MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-First Session

February 12, 2001

 

 

The Committee on Judiciarywas called to order at 9:00 a.m., on Monday, February 12, 2001.  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

Mr.                     Jerry Claborn

Mr.                     Don Gustavson

Mrs.                     Ellen Koivisto

Ms.                     Kathy McClain

Mr.                     Dennis Nolan

Mr.                     John Oceguera

 

COMMITTEE MEMBERS ABSENT:

 

Ms. Barbara Buckley (Excused)

Mr. John Carpenter (Excused)

Mr. Tom Collins (Excused)

Ms. Genie Ohrenschall (Excused)

 

STAFF MEMBERS PRESENT:

 

Nicolas Anthony, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Deborah Rengler, Committee Secretary

 

OTHERS PRESENT:

 

Wm. Gary Crews, CPA, Legislative Auditor, State of Nevada, Legislative Counsel Bureau, Audit Division, Carson City, NV

Rocky J. Cooper, CPA, Audit Supervisor, State of Nevada, Legislative Counsel Bureau, Audit Division, Carson City, NV

Richard D. Pugh, CGRM, Deputy Legislative Auditor, State of Nevada, Legislative Counsel Bureau, Audit Division, Carson City, NV

Jackie Crawford, Director, State of Nevada, Department of Prisons, Carson City, NV

Rex R. Reed, Ph.D., Medical Administrator, State of Nevada, Department of Prisons, Carson City, NV

Dr. Theodore D’Amico, Medical Director, State of Nevada, Department of Prisons, Carson City, NV

Dr. Don Molde, Past Mental Health Coordinator, State of Nevada, Department of Prisons, Carson City, NV

 

 

 

Chairman Anderson called the meeting to order and noted that a quorum was present.

 

Chairman Anderson recognized Gary Crews, Legislative Auditor, who was joined at the witness table by Rocky Cooper and Richard Pugh to present the audit of the Department of Prisons Sex Offender Certification Panels.

 

Mr. Crews pointed out that the audit was the result of a special request by Assemblywoman Chris Giunchigliani. It went before the Legislative Commission in August 1999. The audit was conducted by Richard Pugh, Deputy Legislative Auditor, and Rocky Cooper, Audit Supervisor, covering the period of July 1, 1996 through December 31, 1999. The object of the audit was to assess the process used to select panelists, conduct hearings, and evaluate and certify sex offenders.

 

Rocky Cooper began reading selected portions from the Audit Report, State of Nevada, Department of Prisons, Sex Offender Certification Panel 2000 (Exhibit C).

 

Chairman Anderson interrupted Mr. Cooper to handle committee business regarding the introduction of Bill Draft Requests (BDRs) as outlined on Exhibit D.

 

·        BDR 1-526 -- Makes various changes to fees charged by justice of the peace and municipal court. (A.B. 103)

 

·        BDR 1-520 -- Increases number of district judges in eighth judicial district. (A.B. 109)

 

·        BDR 14-524 -- Makes various changes to provisions governing collection of delinquent fines, administrative assessments, fees and restitution. (A.B. 106)

 

·        BDR 15-481 -- Clarifies that person convicted of battery constituting domestic violence within 7 years before or after principal offense has committed prior offense for purposes of determining penalty. (A.B. 107)

 

·        BDR 1-444 -- Makes various changes to provisions related to county clerks. (A.B. 108)

 

·        BDR 15-425 -- Revises provisions pertaining to explosive and incendiary devices. (A.B. 105)

 

·        BDR 14-423 -- Permits law enforcement agencies to review certain criminal records to determine suitability of applicant for employment as peace officer. (A.B. 112)

 

·        BDR 15-421 -- Authorizes law enforcement agency to inspect certain records during investigation of senior abuse. (A.B. 111)

 

·        BDR 6-179 -- Revises provisions governing summoning of jurors by justice’s court in certain counties. (A.B. 110)

 

Chairman Anderson read a brief summary of each BDR and asked for questions or exclusions from committee members. There were no questions and no exclusions requested. With that in mind, Chairman Anderson called for a motion.

 

ASSEMBLYMAN MARK MANENDO MOVED TO INTRODUCE ALL NINE BDRs (as listed on Exhibit D)

 

ASSEMBLYMAN DENNIS NOLAN SECONDED THE MOTION.

 

THE MOTION PASSED BY THOSE PRESENT WITH MS. BUCKLEY, MR. CARPENTER, MR. COLLINS AND MS. OHRENSCHALL ABSENT.

 

Mr. Cooper continued testimony reading selected portions of the Audit Report (Exhibit C) from page 8 to page 14. Topics included (1) Sex Offender Panels Operate Without Adequate Guidance, (2) Three-Member Panels to Evaluate Sex Offenders, (3) Sex Offender Certification Process, (4) Number of Panel Meetings and Sex Offender Evaluations Fiscal Years 1997 to 1999, (5) Responsibility for Panel Activities, (6) Selection Process for Panel Members, and (7) System of Management Controls.

 

Mr. Pugh continued testimony reading selected portions of the Audit Report (Exhibit C) from page 15 to page 22. Topics included (1) Inconsistent Process for Conducting Meetings, (2) Inconsistent Process for Evaluating and Certifying Sex Offenders, (3) Psychological Panel Results Notification Form, (4) Certification Percentage Varies Widely Among Prison Institutions, (5) Sex Offender Evaluations and Certifications by Prison Institution Fiscal Years 1997 to 1999, and (6) Recommendations.

 

Chairman Anderson requested clarification on the inconsistent process of conducting a meeting listed on page 15 of the Audit Report (Exhibit C) with regard to the number of inmates in attendance at the meetings.  Chairman Anderson also asked if there was a comparable evaluation for mental health patients.  Mr. Pugh remarked that he was not aware of any such evaluations.

 

Gary Crews interjected the Audit Subcommittee had requested a BDR that would address Recommendation #1 listed in the Audit Report, page 21 (Exhibit C). The BDR proposes to clarify the responsibilities for the sex offender certification panels and would place the panels under the responsibility of the Department of Prisons. It would also identify who selects the psychologist and psychiatrists as panel members, as well as the qualifications of the designees. Mr. Crews said there may be a difference of opinion as to what those qualifications should be, but thought there should be ample time to evaluate that issue when the BDR went before the committee.

 

Chairman Anderson inquired about the BDR number.  Mr. Crews said he would determine the information for Chairman Anderson and get back to him.

 

Chairman Anderson noted that questions had been received in regard to the audit. They encompassed the need for the audit, concern for those caught in the system, and the equity involved in the process. The legislative oversight function was an important element to make sure the legislative relationship with the executive branch remained on an equal basis. It made sure that what everyone thought was the law -- was the law.

 

Chairman Anderson recognized Ms. Jackie Crawford, Director of the State of Nevada Department of Prisons (NDOP). Chairman Anderson noted that Ms. Crawford was warden at the Lovelock facility during the 1997 Legislative Session when the Assembly Judiciary Committee conducted a tour.

 

Ms. Crawford, Director, Department of Prisons, thanked Chairman Anderson for his introduction. Ms. Crawford started her comments with the statement that the audit was welcomed. Upon her arrival as the new Director, she met with staff to determine weaknesses, how to respond to the audit, and how to solidify and consolidate operations. An in-house committee was formed, which consisted of Dr. D’Amico, Dr. Rex Reed, and Dr. Carl Brandenburg. The committee worked diligently to dissect the problems, put them back together and come up with a viable proposal that would meet the needs of the state of Nevada, the sex offenders, and the legislature.

 

Although in the past there were a questions of responsibility for the program, Ms. Crawford said the Department of Prisons has now accepted responsibility for the program.

 

Chairman Anderson acknowledged Dr. Brandenburg in the audience and acknowledged that in the past Dr. Brandenburg had been the lead addressing these issues.

 

Chairman Anderson stated that these issues had been discussed in the last three sessions, as both state and national legislation have tried to protect society from sexual predators. Chairman Anderson acknowledged Dr. D’Amico and Mr. Reed and encouraged them to proceed with their presentation.

 

Dr. Ted D’Amico, Medical Director, Nevada Department of Prisons (NDOP) began his comments by introducing the issues that would be discussed. “Sex offender programs are not a pleasant thing to discuss and they are not a pleasant thing to have to handle either, in the community or behind our security perimeters.” There are problems identifying the individuals, trying to treat those individuals, and then releasing them to the community. The Lovelock facility had proven to be an ideal facility to house and treat sex offenders because protective custody was provided, and also the treatment program provided for those identified as sex offenders. An intensified treatment program was being offered to approximately 500 inmates, and would become an objective guidance for the panels to review.

 

Dr. Rex Reed, Medical Administrator for the Nevada Department of Prisons (NDOP) was prepared to go through each of the recommendations made by the audit group and give a response for the committee.

 

Chairman Anderson asked to be brought up to date as to how the process was developed and how it would be implemented in the prison system. The committee previously heard from Parole and Probation regarding the ratio of 1 to 45 indicating one parole officer to 45 released sex offenders. Chairman Anderson wanted to know how sex offenders qualified for release, and how the prison system ensured that when offenders returned to the street the checks were going to take place. Those two issues were a major part of the audit. 

 

Dr. Rex Reed tried to give a short synopsis of the how the psych panel process works. First inmates were identified that would be subject to psych panel. Once a month, the classification planning staff used the Nevada Correctional Information System (computer system) and went through each individual inmate’s sentence structures, looked for all the “guilty” findings and what they were guilty of, and printed a listing of those inmates subject to psych panel. That list would be forwarded to staff in the institutions in the field. A psych panel would be arranged. The inmate would be taken before the psych panel, evaluated and certification would be determined. If the inmate was not certified, he would not be eligible for parole. If the inmate was certified for parole, the inmate and his record would be sent to the parole board. The parole board would then determine whether to grant parole. Psychology and psychiatry staffs at each institution use various types of group and individual therapy to conduct observations. The staff in the field would watch how the inmates interacted in the group and individual therapy sessions, and records were maintained in the inmate files. Each member of the panel reviewed each inmate file.

 

Dr. Reed addressed the six recommendations (Exhibit C, pages 21 & 22) made in the audit.

 

1.      Request legislation to: (1) Clarify the responsibility for the sex offender certification panels; (2) Identify who selects the psychologist or psychiatrist panel member, and (3) Establish qualification requirements to designee panel members.

2.      Ensure management functions such as directing and controlling program operations, and reviewing performance were carried out.

3.      Provide formal, periodic training to panelists on evaluating and certifying sex offenders.

4.      Establish policies and procedures for conducting certification hearings, selecting a chairman for each hearing location, and ensuring compliance with the open meeting law.

5.      Establish policies and procedures to ensure a consistent process for evaluating sex offenders.

6.      Develop policies and procedures to define and document the statutory observation requirement is met.

 

In response to the first recommendation, NDOP proposed amendments to both the Nevada Revised Statutes (NRS) 213.1214 and NRS 207.193. In BDR 16-435 the NDOP was identified as the department in state government that would administer the psych panel process. It also identified the Director as the person who selected the psychologist or psychiatrist member of the panel by specifying two department appointees as either directly appointed by the Director or being employees of the department.  The administrator of the Division of Mental Health appointed the third member of the panel. The BDR also proposed that each member of the panel be a licensed psychologist or psychiatrist.

 

Dr. D’Amico reported that previous instructions from the legislature established that the panel should consist of three members: (1) a licensed psychologist or psychiatrist in the state; (2) either the head of the Mental Health Division or his (her) designee; and, (3) the Director of the Department of Prisons or his (her) designee.  NDOP did not have any input on that decision.

 

In response to recommendation two, Dr. Reed relayed the NDOP had done a number of things to tighten the management of the psych panel process:

 

1.      The treatment program had been centered at the Lovelock Correctional Center, where records were kept for sex offenders. Dr. Reed went on to say that not all sex offenders were housed at the Lovelock facility. Exceptions would be those that are violent, those that are female, those that had enemies at Lovelock (the number one reason all sex offenders were not at Lovelock), or illness might have required that the offender be close to a regional medical facility in Carson City.

 

2.      NDOP has recommended that there be a single psych panel that would consist of three members with two alternates. There has been a psych panel at each institution in the field: a single psych panel would replace those. The new psych panel would travel or might use video conferencing to all the other institutions in the system.

 

In response to recommendation three, Dr. Reed pointed out that each member of the panel would attend a sex offender training course every year. NDOP had surveyed what types of sex offender training programs were available in the field, and three had been identified.

 

In response to recommendation four, Dr. Reed reported that NDOP was in compliance with the open meeting law. In the matter of selecting a chairman for the panel, it was addressed in the BDR and would be the responsibility of the Director of the Department of Prisons. NDOP was in the process of rewriting every administrative regulation in its books, which would include those involving the sex offender panel.

 

In response to recommendation five, Dr. Reed believed that the single psych panel would go a long way to ensure that policies and procedures were consistent. A permanent chairman was proposed to ensure consistency. A single location (Lovelock) where all the records were kept would also be an advantage.

 

In response to recommendation six, Dr. Reed commented on the Nevada Correctional Information System (the main computer system for tracking inmates and their activities). NDOP has proposed to develop an element in that Nevada Correctional Information System that would track how inmates who were subject to a psych panel would participate in various group and individual therapy sessions that were available.

 

Chairman Anderson asked if additional hardships were experienced locating the offenders away from the central population of Clark County, and was it in their best interest to be removed from their family members.

 

Ms. Crawford replied that a very thorough study was done showing that over 65 percent of existing sex offenders were housed at Lovelock. Sex offenders in general population require protective custody. Lovelock has evolved into a protective custody environment that functioned very well. It created a freer flowing environment, enabling inmates to participate more readily, and the environment was safe for them from other predators. It was believed that Lovelock, although remote, had the culture and program established that could address issues more readily. Because such a large percentage of the population of sex offenders was already at Lovelock, it has not been an impediment to the programs and the rehabilitation.

 

Chairman Anderson reiterated his concern regarding the proximity of family during the treatment period.  Ms. Crawford stated that a sex offender facility is proposed for southern Nevada, but her findings indicated that family bonding was already there and the inmates felt very comfortable at Lovelock. It was difficult when trying to maximize resources and consolidate programs, to scatter that segment of the population throughout the state, because it was not cost effective. 

 

Chairman Anderson raised concerns brought by other committee members regarding women not receiving programs and the importance of proximity to family. While responding to the audit, there should be a focus on where the programs would go.

 

Dr. D’Amico commented on the “enormity” of the sex offender program. Of 10,000 inmates, 1,500 sex offenders had been identified that could be possible candidates for the sex offender program.  Lovelock houses approximately 1,200 inmates, of which 600 inmates would start the sex offender program.  Three hundred inmates, located at Southern Desert Correctional Center, were presently involved in a sex offender program. It was proposed to match the two programs between the north and south with a stair step process. The most intense program would be at Lovelock, and then inmates would be allowed to move to the southern Nevada area. 

 

Chairman Anderson raised a question regarding the handout. What was Exhibit E?  Dr. Reed said the handout (Exhibit E) was provided for informational purposes to give the committee a synopsis of what went on with the sex offender audit.

 

Chairman Anderson asked about the portion of inmates subject to psych panels.  Dr. D’Amico did not have information or numbers of inmates subject to the psych panel law.

 

Dr. Reed reiterated that Dr. D’Amico mentioned the total number of sex offenders in the system, but not all were subject to the psych panel process. Dr. Reed estimated that during the period of November 1999 to October 2000 an average of 33 psych panels were conducted every month, but that number could fluctuate between 350 to 400 panels a year.

 

Chairman Anderson asked for clarification on the pass-fail percentages of those panels; were the instruments used similar to those in other parts of the country?

Dr. D’Amico stated there have been problems in the past, as to who went before the panel, what was the criteria, and how it was measured. It was hoped that when NDOP “owned” the psych panel and the treatment program, the procedures would improve so that a better candidate would go before the sex offender panel.

 

Chairman Anderson asked whether the pass-fail ratio showed an acceptable rate of success. Was the panel doing its job?  Dr. D’Amico brought to light another problem that had existed in the past -- objectivity. Those who had treated the patient or had been in custody of the patient were not objective to make decisions about the patient. If the program was a fragmented treatment program or did not have consistent and continuous observation of the individual, the panel was not able to make an accurate and objective evaluation.

 

Dr. Reed addressed an element of Chairman Anderson’s question in regard to how Nevada’s test process compared to others used nationwide. The interest in sex offenders, how they are treated and how they are released into society was fairly new. Consequently, few studies have been completed comparing Nevada’s process with other states. It was uncertain as to whether the same kind of inmates were reviewed, and if inmates convicted of sex offenses were not sent to psych panels in other states, but would be sent to psych panel in Nevada.

 

Chairman Anderson stated that the goal was to not release sex offenders that were not ready to be released, and that there was a common objective process by which the inmates were evaluated. Chairman Anderson concurred with Dr. D’Amico’s statement that the same individual would not control the instrument used for the evaluation for release. That it was crucial to have a legitimate process in terms of moving the paperwork along. It should not be an issue to save the state of Nevada money by putting someone out on the street.

 

Chairman Anderson asked for questions from the committee and spoke briefly about the content of two BDRs that were still being drafted.

 

Assemblyman Nolan asked if, in the future, the sex offender treatment program would become compulsory, or if inmates diagnosed with a problem that would respond to treatment would be compelled to take the treatment.

 

Dr. D’Amico responded that the treatment should be offered as a compulsory program, which would also require a search through the system to identify sex offenders that may not have been identified in the past.

 

Chairman Anderson asked the research and legal department to review the BDR specifically for that element so that an appropriate amendment would be drafted if necessary.

 

Assemblyman Nolan agreed that the most qualified people should be on the board and that it was an excellent idea to have some standardization of the panel. There was still concern regarding the location of Lovelock and providing the most qualified people on the panel.

 

Ms. Crawford concurred regarding the training of the panel members. NDOP had looked at a whole spectrum of sex offender programming. By having the opportunity to focus on the individuals, to train staff to manage them, and set up a system to interview and determine whether the program had been effective, Lovelock had proven the place to be, regardless of the distance. Again, the inmates would be allowed to “step down” and graduate to a different environment closer to home. If inmates were originally housed in Clark County, the prisons in northern Nevada might be vacant. An attempt had been made to maximize resources, provide the best program, and not release the wrong people. This is a new program with training coming from the National Institution of Corrections. It was hoped that within a period of eight to nine months results would be evident. Other states had consolidated their populations in order to focus on the same respective areas because it was a difficult population to manage.

 

Chairman Anderson recognized Dr. Donald Molde who retired from the NDOP last summer.

 

Dr. Molde commended the committee for being concerned about the families of those incarcerated at Lovelock. Family members are generally not involved in treatment. The way that families might be impacted would be with respect to the psych panel proceedings, which was now covered by the open meeting law. If the legislature chose to continue the psych panel and allowed it to operate under the open meeting law, then families living at a distance (such as Las Vegas) would need to take advantage of such capabilities as video or teleconferencing. 

 

Dr. Molde disagreed with some aspects of the audit. His experience with the psych panel went back 20 years. As Mental Health Director in 1995, he received a call from the Office of the Attorney General regarding the issue of consistency in the operation of psych panels from one institution to the other. Based on further discussions with Dr. Brandenburg, the program was improved to include five criteria for evaluation used by psych panels.

 

Chairman Anderson acknowledged the work Dr. Molde had contributed to the process. Chairman Anderson asked if the legislature had sufficient information to move forward with reaching a reasonable implementation of a model showing how a psych panel should operate, and what service the opening meeting law provided in relationship to the psych panel?

 

Dr. Molde was confident that the legislature had the information needed to make a decision in regard to the continuation of the psych panels.

 

Dr. Molde went on to say that the open meeting law in respect to the psych panel offered very little to the public, families of inmates, victims, or anyone who chose to attend. The essence of the psych panel was the individual pre-sentence investigation report that was not a public document. And because of that, the actual in-depth review of the case done individually was not something the public could view because of the use of confidential information. The open meeting portion of the panel was the decision after-the-fact as to how the case would be handled relative to certification or not. The public would only be able to hear the final decision, but not the process to reach the decision.

 

Dr. Molde recommended that legislation be changed so that the decision of the psych panel would not be binding upon the parole board. Currently, if the psych board could not certify an individual, that individual would not be eligible for parole. If that provision was removed, and the psych panel review was simply advisory to the parole board, then there might be a better argument to exempt the psych panel from the open meeting law since it would be less obligatory upon the parole board with respect to its deliberative activities. In conclusion, Dr. Molde did not believe that the open meeting law fit well with the psych panel.

 

Chairman Anderson stated that he understood what Dr. Molde was saying but did not necessarily agree with his opinion. If the psych panel said no and the parole board said yes, Chairman Anderson believed it would place the state in a position of liability beyond belief.

 

Chairman Anderson continued with a question relative to the possibility of bringing an entire group of sex offenders into a common setting (page 16, Exhibit C), would this not raise the awareness of other offenders and were we confusing the therapy sessions, observations and the psych panel review?

 

Dr. Molde clarified that treatment programs are group sessions. The offenders get to know each other and their crimes during those sessions. With respect to the psych panel review of each case that forms the decision for certification or non-certification, they had always been conducted individually. There had never been a group assessment of everybody’s case at the same time as it would be too cumbersome. What the audit referred to was the open meeting portion of the meeting where the certifications were discussed, announced and granted. During the open meeting portion of the review, it was the call of the director (or director’s designee) as to how that would be handled. There was nothing in the open meeting law that said one inmate could not sit in another inmate’s portion of the open meeting.

 

Assemblyman Nolan asked if there would be any value in bringing together prison staff that conducted the treatment program with those private practitioners that continued the ongoing treatment program after inmates had been released.

 

Dr. Molde clarified that Assemblyman Nolan was talking about community providers that received the individuals upon parole, and should they be allowed to collaborate with prison staff prior to the inmate leaving the institution. The answer was “yes,” the prison staff was often in need of information about community referral sources, what’s available and the cost. Dr. Molde did emphasize that once the inmate left the NDOP, the NDOP had no further responsibility for that inmate. If the inmate was on parole, it became the Parole and Probation Department’s responsibility. If the inmate expired his sentence, then he was on his own. Assemblyman Nolan’s suggestion would bridge the gap, because “when the gate shuts” the NDOP was out of the follow-up picture, and that was not necessarily the best concerning the types of cases that had been discussed.

 

Chairman Anderson asked Director Crawford to clarify any responses or concerns relative to the open meeting law in regard to prisoners demanding to attend a psych panel meeting.

 

Ms. Crawford stated that in her experience at the Lovelock Correctional Center, once the open meeting law was implemented, the logistics became very important because it was necessary to separate victims from inmates and families. The Lovelock facility was large enough to separate the entities and still function well. Unless there was a lot of controversy, or the victims were very adversarial, then inmates might not attend the meetings.

 

Chairman Anderson was not talking about those meetings where the inmate was the subject of discussion. He said he was talking about someone else in the prison population, from the therapy group or any other prisoner, utilizing the open meeting law to attend the meeting.

 

Ms. Crawford apologized for misinterpreting the question. The answer to Chairman Anderson’s question was ”absolutely not.” Policy in the institution would restrict anyone from the general population from attending a meeting “while incarcerated.” 

 

Chairman Anderson had hoped that was not the intention.

Ms. Crawford announced that technology was planned to provide closed-circuit settings giving victims who could not travel accessibility to the proceedings. It was an excellent move to explore that technology since there were a lot of victims who wanted to be at the hearings but they did not want to personally attend and/or be involved in the emotions.

 

Chairman Anderson felt that would be essential if the process was to continue on.

 

Chairman Anderson recognized Mr. Pugh, Mr. Cooper and Mr. Crews, giving them a last chance for comment or response.

 

Mr. Crews stated that the audit agreed with Dr. Molde regarding how the process worked.

 

Chairman Anderson adjourned the meeting 10:45 a.m.

 

 

RESPECTFULLY SUBMITTED:

 

 

 

Deborah Rengler

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Assemblyman Bernie Anderson, Chairman

 

 

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