MINUTES OF THE meeting

of the

ASSEMBLY Committee on Judiciary

 

Seventy-First Session

March 28, 2001

 

 

The Committee on Judiciarywas called to order at 8:08 a.m., on Wednesday, March 28, 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

Mrs.                     Sharron Angle

Ms.                     Barbara Buckley

Mr.                     John Carpenter

Mr.                     Jerry Claborn

Mr.                     Tom Collins

Mr.                     Don Gustavson

Mrs.                     Ellen Koivisto

Mr.                     Dennis Nolan

Mr.                     John Oceguera

Ms.                     Genie Ohrenschall

 

COMMITTEE MEMBERS ABSENT:

 

Mr.                     Greg Brower (Excused)

Ms.                     Kathy McClain (Excused)

 

GUEST LEGISLATORS PRESENT:

 

Assemblywoman Chris Giunchigliani

Assemblywoman Sheila Leslie

Assemblyman Bob Price

 

 

 

STAFF MEMBERS PRESENT:

 

Nicolas Anthony, Committee Policy Analyst

Risa B. Lang, Committee Counsel

Rebekah Langhoff, Committee Secretary

 

OTHERS PRESENT:

 

Hannah Zive, Legislative Intern for Assemblywoman Chris Giunchigliani, Carson City, Nevada

Mark Blaskey, Chief Deputy Public Defender, Clark County Public Defender, Las Vegas, Nevada

Ole J. Thienhaus, M.D., Professor and Chairman, Department of Psychiatry and Behavioral Sciences, University of Nevada School of Medicine, Reno, Nevada

Richard G. Weiher, Ph.D., Clinical Psychologist, Adult and Child Psychology, Reno, Nevada

Robert Payant, Catholic Legislative Liaison, Nevada Catholic Conference, Reno, Nevada

N. Patrick Flanagan, Representative, Nevada Coalition Against the Death Penalty, Reno, Nevada

Philip Kohn, Special Public Defender, Clark County Public Defender, Las Vegas, Nevada

Ben Blinn, Private Citizen, Carson City, Nevada

Jane O’Sullivan Fransioli, Representative, Christ the King Catholic Community, Las Vegas, Nevada

Charles T. Durante, Priest, Diocese of Reno, Reno, Nevada

Richard Gammick, District Attorney, Washoe County, Reno, Nevada

David F. Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, State of Nevada Attorney General, Carson City, Nevada

David Schwartz, Chief Deputy District Attorney, Clark County District Attorney’s Office, Las Vegas, Nevada

David Ward, private citizen, Reno, Nevada

Dr. Richard Siegel, Professor of Political Science, University of Nevada, Reno and State President, American Civil Liberties Union of Nevada, Reno, Nevada

Brian Lahren, Ph.D., Executive Director, Washoe Association for Retarded Citizens, Reno, Nevada

W. Larry Williams, Ph.D., Associate Professor, Department of Psychology, University of Nevada Reno, Reno, Nevada

Michael Pescetta, Attorney, Las Vegas, Nevada

Robert Stoeckig, Chancellor, Dioceses of Las Vegas, Las Vegas, Nevada

Will Ewing, Team Chief, Homicide Unit, Clark County Public Defender’s Office, Las Vegas, Nevada

Larry Struve, Advocate, Religious Alliance of Nevada (RAIN), Sparks, Nevada

Phil Hansknecht, Ordained Minister, Evangelical Lutheran Church in America, and President, Lutheran Advocacy Ministry in Nevada, Las Vegas, Nevada

Victor-Hugo Schulze, Deputy Attorney General, State of Nevada, Attorney General, Las Vegas, Nevada

Gemma Waldron, Deputy District Attorney, Washoe County District Attorney and Legislative Representative, Nevada District Attorneys Association, Reno, Nevada

John Morrow, Chief Deputy, Washoe County Public Defender, Reno, Nevada

Elmer R. Rusco, Representative, Nevada Coalition Against the Death Penalty, Reno, Nevada

Ben Graham, Legislative Representative, Clark County District Attorney, Las Vegas, Nevada

Captain James Nadeau, Legislative Representative, Nevada Sheriffs and Chiefs Association, Washoe County Sheriff’s Office, Reno, Nevada

 

Roll was called and Chairman Anderson reviewed the committee’s schedule for the coming weeks.  He then opened the hearing on A.B. 327.

 

Assembly Bill 327:  Revises provisions governing capital punishment. (BDR 14-1082)

 

Assemblywoman Chris Giunchigliani, Assembly District 9, was the primary sponsor of A.B. 327 and Hannah Zive, Legislative Intern for Assemblywoman Chris Giunchigliani presented the committee with background and information on the bill (Exhibit C).  Ms. Zive stated the policy issue regarding the applicability of the death penalty to juveniles needed examination by the committee in light of new scientific evidence regarding adolescent development.  Ms. Zive reviewed the following evidence:

 

 

 

 

 

 

 

 

 

Ms. Zive stressed the intent of A.B. 327 was not to let juvenile offenders “off the hook,” but simply to recognize the problem of sentencing juveniles to death.  Ms. Zive suggested the two juveniles currently on death row in Nevada should have their sentences reduced to life without the possibility of parole, and concluded her testimony by urging the committee to review the death penalty age policy.

 

Mr. Nolan questioned whether a 16-year-old who committed burglary, theft, and the murder of a 24-year-old woman and her 4-year-old son, who knew the difference between right and wrong, was really incapable of understanding the consequences of the death penalty.  Ms. Zive indicated that such a juvenile realized that the acts he was about to commit were definitely wrong, but he did not realize that killing someone would have the ramifications death had or that he would be sentenced to death himself for the acts.  She indicated a juvenile could not comprehend the consequences of such actions.

 

Mr. Nolan asked whether education on the consequences of committing crimes would have made the difference in whether or not the juvenile they were discussing would have committed the murders.  Ms. Zive could not answer the question because she would only be speculating, however, she pointed to the scientific evidence provided in her handouts which reflected that at the moment the crime was committed and the adrenaline was pumping, the juvenile did not understand that the victim was going to die and the juvenile was going to be sentenced to death or life in prison.

 

Ms. Giunchigliani stated the intent of the bill was to reconsider the issue of the age limit for the death penalty, not to excuse juvenile behavior.  She indicated she previously was a proponent of the death penalty, and over the last few years she had changed her mind because of genetic evidence and doubt issues.  Ms. Giunchigliani indicated she previously supported the death penalty because, like many others, her life had been touched in a way that caused her to want to punish offenders.  She did not think, however unfortunate, the death penalty caused a person to consider his actions and was not a deterrent in the heat of the moment.  Ms. Giunchigliani shared with the committee that her younger sister was held hostage in the woods on her eighteenth birthday by a man who took her into his motor home and repeatedly raped her and threatened to kill her for five days.  When the man was finally caught, Ms. Giunchigliani wanted him to receive the death penalty.  She now believed she was wrong because emotions should be separated from the decisions made in the court because decisions made in court should be designed to truly punish criminals.  As a schoolteacher, Ms. Giunchigliani always saw the developmental delay in juveniles; however, new scientific evidence actually showed that juvenile development with regard to reasoning and judgment was not lacking.  Accordingly, Ms. Giunchigliani asked the committee to consider the age of decision-making in light of new verifiable evidence and impose a sentence of life without parole rather than the death penalty on juveniles.

 

Ms. Giunchigliani provided several letters in support of A.B. 327 for the record (Exhibit D, Exhibit E, and Exhibit F).

 

Mark Blaskey, Chief Deputy Public Defender, Clark County Public Defender, told the committee by passing A.B. 327 Nevada would conform its law with those of the entire world and the majority of the United States.  He stated the general public was under the misconception that a 16- or 17-year-old offender could receive the death penalty in almost any country, including the United States, and were very surprised to learn that this was not true.  Mr. Blaskey stated that within the last 11 years only 6 countries and the United States had executed a 16- or 17-year-old offender, and the United States had executed more juvenile offenders than all of the other countries combined.  Four of the six countries had since passed legislation or signed treaties that abolished the juvenile death penalty, leaving the Democratic Republic of Congo, Iran and the United States as countries that currently executed juvenile offenders.  Mr. Blaskey told the committee the United States ratified the International Covenant on Civil and Political Rights along with 145 other countries.  Article 6(5) of the treaty indicated that a person who was under the age of 18 at the time their crime was committed shall not be executed.  The United States also signed, but had not yet ratified, the Convention on the Rights of the Child, which also prohibited the execution of 16- and 17-year-old offenders.  Mr. Blaskey advised that every country in the world, except the United States and Somalia, which no longer existed, ratified the Convention on the Rights of the Child.  Mr. Blaskey asserted that because a number of treaties prohibited the execution of juvenile offenders and because almost every other country in the world did not practice the execution of juveniles, an international law existed which was binding within the United States.  Mr. Blaskey commented there was a case pending in the world court in which Germany was suing the United States because of an execution that took place in the United States in violation of a treaty.  Mr. Blaskey felt Nevada could no longer ignore what went on beyond the boundaries of the state.  He stated the trend within the United States itself was to move away from executing 16- and 17-year-old offenders and currently a 16-year-old offender who committed a murder could be executed in only 18 states, including Nevada, which clearly put Nevada in the minority.  Mr. Blaskey stated 2 states raised the age limit for the death penalty from 16 in the last 2 years and currently 6 other states had legislation pending which would increase the minimum age eligibility from 16 to 18 years of age. 

 

Mr. Blaskey indicated juveniles were treated differently because they lack the maturity and wisdom of adults.  Mr. Blaskey pointed out that in Nevada a 16- or 17-year-old individual could not purchase, possess or drink alcohol, be drafted into the military, become a police officer, enter into a contract, gamble or purchase cigarettes.  He stated Nevada had these laws which treated 16- and 17-year-olds differently because we did not believe they were mature enough or educated enough to make decisions on their own, and yet Nevada executed 16-year-olds.  Mr. Blaskey noted 12-year-olds have committed murders and Nevada would not execute a 12-year-old because it was simply wrong. 

 

Mr. Blaskey addressed the cost factor associated with the death penalty.  He stated A.B. 327 would save some counties millions of dollars required for the prosecution and defense of a juvenile death penalty case.  Mr. Blaskey concluded by urging the committee to pass A.B. 327.

 

Mrs. Angle indicated she sat on a jury where the death penalty was sought for a man who had committed a triple murder. She stated the jury did not impose the death penalty because it determined the defendant did not know the nature and consequence of the crime.  Mrs. Angle indicated the jury sentenced the man to life without the possibility of parole on each count, however, the judge advised the jury that with such a sentence there was the possibility of parole in ten years.  Mrs. Angle asked whether current law allowed for the possibility of parole when a sentence of life without the possibility of parole was imposed.  Mr. Blaskey indicated the previous law allowed an offender sentenced to life with the possibility of parole to be eligible for parole in ten years provided a weapon was not used.  However, Mr. Blaskey indicated penalties had been increased and currently a defendant sentenced to life with the possibility of parole could be eligible for parole in 20 years provided a weapon was not used.  Mr. Blaskey also advised that the sentence of life without the possibility of parole now meant the offender would never be eligible for parole. 

 

Chairman Anderson reminded the committee it received a handout in the first week of the session, which showed the range of sentencing possibilities available depending upon the crime.

 

Ole J. Thienhaus, M.D., Professor and Chairman, Department of Psychiatry and Behavioral Sciences, University of Nevada School of Medicine, told the committee he consulted with the Washoe County Jail to perform mental health services.  He indicated he saw juveniles who were charged with capital crimes and he found them to be unlikable and without an excuse of mental illness to explain their actions.  Dr. Thienhaus believed these juveniles knew the difference between right and wrong and the penalties associated with their crimes, and were able to discuss defense strategies in lucid detail.  He stated it was difficult to develop a sense of pity for a 15- or 16-year-old “thug” who shot someone, but it was necessary for him to put aside the outrage he felt as an individual because as a person trained in neuroscience he had information on which he must rely.  Dr. Thienhaus provided the committee with a New York Times Article entitled A Brain Too Young for Good Judgment by Daniel R. Weinberger (Exhibit G).  He stated researchers at the National Institute of Health determined that functional development of the areas of the brain that determine in what way immediate impulses to react to an adverse situation were controlled developed over many years and was not fully completed until the end of the second decade of life.  Dr. Thienhaus acknowledged most research statements were based on large statistical samples and stated there were some individuals who would be able to manage their impulses at an earlier age while others would learn at a very late age.  Dr. Thienhaus felt it was necessary to realize that neuroscience research had determined over the last 20 years that teenagers, as a rule, were not in a position to manage impulses in a crisis situation on a level that would even come close to the level of an adult.  It was Dr. Thienhaus’ understanding that the law was designed and enforced based on the standard of a “reasonable person” and the prefrontal cortex of the juvenile brain was not developed enough to meet that standard.  Dr. Thienhaus believed the imposition of penalties should take into account the state of the juvenile brain, and it was his opinion that imposition a definitive punishment such as the death penalty on people under the age of 18 raised a highly questionable ethical problem.

 

Richard G. Weiher, Ph.D., Clinical Psychologist, Adult and Child Psychology, told the committee he had been practicing psychology in the state of Nevada for 25 years.  Dr. Weiher stated the period from ages 12 to 17 was a crucial phase in human development for 4 interrelated reasons.  First, the adolescent was experiencing dramatic changes in physical, intellectual, emotional and social capabilities.  Dr. Weiher believed there was no period in human development characterized by more rapid and pervasive transformations in individual competencies.  He stated hard evidence existed to show that neuroanatomy in the brains of adolescents lacked the density found in adults, which affected reasoning, comprehension, understanding and judgment.

 

Dr. Weiher continued by advising, from a development perspective, adolescence was a period of tremendous malleability, meaning experiences in family, peer groups, school and other settings have the potential to dramatically influence the course of development.  Dr. Weiher pointed out many adolescents convicted of serious or violent crimes rarely committed those crimes alone, but instead participated with codefendants, who were usually older.

 

Dr. Weiher told the committee adolescence was an important formative period and he claimed it was much easier to alter an individual’s life course in adolescence than during adulthood.  Dr. Weiher believed the crucial question was at what age an individual could be expected to have the judgment and perspective to differentiate between right and wrong, monitor and regulate their own behavior in potentially antisocial situations, foresee the likely consequences that their decisions have, and appreciate the effects of their actions on others.  Dr. Weiher stated developmental psychology had not been able to put an exact age on these functions but indicated that clinical practice used the age of 18.  He advised that development literature did not allow a diagnosis of a personality disorder to be made for a human being under the age of 18 because it was assumed that personality had not yet developed by the age of 18.  Dr. Weiher also noted that one cutoff point for interpreting the meaning of intellectual ability was between the ages of 17 and 18.  It was believed that the factors that went into the development of intellectual behavior in children through the age of 17 were different than those aged 18 and older.

 

Mr. Nolan asked whether it was possible to identify a biological and scientific way to establish the median development of juveniles so that individuals could be determined to be outside of the median and, in fact, were cognitive of the acts they committed.  Dr. Weiher felt Mr. Nolan’s question dealt with individual differences versus group data in setting a norm across a culture.  Dr. Weiher stated the results of research in neuroanatomy would set general standards for maturity of the central nervous system, but the research and results were not refined to develop any predictive ability to determine if a given 16- or 17-year-old was above or below a norm.  Dr. Weiher communicated his understanding the policy decision to be made by the committee would apply to all youth in the state of Nevada and would necessarily rely on making a generalization that would fit the entire adolescent population.

 

Mr. Nolan offered the example of a 16-year-old who told his classmates for several weeks that he was going to bring a gun to school and shoot people, and told people he did not care if he was given the electric chair; he was going to shoot people anyway.  Mr. Nolan asked whether the circumstances described established the juvenile premeditated acts of murder and understood the penalty for his actions and, accordingly, put the juvenile in a developmental category of an adult.  Dr. Weiher answered that the youth as described by Mr. Nolan did understand the difference between right and wrong and did, at least at a superficial cognitive or intellectual level, understand the severe consequences, including the death penalty, associated with his actions.  However, Dr. Weiher indicated that in order for the juvenile to appreciate the quality of that consequence and what it meant the day after, usually escaped the adolescent.  Dr. Weiher told the committee of a study which captured 36 years of adolescent criminal behavior in the state of California.  The study reflected that the homicide rate and the rate for juvenile violent crime were twice as high during the years the death penalty was in effect.  He stated adolescents have a penchant for risk-taking behavior and some theorist believed capital punishment increased the likelihood of an adolescent engaging in behavior with self-destructive potential.

 

Mr. Carpenter could not believe juveniles that committed acts like those at Columbine did not know what they were doing, and he felt the rationale presented was hard to accept.  Mr. Carpenter believed the crime rate was going down because the laws were tough on crime, and he indicated he was having a hard time believing juveniles did not have enough gray matter to make good decisions.

 

Robert Payant, Catholic Legislative Liaison, Nevada Catholic Conference, indicated he was speaking today as a former trial and appellate judge in the state of Michigan and Dean and President of the National Judicial College.  Mr. Payant stated he had considerable experience hearing cases involving young people, and understood the difficult task before the committee.  He reminded the committee of the current laws that impose limitations on young people because of their age and indicated the committee was called upon to decide whether 16 or 17 was the appropriate age to impose the death penalty.  Mr. Payant urged the committee to adopt A.B. 327.

 

Patrick Flanagan, Representative, Nevada Coalition Against the Death Penalty, began by disclosing to the committee that he was an attorney and a member of the State Bar Board of Governors and that he was not speaking on behalf of the Board or the State Bar of Nevada.  Mr. Flanagan indicated he was speaking on behalf of the Nevada Coalition Against the Death Penalty, which was a group of various faith-based organizations, and sought to focus the committee on the issue of raising the minimum age for the death penalty from 16 to 18. 

 

Mr. Flanagan stated the issue must be considered in a larger context.  He stated the courts determined whether the imposition of the death penalty to a certain class of people violated the United States Constitution and the Eighth Amendment.  Mr. Flanagan indicated he appeared before the United States Supreme Court in 1987 arguing the unconstitutionality of Nevada’s mandatory death penalty, which the Supreme Court ruled against.  Mr. Flanagan believed the Supreme Court’s decision was a step forward for the state of Nevada, noting capital punishment had been in a state of evolution.  Mr. Flanagan believed the passage of A.B. 327 was another step forward in that evolution.  Mr. Flanagan stated the question was not what had been accomplished through the use of the death penalty, but what our society had become when it executed children.  He observed that society treated children differently and this legislation simply recognized the fact that children were different.

 

Mr. Collins observed the religious background of the panel testifying and noted the belief of some people that the formation of our country was inspired by God.  Mr. Collins also observed the many instances in the Bible in which armies of youths were killed and questioned whether there was any difference between a law establishing the death penalty versus judges making decisions.  Mr. Payant deferred Mr. Collins’ question to the leaders of the church who would speak later, but responded that if our society could protect itself in a bloodless fashion, it should not use the death penalty.

 

Philip Kohn, Special Public Defender, Clark County Public Defender, discussed Sections 1 and 2 of A.B. 327, which dealt with the order of final argument in the penalty phase of a death penalty case.  Mr. Kohn indicated current law specified that the attorney for the state must open and conclude the argument.  He indicated this did not pose a problem at the trial stage as the state had the burden of proof.  However, Mr. Kohn stated in a penalty phase of a death penalty case the circumstances, rules of evidence and burden of proof were different.  Nevada Revised Statute (NRS) 175.554 set forth when a verdict of death may be imposed providing “the jury or panel of judges may impose death only if it finds at least one aggravating circumstance and further finds that there were no mitigating circumstances sufficient to outweigh the aggravating circumstances or circumstances found.”  Mr. Kohn indicated the net effect of the statute were two burdens of proof in a death penalty case; the first being that there was an aggravator and the second that mitigation outweighed aggravation.  Mr. Kohn advised that as a practical matter it was very rare that the state had not proved an aggravator in the trial phase, however, mitigating circumstances, which must be proved by the defense, were not set forth in the trial stage.  In order to avoid the death penalty, a defendant had to prove mitigation outweighed the aggravation and the legislation proposed would allow the defense to give a final rebuttal to the prosecution’s case.  Mr. Kohn stated current practice was that the state gave a short opening statement, the defense gave a single argument, and then the state gave a longer closing argument, which addressed issues not earlier raised by the defense or the prosecution.  Mr. Kohn indicated A.B. 327 would allow the state to open and the defense to make its case, allowing both parties to refer to any issue.  Thereafter, the state would give rebuttal to address only issues raised by the defense, and finally the defense would give sir rebuttal to address only issues raised by the prosecution in its rebuttal.  Mr. Kohn observed most major jurisdictions allowed the defense to argue last and many times the ability of the defense to argue last did not matter because the end result would be the same.  Mr. Kohn felt that allowing the prosecution to give the first word and the last word to the jury in a close case would make a difference.

 

Chairman Anderson noted the time and indicated it was necessary to conclude testimony in support of A.B. 327.  He asked those who still wished to speak in favor of the legislation not to repeat testimony previously provided to the committee.

 

Ben Blinn, private citizen, told the committee the death penalty could not be made retroactive and he felt it was better to err on the side of mercy.

 

Jane O’Sullivan Fransioli, Representative, Christ the King Catholic Community, indicated she had the opportunity to serve many broken and dysfunctional families and felt the problem was the tip of the iceberg in a country where the social structure had gone awry.  Ms. Fransioli believed the death penalty was an easy answer to a very complicated problem and presumed that the issue was black and white with no gray area.  She stated the death penalty was an illogical and dispassionate response to people who were acting-out based on their life experiences.  Ms. Fransioli felt that problems such as the lack of jobs, lack of housing, and lack of equal educational opportunities should be addressed.  She urged the committee to pass A.B. 327.

 

Charles T. Durante, Priest, Diocese of Reno, responded to Mr. Collins’ earlier question by telling the committee the scriptures specifically stated the death penalty should be imposed for a number of crimes, including mal-administration and violation of the Sabbath.  Father Durante felt it was crucial to stay within the context of the current developmental stage of our society.  He pointed out the ripple effect violence in schools had on students.  Father Durante felt when a statement was made to young people that violence was the answer, as the   death penalty did, a cycle of violence was perpetuated.  Father Durante noted most religious communities throughout the country were opposed to the death penalty and asked the committee to pass A.B. 327 (Exhibit H).

 

Chairman Anderson noted the committee would hear testimony in opposition to A.B. 327.

 

Richard Gammick, District Attorney, Washoe County, told the committee the death penalty was an individualized punishment for committing first-degree murder in the state of Nevada.  He stated that once a jury convicted a defendant for first-degree murder, in order to impose the death penalty the state had to prove beyond a reasonable doubt at least one statutory aggravator.  The defense was allowed to present any evidence in mitigation, which included the youth of the defendant.  Mr. Gammick emphatically declared the jury was never required to impose the death penalty, and advised the death penalty was an option that was reserved for the most heinous crimes and criminals.  Mr. Gammick stated the biggest obstacle for the prosecution to overcome in a death penalty case was the age of the offender.  He noted the decision to pursue the death penalty was not arbitrary.  Potential death penalty cases were examined very closely prior to the decision to seek the death penalty and, thereafter, the case was staffed with experienced people on both sides.  Mr. Gammick’s point was that a jury ultimately decided whether to impose the death penalty.  Mr. Gammick indicated the message the committee heard in support of the bill, essentially that if a person did not realize the consequences of his actions he should not be held responsible, was a dangerous message.  Mr. Gammick did not feel that age was relevant because he had seen 40-year-old men in a state of denial that would not accept the fact that they had been sentenced to death for their crimes.  Mr. Gammick was concerned about the blanket protection from the death penalty for all juveniles, when the death penalty was a very individualized punishment.  Mr. Gammick concluded by telling the committee he often asked juries to show the defendant the same amount of mercy that the defendant showed his victim.

 

Mr. Nolan asked how the number of juvenile first-degree murder convictions in which the death penalty was imposed compared to juvenile first-degree murder convictions in which the death penalty was not imposed.  Mr. Gammick did not have any figures to answer Mr. Nolan’s question, but indicated in Nevada, 88 people were currently on death row and only 2 of those people were juveniles.  He indicated in the last few years more 16- and 17-year-olds had become involved in violent murders than ever before.  Mr. Nolan asked whether it would be possible for Mr. Gammick to provide the committee with the specific information requested.  Chairman Anderson confirmed Mr. Nolan was seeking information on the number of people under the age of 18 who had been convicted of first-degree murder in cases where the death penalty was sought but not imposed.  Chairman Anderson indicated Mr. Sarnowski, who had not yet testified, would be able to answer Mr. Nolan’s question.

 

Mr. Carpenter asked whether Mr. Gammick agreed with the previous witness who indicated imposition of the death penalty was a violent act which perpetuated a cycle of violence.  Mr. Gammick indicated over the past 30 years he had seen crime scenes so violent they were beyond description and he had also attended executions.  He did not consider the executions violent by any stretch of the imagination, and stated the method in which individuals were executed by the state did not even begin to compare to the death scenes he had visited in the streets of our cities.  He noted it was not long ago that families sought their own revenge or retribution for crimes against them and had since given that right to the government.  Accordingly, Mr. Gammick did not agree with the proposition that the death penalty was a form of violence that begat violence. 

 

Chairman Anderson indicated his thinking that the death penalty was the rule of law and not a form of revenge.  He asked Mr. Gammick to explain the difference between a rule of law and the government’s responsibility to exact revenge.  Mr. Gammick believed that revenge or retribution was a part of the rule of law because, as human beings, we could not always separate the head from the heart.  He felt the argument over whether the death penalty was an effective deterrent would never be settled, but suggested deterrence was only one facet of the death penalty, as were revenge, retribution, punishment or rehabilitation.

 

Chairman Anderson indicated a member of his family was murdered and the perpetrator was sentenced to death in California.  However, the Supreme Court of California changed its position on the death penalty and the perpetrator was not executed but sentenced to life in prison.  Based on his experience, Chairman Anderson believed victims went from expecting revenge to accepting the reality that their loved one was never coming back.  He was not sure that revenge helped the healing process and instead felt revenge hindered the process.  Chairman Anderson felt there was a major difference between the rule of law and revenge, although he believed there should be retribution for wrongdoing.

 

Mr. Gammick indicated he dealt with victims that saw revenge as closure and others that shared Chairman Anderson’s point of view.  Mr. Gammick acknowledged the issue was very complicated.

 

David Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, State of Nevada, Attorney General, indicated his office opposed A.B. 327.  He stated over the history of Nevada’s modern death penalty prosecutors had been circumspect in asking judges or juries to impose the death penalty on offenders under the age of 18. 

 

In response to Mr. Nolan’s question, Mr. Sarnowski indicated his informal research reflected Nevada presently had two individuals on death row that were under the age of 18 at the time they committed their crime, and a third juvenile was sentenced to death but removed from death row pursuant to a decision by the Nevada Supreme Court.  Mr. Sarnowski could only recall one other case in which a sentencing body was asked to impose the death penalty on a juvenile.  In that case, four individuals murdered an undercover officer and the two adults involved received the death penalty while the two juveniles did not.  Having supervised related litigation, Mr. Sarnowski indicated the two juveniles involved were as remorseless today as they were over 20 years ago when they murdered the undercover officer. 

 

Mr. Sarnowski continued by stating his understanding of current law regarding pardons was that anyone given a death sentence could not later get a commutation which would allow them to be paroled to the street.  He indicated if A.B. 327 were enacted an offender could get a sentence of life without the possibility of parole and at some later point in time be considered for a pardon, a reduction and a release to society.  Mr. Sarnowski felt that possibility should be given consideration because there would always be those who believed, for various philosophical reasons, that offenders should be pardoned and released.  Mr. Sarnowski provided the committee with a copy of a document entitled The Juvenile Death Penalty Today:  Death Sentences and Executions for Juvenile Crimes January 1, 1973-December 31, 2000 (Exhibit I).  He indicated the document contained a summary of the law and a sizeable amount of statistics, including percentages of juveniles who had been on death row.  Mr. Sarnowski concluded by stating judges and juries were reticent to sentence young offenders to death and prosecutors rarely sought the ultimate punishment for young offenders.  He reminded the committee that if A.B. 327 were enacted, an offender less than 18 years of age could walk into a local high school with an automatic weapon and kill any number of people, and the harshest penalty that could be imposed on the offender would be life without the possibility of parole.

 

Chairman Anderson asked how the passage of A.B. 327 would change the nature of eligibility for parole when the bill only proposed to increase the minimum age of those who could receive the death penalty.  Mr. Sarnowski indicated the legislation would have no bearing on how a trial would proceed, but reiterated his understanding that a person who was given the death sentence could not be released on parole after a pardon, while a person sentenced to life without the possibility of parole could be released after a pardon.   A.B. 327 would prohibit the imposition of a death sentence and allow a juvenile offender to apply to the pardons board for release.  Chairman Anderson indicated if the committee proceeded with the bill, it would ensure that such a loophole was not available to offenders.

 

David Schwartz, Chief Deputy District Attorney, Clark County District Attorney’s Office, advised the committee he had worked for the District Attorney’s office for 25 years and during that time his work involved the prosecution of over 100 homicide cases, 30 to 40 of which involved the death penalty.  Mr. Schwartz indicated his office opposed A.B. 327.  He stated in the past 25 years he had prosecuted many 16- or 17-years-olds and had sought the death penalty only 4 times.  Of those four juveniles, the jury found two deserving of the death penalty, and the sentence of one of those juveniles was commuted by the Nevada Supreme Court to life without the possibility of parole.  Mr. Schwartz commented it was not easy to ask a jury to take the life of a juvenile, but under certain circumstances it was necessary.

 

Mr. Schwartz continued by discussing other states that had individuals under the age of 18 on death row.  Chairman Anderson advised Mr. Schwartz that the committee received that information in a handout provided by an earlier speaker.  Mr. Schwartz stated he was familiar with the case of Michael Domingues, a juvenile on death row in Nevada.  This 16 year-old killed a 4-year-old boy and his 24-year-old mother by laying in wait and strangling the mother when she arrived home.  Domingues then dragged the mother into the bathtub, filled the tub with water, ordered the boy to get into the tub, threw a hairdryer into the tub in a failed attempt to electrocute the boy, and then repeatedly stabbed the boy until he was dead.  Mr. Schwartz noted testimony previously given that juveniles who committed these types of crimes were caught up in the adrenaline rush and could not reflect on their actions until a later time.  Mr. Schwartz pointed out that Domingues went to his girlfriends’ house after the murders and bragged about his crime.  Mr. Schwartz noted Domingues’ adrenaline was not still pumping, but he still had the presence of mind to destroy evidence.  Mr. Schwartz stated Domingues was on death row because that was where he belonged.

 

Mr. Schwartz believed there were checks and balances to protect juveniles built into the imposition of the death penalty.  He stated in order for a jury to impose the death penalty on a 16- or 17-year-old in Nevada, it must make a determination that the aggravating circumstances outweighed mitigating circumstances, and even when the jury made such a determination, it was not required to sentence the juvenile to death.  However, when the jury did sentence a juvenile to death the Supreme Court could still commute the sentence to life without the possibility of parole if it believed the death penalty was inappropriate.  Additionally, Mr. Schwartz pointed out that the Governor could convene a board of pardons and commute a death sentence to life without the possibility of parole.  Mr. Schwartz advised that prosecutors did not seek the death penalty against a young individual unless it was believed to be warranted, and even when the death penalty was sought, a jury must still be unanimously convinced beyond a reasonable doubt of several elements.  Mr. Schwartz felt there were so many protections built into the current law that changing the law defeated the purpose.

 

Mr. Schwartz concluded by asking the committee to consider how the scales of justice would be balanced if a juvenile walked into his school, killed 13 people, and only received the maximum penalty of life without the possibility of parole because the juvenile death penalty had been abolished.  

 

Mr. Gustavson asked whether the witnesses were opposed to Section 2 of the bill.  Mr. Schwartz indicated he was opposed to Section 2 of the bill because the prosecution should argue last as it had the burden to prove aggravating circumstances and that the aggravating circumstances were not outweighed by mitigating circumstances. 

 

Chairman Anderson closed the hearing on A.B. 327 and opened the hearing on A.B. 353.

 

 Assembly Bill 353:  Prohibits sentence of death for person who is mentally retarded. (BDR 14-801)

 

Chairman Anderson noted he was a primary sponsor of A.B. 353 together with Assemblywoman Sheila Leslie and wished to join in Ms. Leslie’s remarks.

 

Assemblywoman Sheila Leslie representing Assembly District 27, presented A.B. 353 to the committee and provided several letters in support of the legislation (Exhibit J).  She stated A.B. 353 would require the committee to examine nothing less than the moral and ethical foundation of Nevada’s criminal justice system.  Ms. Leslie told the committee it would decide whether capital crimes committed by the mentally retarded were worthy of state-sanctioned death or whether the alternative penalty of life without the possibility of parole would better serve justice.  Ms. Leslie was convinced that executing mentally retarded people did not meet the goals of the death penalty, which were retribution, deterrence and assurance of public safety.  Ms. Leslie stated expert witnesses would testify that mental retardation could not be faked or cured, and that the mentally retarded could not understand what it meant to have a right, much less what it meant to waive a right.  Ms. Leslie provided the committee with the example of a retarded man on death row in Louisiana who waived all of his rights during interrogation.  When later asked by an attorney if he understood what waiving his rights meant, the man raised his right hand and waved.  Other expert witnesses would testify as to the difficulties in representing mentally retarded people, public opinion surveys and moral aspects.

 

Ms. Leslie made reference to a relevant case that was litigated only yesterday in the United States Supreme Court.  When this case was first reviewed in 1989 the Supreme Court noted that only two states had legislation excluding persons with mental retardation from the death penalty and cited insufficient proof of a national consensus as the reason it would not create a constitutional prohibition on such executions.  However, the Supreme Court announced this week that it would hear the appeal of an inmate on death row in North Carolina who had an intelligence quotient (IQ) of 67 to determine whether the growing national consensus against execution of mentally retarded defendants had reached the point where the court should deem such executions unconstitutional.  Ms. Leslie noted that case would be argued this fall and attorneys for the defendant were suggesting it was time for the Supreme Court to assess whether American society had changed significantly over the last decade so that the execution of the mentally retarded now violated American standards of decency. 

 

Ms. Leslie advised 12 states had outlawed capital punishment altogether, but of the 38 states that still allowed capital punishment, 13 states, together with the federal penal system, did not allow execution of mentally retarded defendants.  Seven states, including Nevada, were presently debating the issue.  Ms. Leslie noted the United States was one of only three countries that executed people with mental retardation.

 

Ms. Leslie anticipated some witness would testify that A.B. 353 made the rights of the criminal more important than the rights of the victim and the mitigation aspect of sentencing already addressed the problem by allowing the jury to decide.  Ms. Leslie’s response to those arguments was to request the committee keep in mind that the death penalty was supposed to be reserved for the most blameworthy of criminals convicted of the most heinous crimes.  Ms. Leslie felt the committee members should ask themselves whether mentally retarded people, no matter how heinous their crime, fit their definition of the most blameworthy of perpetrators.  Ms. Leslie felt the legislature should make this policy decision guided by the values it believed were representative of the people each legislator represented, and not defer to a jury to decide the fate of the mentally retarded criminal.  Ms. Leslie believed mentally retarded persons should be held accountable for their actions and felt a majority of Nevadans did not believe revenge was necessary in the form of execution to protect society from mentally retarded criminals.

 

Ms. Leslie concluded by reading two quotes from an article in the Reno Gazette Journal, which she felt represented the two positions on A.B. 353: 

 

Why should we as a society pay for that person for the rest of their life to keep them alive?  What happened to the idea of retribution and revenge?  It used to be in this country that when you killed someone the family took care of it.  We have evolved to where we frown on the family doing that and the responsibility has been turned over to the people as a whole. 

 

 - Dick Gammick, Washoe County District Attorney

 

I don’t approve of murder and I don’t approve of state-sanctioned murder.  How can we possibly think that justice is in any way served by murdering someone who is mentally retarded and very likely didn’t understand or have control over what they were doing?  They need help.  They don’t need to be murdered.  It’s particularly brutal and uncivilized.

           

                                                     - Rabbi Myra Soyfer, Temple Sinai Reform

 

Mr. Carpenter indicated he would agree mentally ill people should not be executed but he wondered whether Nevada should look to the Supreme Court’s anticipated decision on the matter for some guidance.  Mr. Carpenter asked whether countries that were currently killing people everyday, such as those in the Middle East, Macedonia and the Balkans, had ratified international treaties abolishing the death penalty.  Ms. Leslie indicated she would let the experts on international law address Mr. Carpenter’s question.  As to Mr. Carpenter’s initial comments, she responded it was important for Nevada to be part of the national consensus and she did not want to wait for the Supreme Court to make its ruling although she felt the Supreme Court would find execution of mentally retarded persons unconstitutional.

 

Mr. Carpenter noted the bill spoke to an IQ of 70 and inquired how that figure was determined.  Ms. Leslie responded an expert witness would provide a detailed explanation of why the number 70 was used, however, she explained that she settled on an IQ of 70 because that was the standard the state used to determine eligibility for services to the mentally retarded.

 

Ms. Buckley wondered whether the issue the Supreme Court was scheduled to consider was a separate issue from the policy decision to be made by the committee.  She noted the Supreme Court’s job was to decide constitutionality and the committee’s job was to set policy according to what was right and fair.  Ms. Leslie agreed with Ms. Buckley’s observations and felt the issue was an appropriate policy matter for the state.

 

David Ward, private citizen, read from prepared testimony as an individual, however, Mr. Ward indicated he was a Commissioner for Mental Health and Developmental Services and the First Vice President of the Washoe Association for Retarded Citizens, in addition to being the father of Ryan Ward, his 18-year-old severely retarded son (Exhibit K).  Mr. Ward described Ryan as a “pleaser” who would do anything, including confess, if he thought it would please someone.  Mr. Ward stated he appeared before the committee to argue exclusively against the use of capital punishment in cases of mental retardation and was not suggesting mental retardation was in any way an excuse to commit crime.  He believed people who were mentally retarded could not fully comprehend the impact of their actions and accordingly were less culpable than a person who was not mentally retarded.  Mr. Ward noted people with IQs of 70 or less were not capable of assisting in their own defense and were far more likely to be wrongly convicted or receive more severe punishments.  Mr. Ward felt the mentally retarded needed to be protected from punishment too severe to be called justice.  In conclusion Mr. Ward urged the committee to support A.B. 353.

 

Dr. Richard Siegel, Professor of Political Science, University of Nevada, Reno, and State President of the American Civil Liberties Union of Nevada, stated he researched the death penalty in the United States and globally and had received an upcoming sabbatical grant to conduct more research on the death penalty.  When Dr. Siegel combed his notes regarding public opinion on the death penalty for the mentally retarded he suspected he would find narrow margins on the issue, but instead he found four polls all of which opposed the execution of the mentally retarded by margins that ranged from 64 percent to 72 percent. He provided detailed information on the polls indicating two of the polls were from the late 1980s, two of the polls were from the summer of 2000, and no other polls could be found on point (Exhibit L).  He provided the committee with a copy of the Arizona poll, which was conducted by the Behavior Research Center (Exhibit M).  Dr. Siegel noted that from a public opinion point of view, A.B. 353  was a safe vote and he presented the committee with a packet of letters representing over 20 organizations in Nevada that supported this legislation (Exhibit N). 

 

Dr. Siegel continued by responding to Mr. Carpenter’s earlier question and indicated that about 75 percent of countries had ratified the international covenants that involved this issue.  Dr. Siegel felt it was interesting to note that some of the countries that executed the most people do not execute the mentally retarded.  He noted he had been to China to study the death penalty.  He stated China performed more executions than any other country, in the range of 3,000 to 4,000 a year, but, as a matter of policy, they did not execute the mentally retarded or people under the age of 18.  Dr. Siegel advised that exemption of the mentally retarded from the death penalty was a world standard.  Dr. Siegel told the committee that when the United Nations commissions were writing the International Covenant on Civil and Political Rights they did not exempt the mentally retarded from the death penalty because it was widely believed that exemption of the mentally retarded was not necessary because it was obvious.  He stated in 1989 the United Nations called on all countries to eliminate the death penalty for persons suffering from mental retardation or extremely limited mental competence.

 

Mr. Carpenter asked where nations that killed every day, specifically the Palestinians and Macedonia, stood on this issue.  Dr. Siegel responded that all but five European countries had given up the death penalty entirely, which was a condition of being a member of the Council of Europe.  He stated some countries killed a lot of people, but they did not assume the right to officially execute anybody.  Dr. Siegel noted there were many countries in the Middle East that had not accepted any of the international agreements, but the majority of the countries in the world had given up the death penalty in law or practice.

 

Brian Lahren, Ph.D., Executive Director, Washoe Association for Retarded Citizens, read from prepared testimony and voiced full support for A.B. 353 on behalf of the entire disability community in Nevada (Exhibit O).  Dr. Lahren indicated his Ph.D. was in Applied Behavior Analysis which was a specialization focusing on teaching persons with mental retardation, and throughout his career he had seen nothing to support the execution of mentally retarded persons.  Dr. Lahren stated people with mental retardation typically could not understand the complexities of life that surrounded them and dealt with what was immediately present.  Mentally retarded persons often formed the simple understanding that their main social task was to please those around them, and they tried to please parents, teachers, friends, defense attorneys, prosecuting attorneys and jailers with equal enthusiasm.  Dr. Lahren noted it was not uncommon for a mentally retarded person to “confess” to a crime in order to please law enforcement officials.

 

Dr. Lahren advised a significant aspect of mental retardation was that not even people with mental retardation wanted to be seen as having it and accordingly they would do everything possible to hide their condition.  He stated virtually every person with mental retardation exerted maximum effort to appear normal, which could be misleading to casual observers, particularly in a criminal justice setting.  However, Dr. Lahren noted it was not difficult for professionals to determine mental retardation because it was not possible for a person to fake a higher IQ.  He believed the reliability of a determination of mental retardation was vouched for by the fact that the federal government used such a determination to establish eligibility for categorical forms disability.  Even in Nevada, which Dr. Lahren stated had the worst record for human services, mental retardation was seen as a disability so limiting that those who had it were worthy of public financial and social support.  Dr. Lahren felt by reason of this profound mental disability, it made sense that the mentally retarded did not deserve society’s ultimate punishment.

 

Dr. Lahren concluded by urging the committee’s support of A.B. 353 and noted passage of the legislation would do nothing but avert what was currently an omnipresent potential for injustice.

 

W. Larry Williams, Ph.D., Associate Professor, Department of Psychology, University of Nevada Reno, read from prepared testimony and indicated he currently taught in an area of psychology referred to as behavior analysis and its specific application in the area of mental retardation and developmental disabilities (Exhibit P).  Dr. Williams emphasized three central issues for the committee to consider relative to A.B. 353:

 

 

 

 

Mr. Carpenter asked what percentage of the population had an IQ of 70 or below.  Dr. Williams responded approximately 2.5 percent of the population had an IQ of 70 or below.  He explained that in any given population the average score of an intelligence test would be assigned the number 100, and about 68 percent of the population would be distributed on either side of 100 in a standard deviation that would range up to 115 and down to 85.  Another standard deviation, which would encompass 95 percent of the population, would range up to 130 and down to 70.  What was left would be 2.5 percent on either side.  The 2.5 percent on the top would be considered gifted, while the 2.5 percent on the bottom would be considered mentally retarded.

 

Mr. Nolan felt both A.B. 327 and A.B. 353 centered around the issue of an individual’s ability to understand their actions, right from wrong and the consequences of their actions.  He asked whether it was possible for an individual to have an IQ below 70 and still have the ability to understand the difference between right and wrong, morality, ethical issues, and the ability to understand a violent act of murder and its consequences.  Dr. Williams indicated Mr. Nolan asked a very difficult question and stated the committee must understand that the number 70 did not represent any one person, but was instead a statistic and contained a margin of error.   Dr. Williams stated the very nature of intelligence and retardation had to do with the complexity of the kinds of things that a person could differentiate through auditory and visual information.  Dr. Williams indicated, in his experience, people with mental retardation would be hard pressed to appreciate very complex abstract concepts such as morality, consequences and responsibility.

 

Mr. Nolan noted there was an increasing population of immigrants coming to our country whose social backgrounds and histories were unknown.  He asked whether a determination could be made, without any background information, as to whether such an immigrant was retarded if the immigrant tried to mask his condition.  Dr. Williams indicated it was possible to make such a determination.

 

Michael Pescetta, attorney, told the committee he practiced exclusively in the area of death penalty cases.  He advised he was an Assistant Federal Public Defender but stated for the record he was not representing the office of the Federal Public Defender.  Mr. Pescetta asked the committee on behalf of himself and his clients to pass A.B. 353.  He stated the bill simply reserved the ultimate sanction for the worst offenders and left the option of life in prison without the possibility of parole for serious crimes committed by the mentally retarded.  Mr. Pescetta felt it was inappropriate to impose the ultimate penalty on the bottom two percent of the population in terms of ability to function intellectually, control behavior and understand long-term consequences of behavior.  He stated the understanding that a mentally retarded person had as to the consequences of his actions was rudimentary, and as an attorney who had represented mentally retarded clients, Mr. Pescetta attested that those clients understood it was wrong to shoot somebody in the same way a 6- or 9-year-old understood.  Mr. Pescetta stated a mentally retarded person’s ability to make a decision about whether to pull the trigger or leave before something bad happened in the course of an offense, was qualitatively different from the ability of a person who was not retarded.  He stated the mentally retarded were followers and not leaders, who planned or set the agenda for any offense.  Mr. Pescetta stated in his experience and knowledge, retarded individuals who had been sentenced to death always committed crimes in association with nonretarded individuals.  He observed the problem was that once a retarded individual was set on a path with other people, his ability to turn back and not participate was qualitatively different.

 

Mr. Pescetta stated mental retardation was a global disability that affected all interactions with the criminal justice system and merely considering retardation as a mitigating factor under NRS. 200.0357 did not adequately address the problem.  He noted examples of mentally retarded people who falsely confessed because they wanted to please law enforcement officials.  Mr. Pescetta claimed a retarded person would agree with any statement that he was pressured sufficiently to make.  Mr. Pescetta noted masking was an important issue to be considered and told the committee one of his clients was in the criminal justice system for 14 years before anyone noticed he was retarded.  Mr. Pescetta concluded by addressing the cost associated with trying a capital case and noted if A.B. 353 were passed, those costs would be eliminated at the outset.

 

Robert Stoeckig, Chancellor, Dioceses of Las Vegas, told the committee that in 1999 the Pope appealed to the United States to abolish the death penalty because it was cruel and unnecessary.  Father Stoeckig believed bloodless means were available to protect citizens and the test of public policy was whether it enhanced or threatened human life and dignity. He believed the approach toward punishment should be rooted in respect for the sanctity of human life, the dignity of all persons and the preservation and enhancement of the common good.  Father Stoeckig submitted to the committee that a policy of capital punishment for those with reduced mental capacity, and therefore reduced moral culpability, did not serve the common good.  He stated it was not in the best interest of society to continue perpetuating a cycle of violence by promoting state-sanctioned killing.  Father Stoeckig concluded by strongly urging passage of A.B. 353.

 

Will Ewing, Team Chief, Homicide Unit, Clark County Public Defender’s Office, indicated he supported A.B. 353 and noted he had first-hand knowledge of the difficulties and the unfairness in the system with regard to defending mentally retarded persons.  Mr. Ewing stated it was important for the mentally retarded to have a fair trial and current law mandated that defense counsel be able to communicate with the client, help the client understand such abstract terms as reasonable doubt, burden of proof and the nuances of various defenses and the appropriateness of various plea bargains.  Mr. Ewing stated, at times, the above was impossible and it was frustrating to not know whether you had communicated such abstract terms to the client.

 

Mr. Ewing noted he was also a bishop in the Church of Jesus Christ of Latter Day Saints and while he could not speak on behalf of the church or its members, his religious convictions and his faith motivated him to support the bill.  He stated he supported the bill not only as a public defender, but also as a bishop in the church, father, husband, Boy Scout leader and former little league coach.

 

Larry Struve, Advocate, Religious Alliance of Nevada (RAIN), provided the committee with a letter indicating RAIN supported A.B. 353 (Exhibit Q).

 

Phil Hansknecht, Ordained Minister, Evangelical Lutheran Church in America, and President, Lutheran Advocacy Ministry in Nevada, concurred with previous testimony in support of A.B. 353 and observed that the mentally retarded required support from society.  He felt that when a violent crime was committed by the mentally retarded it indicated there was a failure by society and social structures to care for the mentally retarded.  Reverend Hansknecht believed that executing a mentally retarded person abrogated society’s responsibility to continue to care for that person and he argued that such a person needed ongoing care in order to assume personal responsibility.  Reverend Hansknecht commented that society was not called on to act as God and did not have the right to determine who should be killed for retribution or who was beyond the pale of God’s grace and forgiveness.   He argued that executing a person denied the opportunity for that person to repent or change spiritually.

 

Chairman Anderson indicated his desire to conclude testimony in favor of A.B. 353.  The following items were submitted for the record in favor of A.B. 353 without oral testimony:

 

 

 

 

 

 

 

Chairman Anderson called witnesses who wished to testify in opposition to A.B. 353.

 

Richard Gammick, District Attorney, Washoe County, stated the Nevada District Attorney’s Association recently met and those in attendance voted unanimously to oppose A.B. 327 and A.B. 353.  He stated all of the issues testified to in favor of A.B. 353 were already covered under the law.  He commented that nobody wanted to see a person who was mentally retarded and truly incapable of making decisions executed, and he noted there were many preventative measures built into the system.  Mr. Gammick stated, pursuant to existing law, when an attorney felt his client did not understand the charges and could not assist in the preparation of a defense, the attorney should file a motion to determine competency with the court and the court could order an examination of the defendant, conduct a hearing and make a determination of competency.  A person who was found to be incompetent could not be tried, sentenced or executed.  Mr. Gammick pointed out Nevada consistently refused to adopt the diminished capacity defense and spent a lot time arguing over the mental capacity of defendants.  He noted a recent Nevada case in which the mental capacity of the defendant was argued for months.  Mr. Gammick responded to the idea that juries should not be deciding this issue by stating the jury system was the basis for democracy in this country.  He stated the jury had the opportunity to hear the testimony of experts from both sides, together with testimony from people who knew the defendant and the defendant’s capabilities, and the jury decided whether the defendant should be held responsible for the crime committed.  Mr. Gammick felt the IQ system was questionable when diversity and minorities were taken into consideration, and he believed that a person with an IQ of 70 or below was indeed capable of making the kinds of decisions in question.  He stated testimony offered in court reflected that a person with an IQ of 70 or below made the decision to torture a pregnant mother, assist in her murder, flee the scene of the crime and cover up the crime.  Mr. Gammick stated this bill would not even allow such a case to come before a jury to make an individual decision based on an individual crime.  Mr. Gammick observed the current system took all of these issues into account and urged the committee not to pass more laws but instead allow the system to work, noting Nevada had one of the best systems in the United States when it came death penalty litigation.

 

Mr. Carpenter asked Mr. Gammick to describe the process involved when a person charged with murder claimed to be mentally retarded.  Mr. Gammick advised that the process typically began with a claim by the defense that the defendant was not competent or was severely mentally ill.   He indicated a competency claim could be raised at any time up to and including the penalty phase, and could be based on the defense attorney’s personal observations or information provided by family and friends.  Once a competency issue was raised, the court could bring in psychiatrists or psychologists to examine the defendant, obtain prior history of examinations, and obtain any evidence that would prove that the defendant was in fact competent prior to making a determination.  When a defendant was found incompetent, he was deferred to the Nevada Mental Health Institute where he was treated and later appeared before a competency panel.  If that panel determined the person was incompetent and would never be competent, the charges were dismissed and the defendant was deferred to the mental health system.  Mr. Gammick noted a defendant subject to the death penalty also had to be found to have had specific intent to commit murder and the defense could raise the issue that the defendant was not intelligent enough to form that specific intent.  Mr. Gammick reiterated there was currently a very comprehensive program in effect for these types of cases.

 

Mr. Carpenter asked what happened to a defendant that was found mentally incompetent and could not stand trial.  He asked whether there was a chance such a defendant could go free at a later time.  Mr. Gammick responded that such a situation recently occurred in Washoe County.  He stated a female individual intentionally ran over and killed a pedestrian, was found to be incompetent and was sent to the Mental Health Institute.  The involved judge released the offender after several hearings, although the Mental Health Institute reported she was not competent, never would be competent, was a danger, and had threatened several nurses claiming she would run over them too as soon as she got her drivers license back.  When the offender was released from the mental health program, she was arrested again for the murder.

 

Mr. Nolan believed the bill provided the opportunity for a court to conclude, based upon the evidence presented at a hearing, that the defendant was mentally retarded and that the defendant may not receive a sentence of death.  Mr. Nolan felt, even with the IQ factor built in, a court could still ultimately make a determination that an individual was not mentally retarded and could receive a sentence of death.  Mr. Nolan asked whether Mr. Gammick agreed with the interpretation.  Mr. Gammick indicated the process was duplicative of current law because presently when there was an issue as to the mental state of a defendant, a hearing was held and the court determined the competency of the defendant.  Mr. Gammick noted that even when the court ruled a defendant was competent, a jury still had to hear all the evidence and make its decision before imposing a death sentence.

 

David Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, State of Nevada, Attorney General, advised he opposed the bill for technical reasons.  However, in response to Mr. Nolan’s question, Mr. Sarnowski stated the bill would allow one trial judge to make a unilateral decision, supplanting a decision by a prosecutor, that the case was a proper case to go forward as a capital case.  Mr. Sarnowski believed the language in the bill that allowed the judge to make such a decision came from a manual relied on by health care professionals to issue a diagnosis.  He observed the judge was also allowed to impose upon the state, merely upon the presentation of an IQ report, the burden of proof to overcome a rebuttable presumption.  Mr. Sarnowski pointed out an earlier witness testified the assessment of mental retardation must be determined with the use of more than one test or figure, however, Mr. Sarnowski felt the bill did exactly that.  He noted doctors could be hired by the defense to testify that a defendant had an IQ of 70 based only on one test without providing the state access to the defendant for testing by its experts or a neutral party.  Mr. Sarnowski provided the committee with information on Arizona Senate Bill 1551 regarding the issue (Exhibit X).  Mr. Sarnowski believed the Arizona legislation gave the state a fairer opportunity because the trial court was required to appoint certain health care professionals to render opinions.

 

Mr. Sarnowski observed the bill did not allow the ability for the state to challenge the trial judge’s ruling.  He noted it might be possible for prosecutors to seek extraordinary writ relief by asking the Supreme Court to review the decision, but he felt there should be a mechanism built in to the bill to allow the state to challenge the trial court’s ruling before the trial, to avoid making the process very one-sided.

 

Chairman Anderson sought confirmation of his understanding that ultimately the committee was faced with making a policy decision as to whether an IQ of 70 determined the standard for mental retardation and placed an obligation on the trial court to hold a hearing to determine whether a defendant fell within that standard.  Chairman Anderson noted if the court determined a defendant was mentally retarded, the prosecution was barred from pursuing the death penalty.  Mr. Sarnowski felt the description by Chairman Anderson was just one way a defendant could bring the issue because an IQ of 70 or below would establish a rebuttable presumption, requiring the state to conduct the rebuttal.  However, Mr. Sarnowski understood there was no requirement that a professional provide any particular IQ number and could instead offer an IQ range that might range above 70.

 

Ms. Ohrenschall asked if there was more than one type of test administered to measure IQ and, if so, could the type of test affect the numerical IQ determination.  Mr. Sarnowski believed there was more than one type of test and felt Mr. Schulze could better address the question.

 

Victor-Hugo Schulze, Deputy Attorney General, State of Nevada, Attorney General, indicated he opposed A.B. 353 and noted he was not advocating for a specific result but was advocating for a process.  Mr. Schulze acknowledged he was not a psychologist, and advised he was an attorney for the state and had dealt with many issues involving competency, mental intent and intellectual ability.  Mr. Schulze expressed concern over the unwarranted acceptance by society, courts and policymakers in the value of IQ testing which was the central component of A.B. 353.  Mr. Schulze read from prepared testimony which included information on the weakness of psychometric testing, specific problems with IQ measurement, the lack of a consistent definition of mental retardation and the misconceptions of mental retardation (Exhibit Y).  Mr. Schulze concluded by stating an IQ level of 70 to establish mental retardation appeared to be an arbitrary number and its inclusion in the bill would place burdens on the state that in many cases the state would not be able to meet.

 

Gemma Waldron, Deputy District Attorney, Washoe County District Attorney and Legislative Representative, Nevada District Attorneys Association, indicated she was speaking in a personal capacity as evidence of Mr. Schulze’s remarks regarding IQ testing of minority individuals.  Ms. Waldron told the committee she had an IQ of 140 and always excelled in school.  However, in high school a counselor suggested Ms. Waldron participate in special education programs and vocational preparatory classes as opposed to college preparatory courses.  Ms. Waldron was a member of the two percent minority in her high school in Los Angeles and reported the counselor’s suggestion to her mother who went to the school and demanded Ms. Waldron not be put into special education.  Ms. Waldron told the committee if she was of a mind to, she could commit a murder and would know the exact consequences of her actions, however, if her mother had not been vigilant in insisting Ms. Waldron not be put into special education programs she might have the brand of being a “special education kid” because a high school counselor believed she was mentally inadequate.  She urged the committee to keep her story in mind when looking at IQ testing as the basis of a defense to avoid the death penalty when in every other respect the crime committed fit the aggravating circumstances delineated by statute.

 

Chairman Anderson noted that as an educator he was aware of the issues of child placement and appreciated the disagreements regarding use of different testing modes.

 

Mr. Gammick took the opportunity to make a concluding statement by noting that if A.B. 353 was passed every person the death penalty was sought against would claim to be mentally retarded and every case on the issue would have to be litigated.

 

Mr. Sarnowski noted the bill provided a defendant must “manifest” the condition before the age of 18.  Mr. Sarnowski felt it was important to understand the bill did not state the condition had to be documented before the age of 18 and he expected recently generated reports would be presented as evidence for 45-year-old defendants claiming the defendant was mentally retarded and accordingly must have manifested the condition before the age of 18.  Mr. Sarnowski felt this would be another issue that would have to be litigated in each case unless there was some protection built into the bill.

 

Chairman Anderson closed the hearing on A.B. 353 and opened the hearing on A.B. 354.

 

 Assembly Bill 354:  Provides for genetic marker analysis of certain evidence related to conviction of certain offenders sentenced to death. (BDR 14-595)

 

Assemblyman Bob Price, representing Assembly District 17, sponsor of the bill, presented A.B. 354 which he claimed was very simple.  Mr. Price told the committee he noticed a large number of people on death row had been exonerated because deoxyribonucleic acid (DNA) testing on preserved evidence conclusively proved the death row inmate was not the person that committed the crime and he provided numerous newspaper articles on the topic (Exhibit Z).  Mr. Price felt that people who were put on death row prior to the common use of DNA testing should be allowed to conduct DNA testing prior to their execution, provided evidence was still available to test.  Mr. Price provided the committee with a research memorandum on DNA testing and the death penalty (Exhibit AA). 

 

Chairman Anderson confirmed the bill provided that in the event a person was going to be executed by the state, that person had the right to conduct DNA testing on evidence if DNA testing had not already been performed.  Mr. Price noted not every case had preserved evidence and therefore the bill would not apply to all cases. 

 

Chairman Anderson observed the bill allowed for a stay of execution pending the DNA results by the filing of a post-conviction petition request, provided that DNA testing had not been used as part of the prosecution.  Mr. Price noted the majority of cases to which the bill would apply would have been conducted prior to the availability of DNA testing.

 

Chairman Anderson further noted the bill provided if the DNA test proved the defendant did not commit the crime, the court shall notify the State Board of Pardons Commission for an appropriate change in the sentence.

 

John Morrow, Chief Deputy, Washoe County Public Defender, felt A.B. 354 was an excellent piece of legislation because it dealt with the issue of the potential for actual innocence.  Mr. Morrow pointed out the bill did not apply only to people who were under a sentence of death, but the bill also applied to any case in which something less than genetic marker evidence was presented at trial or prior to a plea.  He believed there could be people in the system whose innocence could be proven by the use of the genetic marker. 

 

Mr. Morrow suggested the words “of death” following the word “sentence” in Section 2 be stricken in order to give the bill a broader applicability.  He felt the bill could be very cost effective because at $18,000 a year to house an inmate, it would not take a large number of exonerations to cover the cost of testing.  Mr. Morrow noted the bill would apply primarily to older cases and more serious cases because DNA testing was now commonly used by prosecutors to prove cases.  Mr. Morrow told the committee in the past he had seen a man convicted of murder based on the visual analysis of a piece of hair and DNA testing would serve the best interest of justice and maintain the integrity of the system in such cases. 

 

Chairman Anderson confirmed Mr. Morrow’s suggested change was at Section 2 at lines 3 and 4.

 

Elmer R. Rusco, Representative, Nevada Coalition Against the Death Penalty, told the committee about a book called Actual Innocence which recounts 80 cases from around the country where genetic evidence, which could not be tested at the time because the technology was not available, was tested using DNA testing and people who were convicted and had been through the appellate process were proven innocent.  Mr. Rusco felt, although expensive, if the death penalty appellate process was perfect the cost would be worth it, however, DNA testing had shown that it was possible for a person to go through the appellate process and be sentenced to death, even when that person was innocent.  Mr. Rusco noted if those people were executed, there was no way they could ever be exonerated.  He told the committee there was no argument over the effectiveness of DNA testing but he felt the appellate process was not as effective as it seemed to be.

 

Charles T. Durante, Priest, Diocese of Reno, noted the death penalty presumed there could not be error and Father Durante felt the bill would allow one more precaution before executing the innocent.

 

Chairman Anderson called witnesses who wished to testify in opposition to A.B. 354.

 

David Sarnowski, Chief Deputy Attorney General, Criminal Justice Division, State of Nevada, Attorney General, commented on what he felt were absolutely necessary technical and financial corrections to the bill, although he indicated he was not opposed to genetic marker testing.  Mr. Sarnowski noted the comment there was no effect on local government and he felt that was inaccurate.  He felt the amount to be appropriated would not begin to cover the cost of testing and he believed testing would cost anywhere from $300 to $1,500 per test.  Mr. Sarnowski noted that if the committee accepted Mr. Morrow’s proposition to widen the reach of the bill to noncapital cases, there would be other points in the bill that would need to be corrected.  He felt the filing of the petition as proposed by the bill would act as a waiver by the person filing the petition and could lead to new prosecutions. 

 

Mr. Sarnowski believed the words “been prosecuted” on page 2, lines 15 and 16, should be stricken.  He felt the bill suggested the judge was in a position to make the decision as to whether a defendant would have been prosecuted without the DNA evidence.  Mr. Sarnowski believed the judge might not know all of the evidence the state had against the defendant and was not in a position to make such a decision.  He believed the word “convicted” was sufficient to address the problem.  Mr. Sarnowski also suggested changes to the requirement contained in the bill that the Department of Prisons be involved in the testing process.  He stated in most circumstances the Department of Prisons did not get involved in post-conviction litigation, which was paid for by funds administered through the office of the State Public Defender.  He felt it was not appropriate to involve any agency unnecessarily and testing should be handled in the same way habeas petitions were currently handled.

 

Mr. Sarnowski indicated current law provided a one-year limit for prisoners to bring their post-conviction petitions and A.B. 354 would obviate that one-year limit for all capital-sentenced prisoners.  Mr. Sarnowski felt it was likely that prisoners would use this legislation to prolong litigation if they were not required to file a petition sooner rather than later.  However, if the bill was enacted, Mr. Sarnowski believed that prisoners should be put on notice that they were eligible to file a petition, which must be done within a certain period of time.  Additionally, Mr. Sarnowski suspected that most prisoners would contend they needed a lawyer to be appointed at the state’s expense to adequately present their case to the court.  He felt consideration should be given to the issue of appointed counsel to assist with the petition and how appointed counsel would be paid.

 

Chairman Anderson noted genetic marker testing had become a big issue over the last three to four years and questioned why the state would not conduct DNA testing at trial if there was genetic material available.  Additionally, Chairman Anderson wondered why a defendant would give evidence against himself and file a post-conviction petition if he was guilty.  Mr. Sarnowski indicated there was no reason the state would not conduct DNA testing at trial, and indicated DNA testing was being conducted in most cases in which genetic marker evidence was relevant.  Mr. Sarnowski indicated A.B. 354 would apply to all cases dating back to the enactment of the death penalty in 1977 and would allow a post-conviction petition to be filed in those cases.  He noted that the filing of such a petition should act as a waiver of the inviolable right to remain silent and he wanted it understood that DNA evidence may be used against any person filing the petition.

 

Chairman Anderson noted DNA testing was becoming so commonly used in prosecution that the vast majority of new cases would already have conducted DNA testing and the bill would not apply to those cases.  He clarified the bill would primarily apply to those people on death row who did not have the opportunity to conduct DNA testing.

 

Ben Graham, Legislative Representative, Clark County District Attorney, told the committee in Texas a stay of execution was granted to allow DNA testing and the testing proved the person was guilty.  Mr. Graham felt guilty prisoners would file a petition as a final, desperate act and he noted it was possible that DNA testing would not be conducted at the time of trial if the evidence was overwhelmingly clear and convincing without DNA testing.

 

Mr. Sarnowski indicated that the prosecution does not always test every available piece of evidence and noted defense lawyers had the ability to ask for the appointment of their own expert to conduct DNA testing.

 

Mr. Graham stated he did not want to see an innocent person incarcerated or sentenced to death if there was a test that could exonerate them.  He indicated he would support any efforts to arrive at that goal.

 

Captain James Nadeau, Legislative Representative, Nevada Sheriffs and Chiefs Association, and Washoe County Sheriff’s Office, stated both Washoe County and Las Vegas Metropolitan Police Department had the forensic labs that would likely be used to conduct DNA testing pursuant to A.B. 354.  Captain Nadeau stated DNA cut both ways and submitted a DNA cost analysis for the committee’s review (Exhibit BB).

 

Chairman Anderson closed the hearing on A.B. 354 and brought all three bills to the committee for discussion.  He noted the difficulty policy decision the committee had to make relative to A.B. 327 was whether to move the minimum age for the imposition of the death penalty from 16 to 18.  Although Chairman Anderson felt some amendment was in order, he noted the policy decision the committee had to make relative to A.B. 353 was whether a person could be determined to be mentally retarded by an IQ test and further whether a person determined to be mentally retarded could receive the death penalty.  As to A.B. 354, Chairman Anderson indicated clarification was needed on DNA questions.  Chairman Anderson inquired whether the committee wished to appoint subcommittees.

 

Mr. Carpenter asked, as to A.B. 353, whether there was any suggestion on how to arrive at a definition of mental retardation that was a little tighter than what was currently suggested.

 

Chairman Anderson suggested he hold all three bills while clarification of some of the language was obtained and put the bills into the work session scheduled for April 10, 2001.  He indicated committee members with any suggestions should promptly contact Mr. Anthony, the committee policy analyst.

 

There being no further business to come before the committee, the meeting was adjourned at 12:27 p.m.

 

 

RESPECTFULLY SUBMITTED:

 

 

 

Rebekah Langhoff

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Assemblyman Bernie Anderson, Chairman

 

 

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