MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
May 10, 2001
The Committee on Judiciarywas called to order at 8:15 a.m. on Thursday, May 10, 2001. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. The meeting was simultaneously videoconferenced in Room 4401 of the Grant Sawyer Office Building, Las Vegas. 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
Mrs. Sharron Angle
Mr. Greg Brower
Ms. Barbara Buckley
Mr. John Carpenter
Mr. Jerry Claborn
Mr. Tom Collins
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. Dennis Nolan
Mr. John Oceguera
Ms. Genie Ohrenschall
GUEST LEGISLATORS PRESENT:
Senator Valerie Wiener, Clark District 3
Assemblywoman Sandra Tiffany, District 21
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Glen Whorton, Chief, Classification & Planning, Department of Prisons
Harland Embree, Psychologist, Department of Prisons
Rev. Dr. Jane Foraker-Thompson, Episcopal Diocese of Nevada and Religious Alliance in Nevada (RAIN)
Ben Blinn, Citizen
Pat Hines, Nevada Citizens United to Rehabilitate Errants (NV CURE) and People Organized for Psych Panel Reform (POPPR)
David Gibson, Legislative Team, Clark County Public Defender
John Morrow, Chief Deputy, Washoe County Public Defender
Clay Thomas, Deputy Chief, Division of Parole and Probation, Department of Motor Vehicles and Public Safety (DMV&PS)
Troy Dillard, Sex Offender Unit Manager, Reno Office, Division of Parole and Probation, Department of Motor Vehicles and Public Safety (DMV&PS)
Robert Teuton, Chief Deputy District Attorney, Juvenile Division, Clark County
Lieutenant Stan Olsen, Government Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department
Captain Jim Nadeau, Detective Division, Legislative Liaison, Washoe County Sheriff’s Office, and Nevada Sheriffs and Chiefs Association
Dorothy Nash Holmes, Special Assistant to the Director, Department of Prisons
Mike Ebright, District Administrator, Division of Parole and Probation, Department of Motor Vehicles and Public Safety (DMV&PS)
Bryan Gresh, Nevada State Psychological Association
Dr. Earl Nielsen, Nevada State Psychological Association
Chairman Anderson made opening remarks and noted a quorum was present.
Chairman Anderson opened the hearing on S.B. 197.
Senate Bill 197: Revises provisions governing date on which offender is eligible to be assigned to participate in therapeutic community. (BDR 16-23)
Senator Valerie Wiener, District 3, was the primary sponsor of S.B. 197 that “started out as a simple bill, remained a simple bill, and evolved as a simple bill, though different.” The Therapeutic Community (TC) was created in 1997 and was fine-tuned in 1999. Senator Wiener brought S.B. 197 forward for “some additional fine tuning.” S.B. 197 as originally written allowed the director of prisons to obtain financial assistance from the Interim Finance Committee when the offenders’ store fund ran low and could not provide necessary funding for the TC program at Warm Springs Correctional Facility, better known as WINGS, Willing Inmates in Nevada Gaining Sobriety. The offenders’ store fund, along with a three-to-one federal match, was the funding source for the WINGS program. When S.B. 197 was re-referred to Senate Finance the bill was changed; it now dealt with inmate eligibility to participate in the program. Section 1, subsection 5, says an offender “must be within two years of” his/her date of expected release. That change gave the director “latitude” in determining who could participate in the program, when they could participate, and for how long. S.B. 197 mirrored federal legislation.
Senator Wiener went on to outline some of the successes of WINGS during its first three years, as reported by the Department of Prisons in a January 30, 2001, report.
q 755 drug tests were performed on WINGS participants; no inmates tested positive for illicit substances.
q Disciplinary incidents were half of what medium-custody inmates experienced.
q The cost per participant, $2,613, who completed WINGS, a nine-to-ten month period, represented less than two months’ incarceration costs, compared to an average of $16,000 per year to incarcerate a medium-custody inmate.
q Inmates who completed WINGS earned 90 days of Meritorious Sentence Credits, 54 days’ reduction in incarceration time, resulting in a cost savings of $2,367, almost enough to offset the cost of the program.
q The parole board tended to grant parole early to inmates who successfully completed WINGS; an early release of six months could represent $8,000 cost savings.
q Reincarceration should be affected. Although the Nevada program had not been in existence long enough to track the participants, other TC programs around the country indicated those who completed the program stayed out of prison longer, and would come back on lesser crimes.
Chairman Anderson said he had received a conflict notice dealing with S.B. 300, which had already been enrolled. S.B. 300 abolished the Bureau of Alcohol and Drug Abuse of the Department of Human Resources and transferred powers and duties of the bureau to the Health Division of the Department of Human Resources. A conflict amendment would be necessary to make reference to the health division, not a substantive change.
Glen Whorton, Chief, Classification & Planning, Department of Prisons (DOP), enthusiastically supported S.B. 197. It was the intent of the DOP to extend the TC program to the Southern Desert Correctional Center. The bill would provide an expansion of the candidate pool, allowing those who might be eligible for transfer to minimum custody to complete the program prior to that transfer. Mr. Whorton believed the TC program would affect violent offenders, sex offenders, and repetitive predatory offenders whose misconduct was related to substance abuse.
Chairman Anderson commented the program was originally part of the interim study of repeat offenders in 1994, but was not implemented at that time due to lack of funds. Mr. Whorton was unfamiliar with the early history of the program.
Chairman Anderson questioned what support system would be in place when the TC program was expanded to the south. Mr. Whorton said a slightly different model would be used in the south. While a “medical” model was used for WINGS, a more “correctional” model would be used at Southern Desert Correctional Center. Through the budget process, an appropriate staff would be provided to participate and supervise that program. Correctional officer positions were being converted to a more treatment-oriented type of individual, recruitment would be done for that specific type of person. A National Institute of Corrections (NIC) technical assistant grant was available to train staff at the Southern Desert Correctional Center in the aspects of changing the mission of the institution. A program audit was being developed to be conducted in July. A tremendous amount of technical assistance training from the American Correctional Association (ACA) with specific emphasis on programming was also available.
Chairman Anderson asked how the TC program would affect current staff at the Southern Desert Correctional Center. Harland Embree, psychologist, Department of Prisons, said Director Crawford’s plan was to use existing staff and convert some positions to substance abuse counselor positions and unit manager positions, a matter of retraining. Technical assistance would come from the Department of Justice.
Assemblywoman Koivisto asked for a definition of Therapeutic Community. Harland Embree said the TC program was a full-time program, provided in a housing unit separate from the rest of the population. The participants “live, breathe and eat a new philosophy and a new way of thinking.” Everyone in the unit operated on different social norms so the peer pressure was toward positive, responsible actions. The program had proven much better than going to a counseling group several hours a week.
Mr. Whorton related that it was a completely integrated program. All staff understood it was an “accountable” program; they understood the goals and mission of the program. Each contributed to the program through appropriate interaction to help the participants understand their past actions and what the appropriate behavior would be in the future.
Chairman Anderson related some of the positive aspects of the program if allowed to expand to a 24-month period. Mr. Whorton agreed with the Chairman’s assessment of the program. Besides helping the inmate to be better prepared to go out into the community and behave appropriately, there was the benefit to the management of the institution with less disciplinary involvement, less drug involvement, and less alcohol involvement. The program made the institution a better place, not only for the inmates, but for the staff as well. Chairman Anderson reiterated that by placing the participants in a separate environment and not having to deal with the rest of the prison population, the participants were taken out of harm’s way in terms of the availability of those types of products, drugs and alcohol. Mr. Whorton said that was correct.
Rev. Dr. Jane Foraker-Thompson, representing the Episcopal Diocese of Nevada and the Religious Alliance in Nevada (RAIN), began reading from a prepared statement (Exhibit C), asking the committee to “look at the big picture in the state of Nevada” by connecting various bills for a long-term solution. She believed S.B. 197 should be connected to S.B. 193, which made various changes concerning the department of prisons, and S.B. 519, which provided for establishment of programs for reentry into the community of certain prisoners and parolees. Dr. Foraker-Thompson said those bills were efforts to improve the system of corrections, to update the system to meet national standards, and to be more effective with the Therapeutic Communities and transitional programs. The combination of the bills would have the overall effect of reducing the recidivism rate and save millions of dollars over the years.
Dr. Foraker-Thompson’s past experience as a criminologist contributed to her knowledge and comparison of similar programs in other states. The average recidivism rate was 70 percent failure rate; a good community-based program could reduce that failure rate down to 20 percent. The cost of the community-based program was approximately a quarter of what it was to house people in the prisons.
Ben Blinn, a former inmate of the system, believed moving toward care and treatment, education of staff, and education of the inmates themselves were redeemable goals. Redemption for Nevada citizens that were incarcerated was important.
Pat Hines, Nevada Citizens United to Rehabilitate Errants (NV CURE) and People Organized for Psych Panel Reform (POPPR), supported S.B. 197. Ms. Hines believed even those with life sentences could benefit from this type of program. This program came from a Department of Justice grant called VOI/TIS, Violent Offender Incarceration/Truth In Sentencing. Ms. Hines’ one concern related to the matching funds coming from the Inmate Welfare Fund; she hoped that could be changed. Chairman Anderson asked if the program could not exist without the matching funds, would she support it? In other words, if the matching funds were deleted from the bill, the program would not happen. Ms. Hines did not believe that; she believed the matching funds would come from somewhere else. Chairman Anderson asked where she would suggest the matching funds come from. Ms. Hines suggested the matching funds come from the General Fund. Chairman Anderson said Senate Finance was not willing to pay for that, they had that opportunity and they rejected it. Ms. Hines believed the program would happen. She hoped in future sessions it would be considered to take the matching funds from somewhere else, so that the offender’s store fund would not need to charge 32 percent over cost. Chairman Anderson said if the choice was to have the program or not have the program, which was the choice. Ms. Hines said that was a loaded question. Ms. Hines conceded that at this time the matching funds were acceptable; in the future she hoped it could be changed. Ms. Hines definitely supported the program.
David Gibson, Legislative Team, Clark County Public Defender, and John Morrow, Chief Deputy, Washoe County Public Defender, both supported S.B. 197 with “Me, too” from the audience.
Ben Blinn, former inmate and concerned citizen, said the Inmate Welfare Fund had been abused in the past. He believed this was a good use of the Inmate Welfare Fund.
Chairman Anderson closed the hearing on S.B. 197 and entertained a motion of amend and do pass, the amendment being that to take care of the conflict with S.B. 300.
ASSEMBLYWOMAN OHRENSCHALL MOVED TO AMEND AND DO PASS S.B. 197.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
MOTION PASSED WITH MS. BUCKLEY AND MRS. KOIVISTO ABSENT FROM THE VOTE.
Chairman Anderson asked Assemblyman Oceguera to present the bill on the Assembly floor.
Chairman Anderson opened the hearing on S.B. 412.
Senate Bill 412: Revises various provisions pertaining to certain offenders. (BDR 14-798)
Clay Thomas, Deputy Chief, Division of Parole and Probation (P&P), Department of Motor Vehicles and Public Safety (DMV&PS), said S.B. 412 addressed issues that would streamline the registration process of sex offenders by eliminating duplication between the local jurisdiction and P&P. S.B. 412 would require the offender to register with the local jurisdiction, fill out the necessary paperwork that would be forwarded to the Criminal History Repository (CHR) where the tier assessment would be done and the community notification would be made. There was also enabling language that would allow for closer supervision of the sex offenders by putting restrictions on them, such as receiving prior permission from their P&P officer to be in a park area, to possess or go to an area where there was sexually explicit materials, or to access the Internet where they could obtain inappropriate information or materials considering their conviction. Mr. Thomas said Section 16, page 15, line 9 through Section 31, page 20, line 24, and Sections 33 through 48 dealt with juveniles, which he would not address.
Chairman Anderson read portions of Section 3 of the bill and asked how P&P would enforce the provision against accessing the Internet. Troy Dillard, Sex Offender Unit Manager of the Reno Office, Division of Parole and Probation (P&P), Department of Motor Vehicles and Public Safety (DMV&PS), said that provision was written to give the P&P officer discretion to allow or disallow access to the Internet, taking into consideration employability factors and the type of offender. The majority of criminal conduct uncovered in the supervision of sex offenders had been related to the Internet, particularly with child-based offenders. Thus, this provision gave the P&P officers the discretion to coordinate with the counselors and the offender on a case-by-case basis. The offenders who might be brought back for violation of this activity would not have a “single” image in their computer; the smallest number of images taken back was 1,100 pornographic images. One image of child pornography was a violation of the law; those would be investigated further. P&P officers had the ability to search computers and track the location of the images and where they came from; the P&P officers could tell if the images were generated from an e‑mail or if the individual was visiting sites.
Assemblyman Carpenter asked when an offender obtained prior approval from his/her P&P officer to be in certain restricted areas, how did that improve those situations or make it safer for the public. Mr. Dillard said the offender could not contact the victim. He was asking for the amendment based on the consideration of family reunification, typically offenses involving children. The P&P officer would not make the recommendation on his own, but would work with the counselors dealing with the victim and the offender. The conditions of the parole would need to be modified to cover family reunification. The addition of the “park,” one of several restricted areas mentioned in the bill, was overlooked in the first version of the statute. The restriction on these locations was an effort to prevent the offender from “looking for victims” and was targeted toward the child offenders. Assemblyman Carpenter was concerned that the bill did not address the P&P officer consulting anyone else in his decision. Mr. Dillard agreed there was nothing specifically in the bill, but it was the operating procedure within the agency; no one wanted the sole liability responsibility without involving the counselor.
Assemblyman Carpenter also questioned the provision regarding the notification of an address change “in person or in writing.” Mr. Carpenter believed it should be done only “in person”; “in writing” would be appropriate to notify the jurisdiction the offender was leaving. Mr. Dillard agreed the offender could inform a former jurisdiction “in writing,” but that the offender should appear “in person” for a new jurisdiction. The common practice had been that the offender appeared in person.
Chairman Anderson posed a scenario where an offender reported an incorrect apartment number, in error; could that offender correct the error with a phone call. Mr. Thomas said if the offender was no longer under the supervision of P&P, the local jurisdiction might do a follow-up visit to verify the information; if the offender was under the supervision of P&P, a P&P officer would verify the address. Mr. Thomas reported he had met with the Nevada Chiefs and Sheriffs Association (NCSA) regarding the registration process, the NCSA agreed to accept the responsibility.
Robert Teuton, Chief Deputy District Attorney, Clark County Juvenile Division, spoke on Sections 16 through 48, which were the juvenile sections of S.B. 412.
The juvenile provisions made five changes in the current law affecting juvenile sex offenders:
Chairman Anderson posed a scenario of an 11-year-old boy relieving himself in the park bushes; how would the district attorney’s office handle that situation. Mr. Teuton said it would be recommended to deny the charge outright as an indecent exposure; it did not meet the legislative intent. Or it could be changed to another charge such as disorderly conduct. Chairman Anderson continued his scenario with repetitive behavior as the boy grew. Mr. Teuton said on the second or third time, the probation officer would take a harder look at the situation and make recommendations to the district attorney’s office. Chairman Anderson’s intention was to avoid having the child classified as a juvenile sex offender; the “law of unintended consequences” could capture children whose only crime was being uncomfortable and tried to relieve themselves. Mr. Teuton said that situation might actually develop faster under current law than with the proposed amendment. It was Mr. Teuton’s belief the 300 cases of first-time juvenile sex offenses in Clark County did not meet the intent of the law. In order to “escape” the classification of juvenile sex offender, records had been falsified and charges changed.
Chairman Anderson did not want S.B. 412 to set up a child in a profile that would affect the rest of his life. Mr. Teuton agreed and believed S.B. 412 was “an interim step between where we need to be and where we are right now; a step in the right direction.” It was an appropriate step with room for discretion to handle a variety of situations.
Mr. Teuton continued his presentation of the bill modifications.
Chairman Anderson asked for clarification of the situation based on a rural community with only one high school. Mr. Teuton said current law would exclude the child completely. If the parents could not pay to transport the child to another school or if there was no alternative school available, the probation officer would meet with the victim’s parents to determine if they would consent to setting up a protocol that would allow the offender to attend the same school, but would prohibit any contact with the victim. If the victim’s parents or victim did not consent, the school had the authority to petition the court to enter an alternative plan of supervision; the court would order that over the objection of the victim.
Chairman Anderson posed a scenario involving a senior within a month of graduating, a dating relationship between two students that ended poorly and a sexual assault took place; what would happen to the two students. Mr. Teuton said the law would only apply “upon adjudication” and it would take about six weeks for adjudication to occur, the students could have graduated before the scenario would become a problem. A probation officer would be involved in the case and attempts would be made to protect the victim; informal agreements would be worked out between the school officials and probation officer. Chairman Anderson said the law needed to conform to reality.
Mr. Teuton said S.B. 412 tried to deal with a common situation requiring family reunification where the victim and perpetrator lived in the same house. After a period of three years when the perpetrator had complied with the conditions of probation, the therapeutic interventionist had recommended in writing that family reunification was appropriate, and the parents of the victim had consented in writing that the child be allowed to return to the home, then the provisions of school notification, alternate plans of attendance and supervision would no longer be applicable to the juvenile perpetrator.
Assemblyman Collins restated that the group of juveniles being discussed included those who had been convicted of kidnapping, imprisonment, burglary or invasion of the home with a separate hearing to determine if those crimes were sexually motivated. Mr. Teuton agreed. Mr. Collins asked if placement problems existed after exhausting every option, was that when the charge would be changed. Mr. Teuton disagreed. S.B. 412 made juvenile offenders committing sexually motivated crimes subject to the same provisions as adult sex offenders. S.B. 412 allowed relief of the school notification, alternate attendance and supervision requirements after three years’ probation had been completed; current law continued those requirements until the juvenile offender no longer attended school. Mr. Collins asked how S.B. 412 would reduce the group, changing the category of those in the “group of 300” from Clark County. Mr. Teuton replied that in 1997 a net was cast out that was not big enough to capture those committing sexually motivated crimes; at the same time, the net was too big because it caught those juveniles who should not have been brought in on their first offense.
Risa Lang, Committee Counsel, said there might be confusion over whom S.B. 412 applied to. Section 17 included those whose crimes were sexually motivated. Section 23 was limited to those crimes punishable as a felony, not misdemeanor offenses. Chairman Anderson said an important distinction was drawn between acts of juveniles and adults.
Assemblyman Gustavson asked for clarification where open and gross lewdness or annoyance/molesting a minor would not be considered a sex offense. Mr. Teuton clarified that indecent or obscene exposure, Nevada Revised Statutes (NRS) 201.220, in the criminal code was defined as a misdemeanor for the first offense and a felony for the second offense; the same penalties applied for annoyance/molesting a minor. Open and gross lewdness in the adult code was a misdemeanor for the first offense and a felony for the second offense. S.B. 412 would delay the classification of juveniles committing their first offense; they would not be classified as a sex offender until their second offense.
Mr. Teuton continued his presentation:
Assemblyman Carpenter asked if the offenses were punishable as a felony; were the juveniles tried as an adult. Mr. Teuton said S.B. 412 tried to identify those who were committing second offenses and had already been adjudicated for their first offense. All would remain in the juvenile system. The offense would be considered a delinquent act, which if committed by an adult would be a felony.
Chairman Anderson said depending on the crime committed and the age of the juvenile, the district attorney’s office would still have the discretion to charge a juvenile as an adult. Mr. Teuton agreed in cases as any other felony, but that provision was separate from the issues dealt with in S.B. 412.
Assemblyman Carpenter asked if second offenses were automatically considered a felony or was there any discretion. Mr. Teuton said that was not the case, S.B. 412 would actually give the district attorney’s office more discretion to deal with the individual circumstances. Mr. Carpenter understood the intent of S.B. 412 but did not believe it would fulfill those expectations in the real world.
Chairman Anderson asked Lieutenant Stan Olsen, Government Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department, to verify the previous discussion regarding sex offender registration and notification. Lieutenant Olsen verified the Las Vegas Metropolitan Police Department had a detail responsible for the verification of the location of sex offenders “coming off paper” from P&P. So long as P&P was willing to use the police department’s existing forms and the new computer system, the police department was willing to accept the responsibility for the registration and notification.
Captain Jim Nadeau, Detective Division, Legislative Liaison, Washoe County Sheriff’s Office, and Nevada Sheriffs and Chiefs Association, reported support and agreement to the language in S.B. 412. This was an effort to avoid the duplication of registering at both the sheriff’s office and the parole and probation office. It would cut down on the bureaucracy; the sheriff’s department was already forwarding information to the Criminal History Repository.
David Gibson spoke in support of the amendments to S.B. 412 because it gave the district attorney discretion to file the charges as sex offenses. Those would be cases left within the juvenile jurisdiction, not transferred to the adult jurisdiction. S.B. 412 allowed the district attorney’s office to look at the facts of the case and make a determination as to the motivation and possible deviant behavior. It allowed negotiation in the “true light” of the case.
Pat Hines hoped S.B. 412 would lead to cooperation and coordination between the probation officers and the parole board, resulting in the determination of “levels” of sex offenses; all sex offenses were not of the same severity. She supported changing the sex offender registration to a law enforcement responsibility, especially for sex offenders no longer under P&P supervision.
Ben Blinn believed a notarized statement, in addition to reporting to law enforcement and P&P, was important to provide more accountability. He thought it was important to be “more strict” rather than “less strict.” Mr. Blinn also felt the maturity levels, including mental retardation, of the children should be taken into consideration.
Chairman Anderson asked for further testimony and said Assemblyman Carpenter had suggested an amendment relative to Section 6, page 7. Mr. Carpenter felt if other expert testimony was considered in the P&P decisions, reference to that expert testimony should be included in the bill. Chairman Anderson asked Nicolas Anthony, Committee Policy Analyst, to work with P&P to develop such language, as well as language that would require “written” permission to be in a restricted area. Clay Thomas said that would not be a problem and would check to see if that could also be accomplished in an electronic manner.
Assemblyman Collins asked if the out-of-state trip permits could apply to multiple trips or did they apply to a single event. Mr. Dillard said the permits were limited to 30 days and were event specific; the permits could be renewed.
Chairman Anderson asked for further testimony. There being none, he closed the hearing on S.B. 412. The meeting was recessed.
Chairman Anderson reconvened the meeting and opened the hearing on S.B. 519.
Senate Bill 519: Provides for establishment of programs for re-entry into community of certain prisoners and parolees. (BDR 16-1477)
Assemblywoman Sandra Tiffany, District 21, said she had worked with Senator Lawrence Jacobsen, Western Nevada Senatorial District, on this concept during the interim considering transitional programming. During the first two weeks of session, the Department of Prisons, the Division of Parole and Probation, the Chairman of the Parole Board and the drug court judges got together to look at the bigger picture. The result was an alternative to incarceration considering how to save the state money, how to provide early release while providing safety to the community, who should be considered for early release, who would they be released to, and what kind of program would they be put in.
Chairman Anderson asked if S.B. 519 was a “revisit” of the interim study on recidivism done between the 69th and 70th Session, 1993-1995. Assemblywoman Tiffany was not aware of a connection.
Assemblywoman Tiffany said in an effort to ensure the early-release program was safe for the community there would be a three-level process to release an inmate. The first level of discretion was with the Director of the Department of Prisons, next would be the Director of Parole and Probation, and lastly would be the reentry court. The same process could be implemented for those eligible for parole. The community-based program would assist in finding housing, getting jobs, being reunited with families, and receiving appropriate social services.
Judge Peter Breen, Second Judicial District Court, Department Seven, Washoe County, submitted a letter of support (Exhibit D) but was not present to testify.
Chairman Anderson said there were some problems with Section 22. Assemblywoman Tiffany reported that had been addressed during the Senate hearings, but would answer any additional questions the Chairman had.
Dorothy Nash Holmes, Special Assistant to the Director, Department of Prisons (DOP), said S.B. 519 would allow the DOP to transition an inmate, within two years of release, back into the community through various programs with special court supervision. The director would be allowed to accept grants and donations to help fund the program, as well as contract with individuals to run the program. The courts had agreed to supervise the participants. Reentry courts had been well accepted throughout the country and federal funding had been made available, including an upcoming grant in the amount of $2 million that would be available in June 2001.
Ms. Holmes said inmates would need to qualify for the program and be within two years of release. No inmate convicted of a sex crime would qualify, no inmate could have a history of attempting to escape, and no inmate could be convicted of a violent crime within five years. There was also a provision within the bill where this transition program could be a condition of parole.
Ms. Holmes addressed Section 22 that dealt with sealing records. This language was required as a condition of the upcoming grant; current law was not sufficient to meet this requirement. Section 22 would allow a first time non-violent felony offender, who finished the transition programming and reentry court and remained “clean” for five years later, to seal his record on that one felony crime. This would give the offender the “benefit of the doubt” of their rehabilitation. NRS 213.155 and NRS 213.157 already allowed the parole board to restore civil rights after five years, if a person had remained “clean” and submitted an application. S.B. 519 would actually place additional requirements on that person before an application would be accepted.
Chairman Anderson said S.B. 519 would conflict with Assemblywoman Giunchigliani’s bill that restored civil rights; this bill had passed through the Assembly and was awaiting passage in the Senate.
Assemblyman Collins asked for clarification on the specific crimes, a single felony or multiple felonies in the same occurrence, and more information on the upcoming grant. Ms. Holmes said if a person was convicted of burglary and grand theft, but they arose from a single occurrence, that person could be eligible for the program because it was from the same event and it was a non-violent crime. The grant eligibility was two $1 million grants, good for five years. Regardless of whether the grant was received, the DOP was committed to the transition program.
Ms. Lang said in NRS 179.245, Section 23, a person was not allowed to petition the court to seal records relating to a conviction of any crime against a child or any sexual offense. This language might need to be added or referenced in Section 22 of S.B. 519 to guarantee that provision still applied. When the bill drafters wrote S.B. 519 it had not been considered. Ms. Holmes responded that S.B. 519 did not intend to create an exemption for sex offenders or anything in existing law; S.B. 519 applied to only non-violent offenders and already excluded sex offenders. Ms. Holmes would work with the bill drafters to amend the language in Section 22.
Assemblyman Carpenter asked if the courts were ready to “step into the program.” Ms. Holmes had already spoken with Judge Breen in Washoe County and Judge Jack Lehman, Eighth Judicial District Court, Las Vegas; this would be an extension of what was already being done. It would allow “non-drug” offenders to participate in drug court.
Chairman Anderson said the drug courts in Washoe County were created in 1993. In 1995, the drug court was extended to Clark County and both received funding in 1995, 1997, and again in 1999. If S.B. 519 were processed, would it need to be sent to the Assembly Committee on Ways and Means. Ms. Holmes said there was no request for funding in the bill; S.B. 519 was enabling legislation to begin working with other agencies, sharing information and applying for the upcoming federal grants.
Glen Whorton reiterated the criteria as outlined in Section 7 of the bill. The existing prison population was analyzed with the following results:
|
TYPE OF PRISONER/CONVICTION
|
NOT ELIGIBLE FOR PROGRAM |
ELIGIBLE CANDIDATES |
|
Total population |
10, 187 |
- |
|
More than two years from release |
3,387 |
6,800 |
|
Convicted of sex offenses or sexual misconduct in their record |
1,300 |
5,500 |
|
Escaped or attempted to escape |
366 |
5,134 |
|
Violent offenses but were not currently incarcerated for those offenses |
1,623 |
3,511 |
|
Maximum, close or unassigned custody level |
3,006 |
505 |
|
Those already on residential confinement |
181 |
324 |
|
Never been physically received by DOP … in a jurisdiction other than Nevada |
50 |
274 |
|
|
|
|
|
Women |
- |
34 |
|
Men |
- |
240 |
Chairman Anderson asked if the screening process was done to determine the most probable, successful candidates or reduce the risk economically. Mr. Whorton did not comment on an economic model; the program was based on the drug court model that had a high quality of supervision and treatment the person would receive. Chairman Anderson said the success rate of the regular court process was 20 to 30 percent; what was anticipated to be the success rate for this program. Would the 274 people make up the 20 to 30 percent success rate regardless of the program? Mr. Whorton expected a success rate of 70 percent due to the intensity of the supervision and the programming included. Also of consideration was the fiscal responsibility of the offender to reimburse the court for the cost of the supervision, in addition to not being a burden to the state. Chairman Anderson asked if the program would only help those people with the economic means to reimburse the court. Mr. Whorton said the economic status of the candidate was not considered in the screening process.
Ms. Holmes believed the reason the drug court was being considered again during this legislative session was because the criteria had been defined too tightly, people did not fit into the program. S.B. 519 defined the program broader than the drug court program. Nevada had experience with transitional programming reducing the recidivism rate to as low as 18 percent.
Assemblyman Carpenter asked if these new programs were going to “wear out” the judges. Ms. Holmes said there were a number of judges willing to participate in the program. Chairman Anderson said a number of drug courts would be “graduating” their first classes within the next couple of months and continued listing jurisdictions of drug courts in Nevada as well as those in California, Oregon, Florida, and Tennessee. Nevada might be the first state to move to a statewide program.
David Gibson, John Morrow, and Pat Hines stood in support of S.B. 519 without individual testimony.
Chairman Anderson asked for further testimony on S.B. 519. There being none, he closed the hearing on S.B. 519.
Chairman Anderson entertained an amend and do pass motion and clarified the amendments discussed.
ASSEMBLYWOMAN ANGLE MOVED TO AMEND AND DO PASS
S.B. 519.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
MOTION PASSED WITH MS. BUCKLEY AND MR. BROWER ABSENT FROM THE VOTE.
Chairman Anderson assigned Assemblywoman Angle to present the bill on the Assembly floor.
Assemblywoman McClain asked why the California Bureau of Investigation was referred to on page 9, line 25, of S.B. 519. Ms. Lang said that section dealt with the searches performed to determine whether to seal records; she was unsure why it was included. Chairman Anderson suggested it might be archaic language now that Nevada had the Criminal History Repository.
Chairman Anderson opened the hearing on S.B. 548.
Senate Bill 548: Makes various changes concerning sex offenders and other persons convicted of crimes. (BDR 14-512)
Clay Thomas said S.B. 548 was a “division bill” that addressed two issues: (1) revising provisions relating to the psychosexual evaluation, page 1, line 1 through page 4, line 23 and page 5, line 34 through end of the bill, and (2) the restoration of civil rights after being honorably discharged, page 4, line 23 through page 5, line 33.
Mike Ebright, District Administrator, Division of Parole and Probation, Department of Motor Vehicles and Public Safety (DMV&PS), clarified there were two different evaluations that were addressed in S.B. 548. The first was a certification evaluation, in existence for over 20 years and used to determine probation, that certified a person was not a danger to society or a threat to the moral safety of others. Two years ago the statute was added regarding the psychosexual evaluation that was done on a higher level sex offense and was a more detailed evaluation that included the person’s background, education, emotional state, psychological makeup and whether they were a threat to society. With the creation of that statute, duplication was created with one evaluation being paid for by the state through the Division of Parole and Probation and the second evaluation was conducted at a cost to the county through the defense attorney. One evaluation combining all aspects should fulfill the requirement.
Mr. Ebright also said there were some problems regarding who was qualified to conduct the evaluations; NRS 176.139, with the provisions for the psychosexual evaluation, used a definition spelled out in NRS 176.133 and NRS 176A.110, with the criteria for the certification evaluation, defined the person as a licensed psychologist or psychiatrist. Dealing with sex offenders was a specialized area; consequently those people involved with sex offenders required specialized training. Licensed psychologists or psychiatrists might need this specialized training, and others who were not psychologists or psychiatrists might already have the specialized training. S.B. 548 would eliminate the duplication, allowed the psychosexual evaluation to satisfy the requirements of the certification evaluation, and defined those who could conduct the evaluation to include a psychologist, psychiatrist, social worker, clinical social worker with a master’s degree in social work, a registered nurse with a master’s degree in the field of psychiatric nursing, and a marriage/family therapist.
Mr. Ebright continued with an explanation of Sections 4 and 5 that dealt with the restoration of civil rights. Many years ago it was realized that the legislative intent was to allow people to request restoration of their civil rights when honorably discharged from probation and after conducting themselves appropriately for a minimum of six months. S.B. 548 proposed clean-up language to ensure the statute actually conveyed the legislative intent.
Chairman Anderson asked if a school counselor, who had a master’s degree or Ph.D. and a marriage/family counseling certificate, could be eligible to conduct the evaluation. Mr. Ebright said currently they would be allowed to conduct evaluations as stated in NRS 176.133. Chairman Anderson asked how it was determined who would be used to conduct the evaluations. Mr. Ebright said there had been no screening process for those who would conduct those evaluations, although it did need to be established because it had been determined that those people should be specifically trained in how to deal with sex offenders.
Chairman Anderson said there had been criticism regarding evaluations that were not being conducted at the prison level. Difficulty had developed as to who observed the inmate and the creation of a chronological record of events. Chairman Anderson asked how the current statutes were being used. Mr. Thomas said there was an open dialog between P&P and the DOP to establish standards to be used for contracts to ensure the money paid for the evaluations would result in the product required. Chairman Anderson asked if S.B. 548 was enacted, it would move closer to the intent of the law and more psychosexual evaluations would take place. Those evaluations ordered by P&P were being done; Mr. Thomas could not speak for the DOP.
Assemblyman Carpenter asked if the standards were being lowered when taking out language “not a menace to the health, safety, or morals of others” and replacing it with “does not represent a high risk to re-offend.” Mr. Ebright believed S.B. 548 actually was raising the bar. Assemblyman Carpenter asked what did not represent a “high risk to re-offend”? Mr. Ebright said those decisions were made by those people qualified to conduct those evaluations. The wording was changed by the Senate at the last hearing because it was questioned what was meant by being a “menace to the health, safety, or morals of others.” Assemblyman Carpenter felt other language might be more appropriate. Mr. Ebright cautioned there was no way to determine if someone might re-offend; there were instruments that established the probability of that risk.
Assemblyman Collins asked if the language suggesting a standard of assessment had been deemed more appropriate for a defensible position. Mr. Thomas said with standards of assessment there would be levels and tiers to be looked at, instead of broad-based terms such as health, safety, and morals.
Assemblyman Gustavson said this process still put a great deal of faith and trust into one person conducting this evaluation. Mr. Gustavson asked for clarification regarding when the evaluation was being done, prior to entering prison or prior to release from prison. Mr. Ebright said the evaluations were being done prior to sentencing before a person could be granted probation, and in prison before a person could be released on parole. The evaluation addressed in S.B. 548 would be that which was done prior to sentencing. Assemblyman Gustavson queried that by narrowing the field of who could conduct the evaluations, were there enough qualified people who could conduct the evaluations. Mr. Ebright said there were enough qualified people available.
Assemblyman Nolan acknowledged that those who conducted the evaluations required a formal education and credentialing to know what they were doing. How was it determined that the bill included the “right” people to conduct the evaluations; did anyone consult with local experts to verify that criteria. Mr. Thomas said a consensus had been reached within a group of experts to work toward standardization to establish the training and criteria that would ensure that those people knew how to deal with sex offenders prior to conducting evaluations.
Bryan Gresh, Nevada State Psychological Association (NSPA), presented a proposed amendment (Exhibit E) that might address some of the issues previously discussed.
Dr. Earl Nielsen, Nevada State Psychological Association (NSPA), was contracted to conduct psychosexual assessments. The NSPA recognized the duplication problem, it was unnecessary and was costly. The NSPA supported most of S.B. 548 including changing the language from “health, safety or morals” to a concept of “assessment of risk,” but was concerned about a possible problem. P&P did an excellent job of contracting with those persons who would conduct the evaluations; but for those evaluations done outside of the P&P jurisdiction, there would not be the same controls and oversight as to competency. Dr. Nielsen asked that the language be removed designating others to conduct the evaluations, keeping the definition found in NRS 176A.110 specifying psychologists and psychiatrists to conduct the evaluations. What was missing from the statute was the qualifications for those capable of conducting the evaluations. Even though it was not in the statute, P&P did have a higher set of standards that were followed when letting contracts; P&P did not control any persons conducting evaluations outside of P&P contacts. By removing this language from S.B. 548, it would allow time for P&P and a group of experts to develop a better definition of what that standard should be.
Chairman Anderson asked if Mr. Nielsen’s proposed amendment had been approved by P&P. Did the proposed amendment raise the dollar cost to the department in some way if that standard was to be adopted? Dr. Nielsen said there existed a basic agreement that P&P could live with what was proposed in the amendment; it would only address those cases outside the department. It would not change any cost to the department.
Pat Hines recalled from S.B. 193, Section 105, page 59, lines 37 to 49, which made various changes concerning the Department of Prisons, mention was made regarding the Board of Medical Examiners. Ms. Hines felt similar language would be appropriate for S.B. 548 when considering incorporating any amendments. Chairman Anderson believed S.B. 193 had not passed out of the Senate; Ms. Hines commented S.B. 193 was still in the Senate Committee on Finance.
Chairman Anderson asked for further testimony on S.B. 548. There being none, he closed the hearing on S.B. 548, which would go back to the board.
Chairman Anderson adjourned the meeting at 12:01 p.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: