ASSEMBLY COMMITTEE ON JUDICIARY

MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

Seventy-First Session

March 22, 2001

The Committee on Judiciarywas called to order at 8:11 a.m., on Thursday, March 22, 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. 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. Kathy McClain

Mr. Dennis Nolan

Mr. John Oceguera

Ms. Genie Ohrenschall

COMMITTEE MEMBERS ABSENT:

Mr. Bernie Anderson, Chairman - Excused

GUEST LEGISLATORS PRESENT:

Assemblyman Doug Bache

Assemblywoman Chris Giunchigliani

Assemblywoman Sandra Tiffany

STAFF MEMBERS PRESENT:

Nicolas Anthony, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Cheryl O'Day, Committee Secretary

OTHERS PRESENT:

Robert Teuton, Chief Deputy District Attorney, Clark County District Attorney’s Office, Juvenile Division

David Gibson, Clark County Public Defender’s Office

Scott Cook, Chief Juvenile Probation Officer, Douglas County on behalf of Nevada Association of Juvenile Justice Administrators

John Morrow, Washoe County Public Defender’s Office

Karen Winckler, Las Vegas Criminal Defense Attorney on Board of Nevada Attorneys for Criminal Justice

David Schieck, Prior President and Continuing Board Member of Nevada Attorneys for Criminal Justice

Eric Lamont Garner, University of Nevada, Las Vegas, Student and Former Felon

Shirley Allen, Private Citizen

Jermaine D. Lloyd, Private Citizen

Liz Moore, Employee of Progressive Leadership Alliance of Nevada

Wayne Bridge, Former Felon/Sex Offender

Mujahid Ramadan, Private Citizen

Gary Peck, Director, American Civil Liberties Union

Elizabeth Pederson, League of Women Voters of Nevada

Gemma Waldron, on behalf of Nevada District Attorneys Association and Washoe County District Attorney’s Office

Capt. Jim Nadeau, Washoe County Sheriff's Office

Lt. Stan Olsen, Government Liaison, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department

Sandy Heverly, Executive Director, STOP DUI

Gary Booker, Chief Deputy District Attorney, Clark County District Attorney's Office, Vehicular Crime Unit

Sandra Allred, Deputy District Attorney, Clark County District Attorney's Office, Special Victim's Unit

Bruce W. Nelson, Deputy District Attorney, Clark County District Attorney's Office, Vehicular Crimes Unit

Mary Berkheiser, Associate Professor of Law and Director of Clinical Programs, William S. Boyd School of Law, University of Nevada, Las Vegas

Vice Chair Manendo called the meeting to order and confirmed a quorum was present.

Assembly Bill 294: Revises provisions pertaining to sealing of juvenile records. (BDR 5-690)

Vice Chair Manendo opened the hearing on A.B. 294 and welcomed the Chairman of the Committee on Government Affairs, Assemblyman Doug Bache.

Assemblyman Doug Bache introduced himself as representing Assembly District No. 11 and outlined A.B. 294. Assemblyman Bache felt that the bill’s language was convoluted and suggested amendment for the sake of clarity. His intent in drafting A.B. 294 was to bar juvenile offenders who had committed a violent felony from having their records sealed. Nonfelonious offenses and nonviolent felonies could have their records sealed at age 21 instead of age 24. Assemblyman Bache referenced Mr. Robert Teuton’s proposed amendments regarding automatic sealing of records. In opposition to that point, he felt the courts should have jurisdiction over the sealing of an individual’s records. He agreed that violent juvenile offenders were the main concern and that their juvenile records should remain accessible even when they became adults.

As a school teacher, Assemblyman Bache provided an example of a student arrested on campus by “Metro” for “home invasion.” Home invasion involved assault upon the residents and was not merely a “B&E,” breaking and entering. He confirmed that the example demonstrated the general type of offender whose records should not be sealed. Assemblyman Bache voiced his belief that violent acts performed at such a young age were probable indicators of the offender’s potential behavior upon reaching adulthood.

Robert Teuton introduced himself as Chief Deputy District Attorney, Clark County District Attorney’s Office (CCDAO), Juvenile Division, and addressed his written presentation (Exhibit C). He confirmed Assemblyman Bache’s assertions that, in general, the Clark County District Attorney’s Office supported the concepts of the bill. He took issue with page 3, lines 26 through 28, that required automatic sealing of juvenile records upon termination of the juvenile court’s jurisdiction. He believed confusion arose as the juvenile court had jurisdiction over those under age 21 who had committed a delinquent offense prior to their eighteenth birthday. The juvenile court’s general jurisdiction extended to age 21. He suggested an example where a juvenile was adjudicated, placed on probation or was committed to a training facility, and then paroled. Upon expiration of the probation or parole, the actual jurisdiction over that juvenile was terminated. Consequently, the language to automatically seal records upon termination of the juvenile court’s jurisdiction might have meant the general jurisdiction (i.e., the age of 21). It could also mean the actual jurisdiction -- termination of probation or parole. If so, a juvenile aged 13 or 14 could be adjudicated, complete probation, and have wardship terminated when jurisdiction was terminated. His record would be sealed when he still had four years left under the court’s jurisdiction. A “paper chase” would ensue where records were sealed and petitions were filed to unseal the records if the juvenile was brought back to court prior to his eighteenth birthday.

Mr. Teuton saw no need to keep juvenile records open past a twenty-first birthday. That was the last date the juvenile court could exercise jurisdiction. He supported the amendment that reduced the automatic sealing to age 21 from 24. Mr. Teuton supported no automatic sealing for juveniles adjudicated for sex offenses. The Clark County District Attorney’s Office, Juvenile Division wanted the section that allowed sealing of a juvenile sex offender’s records repealed. The District Attorney’s Office agreed records should not be sealed for violent juvenile felonies or where the threat of violence was involved.

David Gibson of the Clark County Public Defender’s Office (CCPDO) supported A.B. 294 and mostly agreed with Mr. Teuton’s proposal. He suggested a few points. First, if known, violent offenders or sexual predators’ identities needed to be provided. He felt society at large, television commercials and scheduled programs provided inappropriate exposure of unnatural mental stimulations that would not normally occur. Mr. Gibson saw that influence in his own children when they came home from school. Society did not do enough to provide young people with correct information, compared with what they saw on television, to assist in making good decisions. Too many children were unsupervised and functioning on their own. They acquired and acted on ideas outside their normal behavior patterns. Many of those offenders would never reoffend if counseled on mistakes and ramifications. He requested an amendment at page 2, lines 40 through 49, and page 3, lines 1 through 9, whether the offense would be a felony if committed by an adult. Second, he requested the committee consider whether enumerated offenses indicated a possible sexual predator. He agreed such information should follow that child as long as necessary. If better classified as youthful indiscretion, then those offenses should not follow the child the rest of their life. He felt there was room for reconsideration in that area.

Vice Chair Manendo asked Mr. Gibson if he had reviewed the proposed amendments. Mr. Gibson confirmed that he agreed with the proposals and supported A.B. 294 and that he had spoken to Mr. Teuton but not the sponsor.

Mr. Gibson advised that when juveniles perpetrated sexual offenses, they provided different situations. He discussed “statutory sexual seduction,” and how there are different descriptions as to 18-year-old and 21-year-old offenders, as well as “lewdness with a minor” and “open and gross lewdness.” Juveniles were convicted where their girlfriend or the person they were with was underage but within their age group and someone they naturally socialized with. Serious offense, especially involving violence, was never less than a felony. The Clark County District Attorney’s Office had an entire unit dedicated to juvenile offenses. He agreed that a sexual assault should not be reduced from a felony unless factors showed it was not a sexual assault.

Mr. Nolan wanted to ensure that no door was left open through which a 16- or 17-year-old with psychological problems or whose offenses were egregious could slip.

Mr. Gibson agreed and believed evaluations were performed to determine an individual’s danger to society. Determination needed to be made between serial offenders, one-shot bad-judgment offenders, and those technically offending within their social pool. Offenders were mixed together when they were not “one big group.”

Mr. Carpenter voiced his concern that the appropriate offenders received harsh consequences. Many acts had different meanings at different stages of life. He asked Mr. Gibson to reduce his suggestions to writing. Mr. Carpenter concurred that issues of the magnitude of A.B. 294 demanded the attention now being provided and that the actual intent be properly addressed.

Ms. Buckley echoed Mr. Nolan and Mr. Carpenter’s concerns. She appreciated the intent, especially in going after violent 16-, 17- or 18-year-old sexual predators. She saw cases through the Children’s Attorneys Project, which represented abused and neglected children, where parents had sexually abused their children and done other unimaginable things. She mentioned young children exhibiting inappropriate sexual behavior due to the treatment of their parents and the environment in which they were raised. The benefits of therapy and foster care in those regards were discussed. She felt that matters of that nature should not remain in their record for the rest of their lives. The question of how to separate the groups of offenders remained.

In response to the committee’s remarks, Mr. Gibson confirmed he would willingly attempt to provide appropriate language.

Vice Chair Manendo called Scott Cook to forward. Mr. Cook introduced himself as Chief Juvenile Probation Officer, Douglas County, and advised that he was speaking on behalf of the Nevada Association of Juvenile Justice Administrators (NAJJA). His concerns with Section 3, paragraph 2 were resolved by Mr. Teuton’s suggested amendments and felt they could support the bill with such amendment. He advised that NAJJA had the same concerns discussed by Mr. Gibson, that they wished to separate “the sharks from the minnows.”

Vice Chair Manendo discussed Mr. Cook’s noted position on the bill and Mr. Cook confirmed that, with the amendments suggested, he was now in favor of A.B. 294. Vice Chair Manendo called for further testimony in a supporting or neutral position on A.B. 294. He then called for opposing testimony.

John Morrow of the Washoe County Public Defender’s Office (WCPDO) stated he had spoken with Juvenile Division and there had been concerns regarding Section 3. He advised that the proposed amendments would resolve those concerns. He supported A.B. 294.

Vice Chair Manendo called for questions and further testimony before closing the hearing on A.B. 294.

Assembly Bill 328: Makes various changes concerning sealing of criminal records and restoration of civil rights. (BDR 14-122)

Vice Chair Manendo opened the hearing on A.B. 328 and invited Assemblywoman Chris Giunchigliani forward. Assemblywoman Giunchigliani introduced herself as representing Assembly District No. 9 and read from her prepared statement (Exhibit D). She reminded the committee that many ex-felons were now law-abiding citizens who were being discriminated against. They were frequently inhibited from obtaining better employment. She addressed society’s view that once a debt to society was paid, that individual deserved to be rejoined with society. Current statutes were instituted in 1971 and had not been changed in 30 years. She believed 15 years was an inappropriately long waiting period to seal felony records. As timeframes were not tied to rational guidelines, she felt the correctness of her proposed timeframes were negotiable. She welcomed discussion opposing positions to determine revised timeframes.

Assemblywoman Giunchigliani advised that A.B. 328 would not lessen stances on crime nor change procedure. Discretion still resided with judges. A.B. 328 simply allowed for an earlier sealing request and that, upon acquittal or exiting prison, former inmates be given written notice on their rights and how to apply. Assemblywoman Giunchigliani advised the committee of an error in Section 4, subsection (c), related to graduated penalties for domestic violence and DUI, which language should be deleted. Section 4, subsection 2, required petitioners to identify additional records to be sealed. The language of A.B. 328 was derived from Colorado state statutes. Section 4, subsection 4, changed “arrested” to “charged.” She felt the wait to seal records relating to an arrest should not be the same for those relating to charging or conviction. She stated that anyone could be arrested, which was not the same as being convicted. Section 6 confirmed that employers were not allowed to ask an applicant or employee whether they had records sealed. Sections 9, 10 and 11 changed probation period from five years to three years (Exhibit E). She advised that most states did not allow sealing of records regarding sexual crimes or crimes against children. A.B. 328 would not change that fact. She stated that the common waiting period for sealing felony records was between three and ten years and provided examples involving eleven states. She referenced an Arizona state statute (Exhibit F) that allowed the immediate sealing of misdemeanors and stated that it would save time and money for local jurisdictions, and another (Exhibit G) that involved the setting aside of judgment on discharge. Assemblywoman Giunchigliani’s remaining handout was a communication received from an individual affected by that legislation (Exhibit H).

Karen Winckler, a criminal defense attorney in Las Vegas and board member of Nevada Attorneys for Criminal Justice (NACJ), referenced NACJ’s letter of support (Exhibit I) and introduced David Schieck. She advised Mr. Schieck was a prior president and continuing board member of NACJ.

Mr. Schieck confirmed that NACJ supported A.B. 328. He confirmed that many individuals who had paid their debt to society lead a reduced lifestyle since their record followed them for up to fifteen years. He believed those persons had more to contribute to society than they were currently allowed.

Mr. Carpenter addressed Assemblywoman Giunchigliani. He agreed that the time should fit the crime and that an appropriate timeline should be followed.

Assemblywoman Giunchigliani stated that when the statute was enacted in 1971 no timeline was attached thereto. She felt that tying the timeline to categories of crimes would provide justification and rationale.

Mr. Brower asked Assemblywoman Giunchigliani how she would respond to those who said that A.B. 328 undermined our faith in Nevadans’ ability to consider an applicant’s past in a fair manner. Assemblywoman Giunchigliani responded that she did not believe A.B. 328 undermined an employer’s ability to fairly consider an applicant’s past.

Karen Winckler responded that she was an employer in Nevada, that she had experience with criminal defendants and understood the sealing process. Most of her clients were young men, ages 20 to 30, trying to find their place in life. She allowed that if she were hiring a secretary, she would probably not interview that former offender. Ms. Winckler then discussed language changes at page 3, number 4. She discussed how an arrest years after an individual’s release could bar them from sealing those previous records. No charges or conviction was required and a jaywalking arrest could constitute “a subsequent arrest.” She felt that police used that process at times to control situations and it was a burden.

Mr. Nolan advised he had experience with employment that precluded the hiring of ex-felons. Although he disliked broad stereotypes because many individuals did not fit, he found that many ex-felons lacked the skills to deal with hostile individuals in the course of their employment. Additionally, there was tremendous exposure and liability to employers. He referenced prior testimony from those within the prison system that if someone was going to reoffend, it was usually within two or three years of release. He felt that Assemblywoman Giunchigliani’s “numbers” were reasonable and was in overall agreement with her concept.

Vice Chair Manendo inquired whether Assemblywoman Giunchigliani had any further language available for clarification purposes on an amendment. Assemblywoman Giunchigliani believed Ms. Winckler referred to amended language in A.B. 328.

Eric Lamont Garner provided a written statement (Exhibit J) and introduced himself as a University of Nevada, Las Vegas, student majoring in communications and minoring in MIS. He graduated from community college with a 3.2+ GPA and supported three children. He had been convicted of a felony nearly ten years ago and had been ostracized by Nevada society. He had participated in a 120-day evaluation, was released from jail and was put on five-years probation. His probation ended, but his punishment continued as he was granted freedom without rights. Mr. Garner advised that most of the others in his 120-day evaluation had reoffended several times or had returned to prison. At Mr. Garner’s request, Mr. Brower reiterated his point and stated that perhaps he had too much faith in his fellow Nevadans’ abilities to be fair with ex-felons.

Mr. Garner provided an example as the best response available to him. He described applying with the Clark County School District, passing the tests and interviews, only to have someone belatedly notice his felony. He had basically been hired when he was told he did not qualify. He also described running for president of the community college in constant fear that someone would learn and disclose that he was an ex-felon. He considered himself lucky that his current supervisor was not concerned but he still feared being fired at some point. He stated that, when people found out he was an ex-felon, he was no longer “a nice kid who does a fine job” or someone “who is a respected member of the community.” He stated that “you are no longer a role model or a person who is trying to do something positive. You become an animal.” He made one mistake when he was 18-years-old but did not hurt anyone. He had hung out with the wrong crowd and gotten himself in trouble. Mr. Garner admitted that, when he graduated in two years, he most likely could not get a job.

John Morrow of the Washoe County Public Defender’s Office felt Assemblywoman Giunchigliani brought A.B. 328 in an attempt to bring sealing statute into a parallel with experiences within the corrections system. He confirmed that reoffenders did so rather quickly. It was appropriate that there be some waiting period to seal records. He admitted that, considering how quickly reoffenders do reoffend, the current waiting periods might be long and severe. He felt the statute could be revisited and offered an example that had stayed with him. A woman had been convicted of drug possession at a very young age. She later completed her higher education and contacted him while seeking law enforcement employment. He had to tell her she was barred by her felony until such time that the record could be sealed. Having worked so hard to improve her life, he had to tell her, “come back in five years.”

Shirley Allen introduced herself as a private citizen who was uncertain as to her feelings on A.B. 328. She advised that her records had been sealed but that the Washoe County courthouse had let her see some of her court records. She made notes on what she found in her files (Exhibit K). She stated that her defense lawyer was belittled by other justices and told to leave Reno. She believed that was why the justices in Washoe County wanted to have control of the court records instead of the county clerk. She had been conspired against and punished by the same people because of what her father had done. She had been harassed for years and her rights denied. She was concerned that sealing records would hide the identities of the people who had violated her rights.

Vice Chair Manendo requested Ms. Allen provide a copy of her documents to the committee secretary and called forward Jermaine D. Lloyd.

Mr. Lloyd introduced himself and stated that he felt Mr. Gardner was a prime example of how one could be rectified through the system (Exhibit L). He believed that if ex-felons were to reenter society, they needed to reconnect with their ability to vote. He felt a 15-year wait before sealing records denied those individuals their civil rights and that individuals without rights were more likely to drift back into crime.

Liz Moore, an employee of Progressive Leadership Alliance of Nevada (PLAN) and resident of District 18, testified in favor of A.B. 328 because it removed barriers to restoring voting rights to ex-felons. Nearly four million citizens were disenfranchised. That included nearly one million former offenders who had completed their sentences. The waiting period should be reduced from five years to three and the restoration process streamlined. She referenced A.J.R. 6 of the Seventieth Session where the chief of the Division of Parole and Probation directed his staff to provide parolees and probationers with handouts detailing how to reestablish their voting rights. Ms. Moore discussed a letter written by Deborah L. Brown and dated March 1, 2001 (Exhibit M). She then outlined steps that must be taken to reinstate voting rights and compared the fee required to a poll tax. Ms. Moore outlined a simpler process. She spoke of the African-American Political Caucus working with the Governor in January 2000 to draft an executive order ensuring that Parole and Probation adhered to the statute and inform ex-felons on restoring their civil rights. She inquired as to completion and whether statistics regarding individuals requesting reestablishment of their voting rights each year, how long the process took and how many restorations had been granted.

Vice Chair Manendo advised Ms. Moore and the assemblage at large that A.J.R. 6 of the Seventieth Session died in the Senate last session.

Mr. Brower admitted that he had been considering many of the same issues. He had opposed A.J.R. 6 of the Seventieth Session but felt the steps described should be taken. He was unaware of the outcome and stated that those matters should be followed up on.

Vice Chair Manendo took the opportunity to advise Ms. Moore and the audience on the ease and availability of the legislative Web site.

Wayne Bridge introduced himself as a felon whose voting rights would never be restored since he was a sex offender. He served eight years within the Nevada Department of Prisons and was on lifetime parole. During his incarceration he worked as a street-readiness coordinator for the Parole and Probation Department at Jean, Nevada for one year before program termination. Many inmates had voiced serious concern with their ability to regain their right to vote. He felt the timeframe involved affected whether individuals requested reinstatement of their voting rights. He reiterated his support for A.B. 328. Mr. Bridge described a program he ran at Indian Springs on health realization with the Insight Corporation. He felt it was an amazing opportunity for an ex‑felon on probation. Having been out of prison for two and one-half years, he had received a tremendous amount of compassion, understanding, sympathy and support. In closing, he referred to a saying about how one could determine how civilized a society was by its treatment of the incarcerated.

Mujahid Ramadan testified from Las Vegas and also referenced A.J.R. 6 of the Seventieth Session. He worked with Nevada Partners and agreed that earlier sealing of records would assist many disenfranchised individuals in reentering society. Mr. Ramadan discussed forgiveness for offenders. He stated that the process should not be so severe as to overwhelm ex-offenders. Mr. Ramadan quoted scripture as to treatment of the disenfranchised and advised that “people without a vote are people without a voice.” He stated that religious and community leaders as well as people of good intent and well-being should work in support of the disenfranchised. He agreed that individuals must accept responsibility for their actions and society must act to protect its members. However, he felt the subject punishment never ended. He attributed policy of permanent disenfranchisement of former felons to post-civil war, southern strategy to disenfranchise African-Americans. While the motivation may be different today, he believed the affects were still the same: African-Americans were still being treated with racial prejudice in America. He could not support a law that disproportionately reduced the minority participation in the political process and punished people indefinitely.

Vice Chair Manendo called for further testimony in Las Vegas in support of A.B. 328. Gary Peck, Director of the American Civil Liberties Union (ACLU) of Nevada, echoed previous support for A.B. 328. He believed it was consistent with the basic principles of our society -- that people not face barriers to full participation in economic, social and political life, once their debt to society was paid. He was particularly supportive of provisions that removed barriers for individuals who had not been convicted but merely arrested, charged, or tried. That matter went to the basic principle that one is presumed innocent until proven guilty before a court of law. He felt it was mystifying and deeply troubling that there was any question on that issue. A person’s rights should not be taken away where no guilt was proven. Mr. Peck drew the committee’s attention to provisions involving arrests, charges and trials rather than convictions. He referred to work card issues.

Elizabeth Pederson introduced herself as representing the League of Women Voters of Nevada and was in support of A.B. 328. She volunteered weekly at the juvenile detention center in Carson City and operated workshops with inmates on goal identification, self esteem, personal dreams and use of those dreams to move beyond instant gratification and things that might lead to crime. Her work with the justice system reaffirmed her belief that there was social ostracism against ex-felons.

Gemma Waldron identified herself as representing the Nevada District Attorneys Association (NDAA) and the Washoe County District Attorney’s Office (WCDAO). She advised that they were opposed to A.B. 328 to some extent. They had reviewed Sections 1, 2 and 3 of the bill and could support the concept behind those three sections. She pointed out that in Section 3, upon dismissal of a criminal action, the district attorney was allowed to dismiss without prejudice under certain circumstances – as in refiling a case. She requested amendment with respect to the notice provided to defendants in that situation. She appreciated hearing that Assemblywoman Giunchigliani agreed that Section 4 should be removed because there were enhancements utilized in DUI and domestic battery cases that would be affected by that sealing of records. Further, several other crimes were affected and enhanceable with penalties that were usable for up to ten years. Philosophically speaking, Ms. Waldron advised that it was the NDAA’s position that a long waiting period was established for sealing records because not everyone who went through the system was instantly rehabilitated. She believed A.B. 328’s provisions were designed to show that people had rehabilitated themselves. The only way to show that rehabilitation was over time.

Ms. Waldron agreed there were certain occupations where it was very important that employers knew whom they were hiring. For example, if the position involved handling money – that employer would want to know if the applicant had been convicted of embezzlement; a pharmacy would want to know if an applicant had been convicted of possession or trafficking. She felt it was perpetrating a fraud on employers if individuals were able to say, “oh, no, I’ve never been convicted” of a crime that was very germane to the employment opportunity that they were seeking. She had found merit in having long waiting periods to seal records, and not only for enhancement purposes. There was no probation allowed for second or subsequent burglary or home invasion charges. Sealing records removed district attorneys’ ability to show serial offenders to the court. In the instance of certain sex offenses, for example indecent exposure, a first offense was a gross misdemeanor and the second was a felony.

Ms. Buckley asked, under the current law, if that information was not available to law enforcement and could they not charge an individual as a multiple felon.

Ms. Waldron confirmed Ms. Buckley’s understanding. With the current waiting period of 15 years to seal most serious felonies, combined with the ten years old convictions were usable, provided assurance that previous offenses could be used for enhancement purposes.

Ms. Buckley inquired whether a policy could be established to treat categories of convictions differently. She inquired if it was not reasonable to decrease the waiting period to seal a nonviolent, nonsexual felony. She suggested that law enforcement still be allowed to consider previous arrests for purposes of enhancement in instances of reoffense.

Ms. Waldron responded that she did not know how that could be done, at least as A.B. 328 read. Sealed records were destroyed, she did not see how they could then be accessed by law enforcement or how law enforcement would even know they existed.

Mr. Carpenter inquired whether the Nevada District Attorneys Association’s opposition was a complete opposition or was some form of compromise available.

Gemma Waldron confirmed that the NDAA was not completely opposed. There was opposition to parts of Section 3, the ramifications upon enhancement as well as dismissal and refiling of a case. NDAA requested amendment with regard to Section 3. She saw no problem with an earlier time with respect to voting rights.

Capt. Jim Nadeau of the Washoe County Sheriff’s Office and representing Nevada Sheriffs and Chiefs Association advised they were concerned about the very limited times in A.B. 328 – “the 3, 2 and 1.” He was not testifying to recommend a time but to advise that those times were very short and would not be appropriate. Capt. Nadeau voiced his concern over the section that began on page 5, line 39. The statute was in conflict with several other policies, procedures and statutory requirements where criminal history was considered during certain application processes; work cards and investigators, for example. He addressed previous testimony regarding fingerprints and stated that checking an individual’s fingerprints was how they confirmed that individual’s identity. The records supervisor advised him that records sealing had increased nearly ten times in the past several years as a result of various diversion programs. He confirmed there was a working mechanism in place and they were currently sealing approximately 300 records per year.

Lt. Stan Olsen, Las Vegas Metropolitan Police Department and Nevada Sheriffs and Chiefs Associations, testified in opposition to A.B. 328 as written, for a number of reasons. He spoke of victims. The types of crimes that had evolved over the statute’s 30 years had become more violent, with more ramifications. He asked what of a victim scarred for life because of the crime against them? He agreed that not all felons were “thugs,” but many of them were. He discussed examples of offenders who would never be an asset to society. Those individuals needed to pay the price for the crimes they had committed. Law enforcement did not want someone who committed armed robbery, for example, did their prison time, had their record sealed and applied to be a police officer. Law enforcement agencies had real concerns with that possibility but were willing to work with the bill’s sponsor. Perhaps a graduated system of waiting periods for sealing was appropriate. He understood the testimony to mainly address voter rights as opposed to sealing records for employment purposes.

Ms. McClain felt A.B. 328 addressed two different issues: restoration of voter rights and sealing of records. She discussed how Nevada was behind on policy as to restoring voter rights and provided examples. She agreed that different waiting periods for different category of offenses or tying waiting periods to the number of years served might provide solutions.

Mr. Carpenter addressed the current use of DNA identification. Capt. Nadeau responded by advising the committee that fingerprinting was still much less expensive than DNA identification.

Sandy Heverly, Executive Director of STOP DUI, provided her written testimony (Exhibit N) and testified in opposition to A.B. 328. She was pleased that the DUI issues were deleted from the proposed legislation. She was also pleased to hear testimony that some 30-year-old laws were considered antiquated and pointed out that “.10 has also been on the books for 30 years.” Issues such as hit-and-run drivers, reckless driving, and involuntary manslaughter were not addressed in the bill and she advised that alcohol was involved when many of those offenses occurred. On behalf of STOP DUI, Ms. Heverly stated the proposal was outrageous. If passed it would simply clone “Clark Morse” and set victim rights back 20 years. She discussed Clark Morse and detailed inappropriate examples of how A.B. 328 only benefited criminals. She felt the proposed legislation was “incredibly insensitive to the victim perspective” and that victims of the perpetrators were completely ignored once again. She pointed out that dead victims also lost their right to vote forever.

Mr. Nolan stated his interest in the topic discussed. He agreed that ex-felons faced an inability to obtain gainful employment. Mr. Nolan asked Ms. Heverly if individuals who had paid their debt should not be able, after an appropriate period of time, to gain better employment. Ms. Heverly responded that she believed the proper waiting period had been established in the existing statutes.

Vice Chair Manendo advised that Chairman Anderson wanted it noted for the record that Cynthia Jay-Brennan had contacted him on A.B. 328 on March 21, 2001.

Gary Booker introduced himself as Chief Deputy District Attorney, Clark County District Attorney’s Office (CCDAO), Vehicular Crime Unit. He echoed Gemma Waldron’s remarks and referenced CCDAO’s Sealing of Records brochure (Exhibit O). He did not agree with Parole and Probation having the responsibility to provide information and paperwork to defendants. He advised that would constitute an unfunded mandate and would place a burden on the courts. Further, it would put judges in the position of practicing law from the bench. As he considered crime “a young person’s game,” Mr. Booker felt the 15-year wait to seal records provided district attorneys a proper assessment period. He admitted the system did stigmatize offenders to some degree and felt that was a tool to help teach kids to stay out of trouble since their record would follow them. He agreed that a graduated scale of timelines might be a solution.

Mr. Collins asked Mr. Booker about district attorneys’ abilities to be flexible, yet not allowing the flexibility to apply to the proposed legislation. He was concerned whether instructions were actually provided to interested parties. Mr. Booker responded the problem was when the court was being requested to do so. Providing instruction to a defendant would create an attorney-client privilege with the court. Mr. Collins ask whether instruction on restoring voting rights and/or sealing records could be included in what Mr. Booker described as a “plea canvas.” Mr. Booker advised the plea canvas was required in order to enter a defendant’s plea, he described the process and how the judge would in most instances not see a defendant again. Mr. Collins felt the information the subject of A.B. 328 could be disseminated at the time of sentencing and/or at the time of release. Mr. Booker advised that the information was available throughout the district attorney’s office but to initiate an additional procedure would require the funding.

Sandra Allred, Deputy District Attorney, Clark County District Attorney’s Office (CCDAO), Special Victim’s Unit, was concerned that misdemeanor offenders not be overlooked. She stated that battery domestic violence offenses were violent, escalated over time and were a continuing cycle. Both battery domestic violence and harassment were misdemeanors for first and second offenses and a felony upon a third offense. A.B. 328 would affect simple battery, which was also used for enhancement purposes. Ninety percent of victims were recanting and hostile to prosecution. Consequently, the entire history between the defendant and the victim came into play, no matter what the charge. Ms. Allred enumerated different ways district attorney cases could be harmed by the proposed legislation (Exhibit P). She also pointed out that police looked at the “priors” of individuals involved in domestic violence calls when determining who was the primary aggressor.

Bruce W. Nelson, Deputy District Attorney, Clark County District Attorney’s Office (CCDAO), Vehicular Crimes Unit, stated that there were 49 statutes that utilized enhancement and those offenses would be affected (Exhibit Q). A memorandum, dated March 19, 2001, presented sealing statistics for the past three years was also provided (Exhibit R). Ms. Buckley stated she believed a subcommittee should be appointed. She understood the intent of A.B. 328 to be the sealing of records without inhibiting law enforcement’s use of prior, serious offenses. Mr. Nelson questioned the possible procedures for sealing records without destroying them. He advised that a new system would need to be developed for each statute. Further, as written, A.B. 328 would allow a felon to have records sealed from prison as long as the waiting period had passed on his previous felony.

Vice Chair Manendo confirmed that Messrs. Nelson and Hillerby, of the Nevada State Board of Nursing and Dental Examination (NSBNDE), may work with a subcommittee, if appointed. Louis Ling of the Nevada State Board of Pharmacy (NSBP) provided information in opposition to A.B. 328 (Exhibit S). The Vice Chair also noted for the record that Paula Berkley had signed in as neutral on A.B. 328. He then closed the hearing on A.B. 328.

Assembly Bill 308: Revises provisions concerning waiver by juveniles of right to counsel. (BDR 5-464)

Vice Chair Manendo opened the hearing on A.B. 308 and called Assemblywoman Sandra Tiffany forward.

Assemblywoman Sandra Tiffany introduced herself as representing Assembly District 21 and discussed her handouts (Exhibits T and U). She advised the committee she wished to discuss NRS 62.085 which concerned the “unless waived” language. In some courts, juveniles waived their rights to counsel and admitted to crimes, including felonies, without receiving counsel as to ramifications of a plea or their right to trial. In Clark County, juveniles did not receive counsel unless and until they denied a charge. She felt most did not understand their rights upon admission of a crime but that they often just wanted proceedings closed. Only 40 to 50 defendants per week of the 300 cases heard received legal counsel. She was concerned with juveniles’ constitutional rights and asked for legislative clarification of those rights. Assemblywoman Tiffany enumerated individuals present during court appearance but that those persons were not necessarily the best advocates for the child. She felt a public defender or other attorney would best represent a defendant’s interests.

Mary Berkheiser, Associate Professor of Law and the Director of Clinical Programs, William S. Boyd School of Law, University of Nevada, Las Vegas, introduced herself as a juvenile justice advocate. She advised she did not speak for the university. She had observed the same processes within the Eighth Judicial District Court that Assemblywoman Tiffany described. She confirmed that juveniles had the same rights to counsel as adults via In Re Gault and those rights did not depend upon the type of charge brought. Intake officers often immediately diverted defendants into programs designed to help them and keep them out of the juvenile system. However, once the district attorney brought charges against them, the juvenile defendant was entitled to an attorney.

Ms. Buckley inquired as to timing within the juvenile system compared to the adult system. Ms. Berkheiser responded that it was not the same; it was any time a juvenile faced adjudication of delinquency due to the far ranging ramifications of being defined under delinquent issues. Ms. Buckley asked if that would apply to status crimes as well as other crimes. Ms. Berkheiser stated it only applied when the district attorney filed a petition. Ms. Buckley offered, although it was standard understanding that no child was incarcerated without having been represented by counsel, she had heard of instances. Ms. Berkheiser agreed, stating she had heard of occurrences through her students.

Ms. Berkheiser allowed that law permitted juveniles to waive their right to counsel, but only if it could be shown that they voluntarily, knowingly and intelligently had done so. That was a difficult determination for a judge to show on the record, especially when a juvenile did not know what an attorney would do for them and had no understanding of their rights. Additionally, 60 to 70 percent of children who entered juvenile court had mental health or emotional problems that impaired their judgment and decision-making abilities. Approximately the same number possessed learning disabilities or were borderline mentally retarded. Some death row inmates started as juvenile offenders. Perhaps something could have been done at the juvenile level if they had not entered pleas and amassed records very quickly. She did not believe A.B. 308 would require an attorney be assigned to every juvenile that entered the juvenile hall since many were diverted.

Ms. Berkheiser advised that A.B. 308 would not fundamentally change the nature of the juvenile court system nor any of the benefits it offered. Focusing on an individual’s interests and doing what was best for that individual, including protecting that individual’s rights, were not mutually exclusive. She pointed out the Nevada State Constitution did not allow fiscal issues to “trump” constitutional rights. A.B. 308 would “level the playing field.” The number of admissions might not be affected, but admissions would then be done knowingly and intelligently. Ms. Berkheiser described how a judge sat behind the bench, a district attorney and probation officer sat at a counsel table, and juvenile defendants held in detention were brought to court in shackles and handcuffs to stand by themselves. Often not even their parents attended.

Mr. Carpenter agreed that finances could not stand in the way a person’s rights. He asked why inappropriate practices were occurring if the Supreme Court had already ruled? Ms. Berkheiser did not understand why appropriate procedures were not being followed. She hypothecated that perhaps a practice simply developed and had become inappropriate. She voiced the additional concern of possible liability in inhibiting individuals’ constitutional rights. Mr. Carpenter agreed that the law enforcement and judiciary system in Clark County was opening itself up to possible litigation that might attract litigants.

Ms. Berkheiser proposed a “guesstimate” of what might make the system work. She stated there were currently two judges and three hearing masters for abuse, neglect and delinquency cases. Only one judge and two hearing masters heard delinquency matters. A first suggestion was to have enough public defenders to cover every juvenile courtroom.

Robert Teuton, Chief Deputy District Attorney, Clark County District Attorney's Office, Juvenile Division, stated A.B. 308 would preclude any juvenile from waiving counsel. There would be ramifications for the county and, although not prohibitive, costs would be an issue. Mr. Teuton had worked in the juvenile system for ten to fifteen years. He advised that different hearing masters had different hearing procedures. Often pleas were considered “preordained” due to priors on record and/or the juvenile wanted to move on and not spend more time in detention. He did not believe the juvenile court system should mirror the adult system. He stated that In Re Gault involved specific circumstances that prompted the Supreme Court to rule as it did. He suggested perhaps providing language that “a judge may not commit to a facility unless the juvenile has been represented by counsel at all stages of the proceedings.” That would not satisfy every constitutional issue, but would allow the district attorneys and courts to proceed in a reasonably expeditious and efficient manner without jeopardizing individual rights.

David Gibson of the Clark County Public Defender’s Office echoed Mr. Teuton’s remarks. The Public Defender’s Office (PDO) was still reviewing ramifications of A.B. 308. He confirmed that the PDO did not “pick up” a case unless the court appointed them.

Mr. Carpenter noted his concern over differences between hearing master procedures. Mr. Teuton responded that a pre-sentence investigation was performed before a plea hearing; therefore, all parties involved knew what the disposition was to be before an admission was entered.

Gemma Waldron, representing the Nevada District Attorneys Association (NDAA) and the Washoe County District Attorney’s Office (WCDAO), advised that rural county district attorneys were especially concerned because of the number of qualified attorneys available to cover hearings. She said that further review was needed due to the deletion of Section 2.

Vice Chair Manendo polled the assemblage for further testimony. He inquired whether John Morrow would be amenable to providing written information and Mr. Morrow assented. The Vice Chair then closed the hearing on A.B. 308 and adjourned the meeting at 11:00 a.m.

RESPECTFULLY SUBMITTED:

Cheryl O'Day

Committee Secretary

APPROVED BY:

Assemblyman Mark Manendo, Vice Chairman

DATE: