time driving under the influence offenders were opting to take 48 hours in jail as opposed to 96 hours of community service. S.B. 360 would remedy that problem.

John Tatro, justice of the peace, Carson City, said regarding the enhanced sentences for petty larceny issue in S.B. 360 , the courts were finding most offenders needed alcohol or drug counseling as opposed to 60 days in jail. Most of the offenses were for cigarettes and such minor items. Jail time cost the taxpayers money and did no good.

The driving under the influence portion of S.B. 360 reduced community service hours. Justice Tatro said 96 community hours equated to twelve 8-hour working days, which was not an option for many people, so they opted for jail time. That added to overcrowding in the jails and to the burden to taxpayers. In many cases people who did community service later became volunteers for whichever organization for which they worked off the time, such as the Boys and Girls Club.

There being no further business before the committee, Chairman Anderson adjourned the hearing at 10:30 a.m.

RESPECTFULLY SUBMITTED:

Lois McDonald,

Transcription Secretary

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

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