MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
April 3, 2001
The Committee on Judiciarywas called to order at 7:36 a.m., on Tuesday, April 3, 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
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
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Rebekah Langhoff, Committee Secretary
OTHERS PRESENT:
Robert Crowell, Legislative Representative, Nevada Judges Association, Carson City, Nevada
John Moore, Legislative Representative, Nevada Bail Bonds Association, Sparks, Nevada
Stan Olsen, Lieutenant, Government Liaison, Las Vegas Metropolitan Police Department, Las Vegas, Nevada
Tom Monahan, Lieutenant, Section Commander, Sexual Assault and Abuse Section, Las Vegas Metropolitan Police Department, Las Vegas, Nevada
Ben Graham, Legislative Representative, Nevada District Attorneys Association, Las Vegas, Nevada
Gemma Waldron, Legislative Representative, Washoe County District Attorney’s Office and Nevada District Attorneys Association, Reno, Nevada
David Gibson, Legislative Representative, Clark County Public Defender’s Office, Las Vegas, Nevada
Lucille Lusk, Legislative Representative, Nevada Concerned Citizens, Las Vegas, Nevada
Dorothy Nash-Holmes, Special Assistant to the Director, State of Nevada, Department of Prisons, Carson City, Nevada
Andy Anderson, Legislative Representative, Nevada Conference of Police & Sheriffs, Las Vegas, Nevada
Clay Thomas, Deputy Chief, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, Carson City, Nevada
Troy Dillard, Unit Manager, Sex Offender Unit, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, Reno, Nevada
John Morrow, Legislative Representative, Washoe County Public Defenders Office, Reno, Nevada
Pat Hines, Legislative Representative, NV Cure, Yerington, Nevada
Glen Whorton, Chief, Classification & Planning, State of Nevada, Department of Prisons, Carson City, Nevada
Roll was called and a quorum was present. Chairman Anderson stated he spoke with Assemblyman Beers who indicated his desire to have A.B. 368 withdrawn.
Assembly Bill 368: Increases penalty for person previously convicted of felony who possesses firearm. (BDR 15-919)
ASSEMBLYMAN CARPENTER MOVED TO INDEFINITELY POSTPONE A.B. 368.
ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT. MRS. ANGLE, MS. BUCKLEY AND MR. NOLAN WERE NOT PRESENT FOR THE VOTE.
Chairman Anderson opened the hearing on A.B. 401, which was introduced by the Assembly Committee on Judiciary on behalf of the Administrative Offices of the Court.
Assembly Bill 401: Makes various changes concerning forfeiture of bail. (BDR 14-525)
Robert Crowell, Legislative Representative, Nevada Judges Association, presented A.B. 401, which he indicated sought to encourage the prompt return to the court system of persons charged with a crime and released on bail. Mr. Crowell indicated the bill would change the time for forfeiture of bail from 180 days to 90 days, meaning if a person was not brought back into court within 90 days, bail would be forfeited. Mr. Crowell told the committee judges believed after 90 days most people who were brought back into the system were brought back by law enforcement after being arrested on a bench warrant for failure to appear or after being arrested for another crime. Mr. Crowell believed a 90-day period had been in effect prior to 1991.
Mr. Crowell noted an important part of the bill was contained in subsections 4 and 5, which provided a bail bondsman must report monthly to the court, while the bond was outstanding, on his efforts to return the person who failed to appear back into the system. The bill also provided that failure to report on a monthly basis could be cause for a forfeiture of the bail. Mr. Crowell indicated it was the Nevada Judges Association’s position this requirement would foster a heightened effort to return people to the system.
Chairman Anderson wondered whether this bill was similar to S.B. 273 of the Seventieth Session. Mr. Crowell indicated this bill was similar, but S.B. 273 of the Seventieth Session had been larger in scope on bail and bail forfeiture matters.
Mrs. Koivisto asked whether there was any input from the bail bond industry. Mr. Crowell noted there was no one from the industry present to testify, and indicated he was led to believe that the industry was somewhat concerned with the reduction in time for forfeiture of bail, but did not have any particular difficulty with the reporting requirements.
Chairman Anderson stated he had spoken with John Moore who indicated there were some concerns by the industry. Chairman Anderson noted his concern about the increased responsibility placed on the bail bondsmen to report to the court. Mr. Crowell reiterated the bill required monthly reporting during the time the bond was outstanding.
Chairman Anderson inquired whether reporting was a problem for most courts in the state. Mr. Crowell indicated he did not know.
Mr. Carpenter hoped someone from the bail bond industry would appear to testify and noted he was concerned that the bill might increase the cost of a bond.
Mr. Carpenter noted that provisions in the statute, which were not being amended by the bill, required a bench warrant to be issued not later than 45 days after a defendant failed to appear. Accordingly, Mr. Carpenter felt the bill significantly shortened the time for returning a defendant to the system. Mr. Crowell indicated Mr. Carpenter was correct that a bench warrant must be issued no later than 45 days after a defendant failed to appear, and added that 20 days’ notice must be given to the bail bondsman that a bench warrant was issued. Mr. Crowell indicated the 90-day time period only started to run after receipt of the 20-day notice that a bench warrant was issued.
Chairman Anderson observed that after a defendant failed to appear the court had 45 days to issue a bench warrant and the defendant had 20 days thereafter to respond. Mr. Crowell clarified after a defendant failed to appear the court had 45 days to issue a bench warrant, however, after the bench warrant was issued the court gave 20 days’ notice of the issuance of the bench warrant to the bail bondsman. Chairman Anderson sought clarification that after the bench warrant was issued the bail bondsman had 20 days to bring the person into court or forfeit the bond. Mr. Crowell stated after the 20-day notice was given, the bail bondsman currently had 180 days from the date of the notice to bring the defendant back. Chairman Anderson asked when the 90-day period began running. Mr. Crowell responded the 90-day period could conceivably begin on the 65th day after the defendant failed to appear, which would be after the 45-day period and the 20-day period. Mr. Crowell stated the 45-day period and the 20-day period were periods of time within which a certain act had to occur, however, the period for forfeiture of bail only started to run after the bail bondsman had received notice of the defendant’s failure to appear.
Mr. Carpenter stated his understanding was that the court must give notice within 20 days after the date on which the defendant failed to appear. Thereafter, before bail was forfeited, the bail bondsman currently had 180 days after the date on which the notice was mailed to bring the defendant back to court. Accordingly, the date the notice was mailed started the 180-day period. Mr. Crowell confirmed Mr. Carpenter’s understanding was correct.
Chairman Anderson asked whether the court’s main concern was the lack of a monthly report. Mr. Crowell indicated it was. Chairman Anderson suggested that perhaps the timing issue was not as important as the monthly reporting issue. Mr. Crowell advised the main thrust of the bill from the judges’ point of view was the reporting requirement.
John Moore, Legislative Representative, Nevada Bail Bonds Association, stated the association was opposed to A.B. 401 primarily because most of the bill was contained in S.B. 273 of the Seventieth Session on which an agreement had been reached. Accordingly, the association did not see a need for the bill and did not understand why the issues were back.
Chairman Anderson indicated the courts were concerned about the lack of monthly reporting. Mr. Moore indicated those requirements were negotiated out of S.B. 274 of the Seventieth Session and noted some of the larger justice courts indicated the paperwork was burdensome and unnecessary.
Chairman Anderson closed the hearing on A.B. 401. He felt the issue had been taken care of in the last session and indicated that more time was needed in order to determine whether there really was a problem.
ASSEMBLYMAN CLABORN MOVED TO INDEFINITELY POSTPONE A.B. 401.
ASSEMBLYMAN CARPENTER SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT. MS. BUCKLEY WAS NOT PRESENT FOR THE VOTE.
Chairman Anderson opened the hearing on A.B. 408.
Assembly Bill 408: Makes various changes to provisions governing sexual offenses. (BDR 15-658)
Assemblyman Mark Manendo, representing Assembly District 18, primary sponsor of the bill, brought A.B. 408 forward on behalf of the Las Vegas Metropolitan Police Department to clean up some confusion regarding crimes against children and codify existing case law. Mr. Manendo indicated there were problems with the original bill and amendments had been prepared to correct those problems.
Stan Olsen, Lieutenant, Government Liaison, Las Vegas Metropolitan Police Department, told the committee Lieutenant Tom Monahan would present the amended language for A.B. 408.
Tom Monahan, Lieutenant, Section Commander, Sexual Assault and Abuse Section, Las Vegas Metropolitan Police Department, provided the committee with the amended language for the bill, which eliminated the applicability of the statute only to persons under the age of 18, increased the age of the victim from 14 to 16, and added the condition that the provisions of subsection 2 did not apply to a person who was not more than 2 years older than the victim (Exhibit C).
Chairman Anderson clarified the amended language in the bill at Sections 1 and 2 would remain, and confirmed the language provided by Lieutenant Monahan applied to Section 3.
Chairman Anderson asked Lieutenant Monahan to explain the practical application of the bill with regard to the change in age requirements, and wondered whether the bill would apply if the offender was 16 years old and the victim was 14 years old. Lieutenant Monahan confirmed that if there were less than two years difference in the ages of the offender and the victim, the bill would not apply. He noted the amended language resulted from a concern that the original language would not allow juveniles to be punished, even if they were a day shy of their 18th birthday. However, in an attempt not to criminalize teenage lust, compromise language was prepared.
Chairman Anderson confirmed if one person was just shy of 18 years of age and the other person was one year younger, the bill would not apply. However, if one person was 14 and the other person was 17, the bill would apply. Lieutenant Monahan confirmed Mr. Anderson was correct, and noted the bill still allowed for a certain amount of prosecutorial discretion as to the determination of criminal intent.
Chairman Anderson wondered whether the bill applied when one person was over 18 years of age, even if there was less than two years difference in age. Lieutenant Monahan noted there would be no crime as long as the age difference was less than two years and the younger of the two people involved was over age 16.
Chairman Anderson noted the bill raised the age of the victim from 12 to 16 for sexual seduction, which was a “category C” felony, if the offender was at least 21 years of age, and a gross misdemeanor if the offender was under 21 years of age. Lieutenant Monahan stated the section did not address the sexual seduction statute but the lewdness with a minor statute, which were acts that fell short of sexual intercourse. He noted the current age of the victim for lewdness with a minor was set at 14, and the bill would make acts that fell short of sexual intercourse consistent with the age of consent for sexual intercourse.
Chairman Anderson asked whether the first two sections of the bill were to be deleted. Lieutenant Monahan indicated he was previously referring specifically to subsection 3. He stated with regard to Section 1, the bill would codify existing case law that suggested children under the age of 12 lacked the capacity to consent and would prevent children under the age of 12 from being forced to testify as to how their lack of resistance constituted consent. Chairman Anderson clarified that the amendments would make it possible to find a person under the age of 18 guilty of lewdness with a minor except in cases where there was less than 2 years difference between the age of the offender and the victim.
Risa Lang, Committee Counsel, indicated that instead of applying Section 3 only to adults, the amendment made Section 3 applicable to everyone provided the defendant was at least two years older than the victim.
Chairman Anderson confirmed that the intent behind the amendment was to establish uniformity between case law and statutory law.
Lieutenant Monahan pointed out there were two different parts to the bill: Section 2 attempted to make statutory law conform to existing case law, and Section 3 rewrote lewdness with a minor under 14 to be lewdness with a minor under 16.
Ben Graham, Legislative Representative, Nevada District Attorneys Association, stated the intent of the amendment was to close a loophole without classifying certain juvenile sexual behavior as criminal. Mr. Graham indicated the bill was not intended to be overreaching and he acknowledged there was confusion about the amendments which he was unable to straighten out at the present time.
Gemma Waldron, Legislative Representative, Washoe County District Attorney’s Office and Nevada District Attorneys Association, believed the bill would make it a “category A” felony for a person to fondle someone who was more than two years younger in age, meaning a high school senior could be charged with a “category A” felony for fondling a freshman. Additionally, Ms. Waldron noted Section 2 of the bill provided that a minimum sentence of only five years could be imposed for sexually assaulting the same person.
With Mr. Manendo’s permission, Mr. Graham respectfully requested A.B. 408 be put on hold in order to give the parties an opportunity to work out the ambiguities in the bill.
Mr. Manendo reiterated he was aware an amendment to the bill would be necessary. He stated the intent was to do more to protect children. However, he was concerned with the last part of the amendment and noted it was not the intent of the bill to apply to the freshman/senior scenario described.
David Gibson, Legislative Representative, Clark County Public Defender’s Office, felt that inserting the age 12 into the bill was a problem that would have unintended consequences. Mr. Gibson was concerned that the bill could apply to children in elementary school and he believed the implication that a 12-year-old could not consent created a problem by implying a 12-year-old was also incapable of formulating intent to commit a crime. Mr. Gibson noted there were cases in which 12-year-olds had assaulted children even younger than 12, and the bill would not allow prosecution of such a person because they were not old enough to understand what they were doing.
Lucille Lusk, Legislative Representative, Nevada Concerned Citizens, stated:
Thank you, Mr. Chairman and members of the committee. I am hesitant to jump into this discussion for obvious reasons. However, the discussion that has taken place with regard to Section 3, it seems to me that there are still some points missing. As the law is currently written, any person of any age could be prosecuted for committing these lewd or lascivious acts. As the bill was written, only a person over 18 could be prosecuted for it, and therefore the problem that was created was that you could have a 17-year-old who, in fact, committed such acts with a 2- or 3-year-old and they would not have been covered. The amendment that was offered today was clearly intended to resolve that problem, though perhaps unsuccessfully. I guess I am here before you to suggest that there does need to be a correction if you move with the bill, maybe the amendment language didn’t resolve it, but there does need to be something that does. Then I have one other question to raise in Section 2, line 4, the deletion of the word “or” seems to me to make a change so that without the “or” it creates a condition of against the will of the victim and under conditions in which the perpetrator knows or should know, etc., rather than one or the other of those conditions. Now, I may be wrong about that but I’m simply raising that as a question as things get discussed. The reason it seems like that to me is because there are “or’s” in previous clauses, then you go to clauses without an “or” and then you go back to clauses with an “or,” which seems to me, at least grammatically, perhaps not legally, to imply such a thing. The bill is very difficult to understand. It took multiple readings and consultations before I was able to understand the intent and I think the intent is honorable but may, in fact, have some consequences that were not intended. Thank you.
Chairman Anderson believed the bill drafter merely moved the word “or” from line 4 to the beginning of the parenthetical clause at line 7. He did not believe the sequence of events was broken by the change. Ms. Lang felt Mr. Anderson was correct.
Chairman Anderson closed the hearing on A.B. 408 and asked Mr. Gibson to work with the District Attorneys Association to determine whether the bill could be saved.
Chairman Anderson indicated the committee would hear A.B. 437 next. Ms. Ohrenschall requested the Chair’s indulgence to trail A.B. 437 as she was expecting a videotape to be delivered which had not yet arrived.
Accordingly, Chairman Anderson indicated the committee would hear A.B. 580. There were no witnesses present to testify on A.B. 580.
Chairman Anderson reminded the committee it previously heard A.B. 481, which prohibited in certain circumstances a person from operating a sound amplification system in a motor vehicle in a certain manner, and the committee had moved to amend and pass the legislation. Chairman Anderson indicated at the time the bill was heard he would allow members of the committee an opportunity to review the amendment before it was presented (Exhibit D). Chairman Anderson noted any vehicle, which was used as part of a licensed business, which operated a sound amplification system to advertise the business, such as an ice cream truck, was specifically excluded.
Chairman Anderson opened the hearing on A.B. 437.
Assembly Bill 437: Makes various changes related to sentencing of certain offenders and community notification of sex offenders. (BDR 14-1285)
Assemblywoman Genie Ohrenschall, representing Assembly District 12, primary sponsor of the bill, provided the committee with a brief introduction to A.B. 437 (Exhibit E). Ms. Ohrenschall anticipated playing a videotape of a news story that portrayed the exact situation A.B. 437 sought to correct, however, the videotape had not yet arrived. Ms. Ohrenschall indicated the news story was about a man with a history of prior arrests for what would have been felony sexual predator crimes, except none of the offenses had been prosecuted to conviction and one was plea-bargained down to a gross misdemeanor. Only a few days after his release, the man raped a 17-year-old girl and beat her viciously. Ms. Ohrenschall stated that if the man had been prosecuted for one of his previous felonies, the last offense could possibly have been prevented.
Ms. Ohrenschall noted the bill would require a psychologist or psychiatrist to certify that a person was not a menace to others before a court could grant probation to, or suspend the sentence of, a person convicted of various sexual offenses. Ms. Ohrenschall stated the certification requirement could also apply to a person charged but not convicted of various crimes if the person was found guilty of another offense arising out of the same facts.
Ms. Ohrenschall suggested an amendment to the bill be prepared which would require the certification process to be routed through the Nevada Division of Parole and Probation because that department already handled similar matters and therefore the fiscal impact would be reduced.
Tom Monahan, Lieutenant, Section Commander, Sexual Assault and Abuse Section, Las Vegas Metropolitan Police Department, indicated the Las Vegas Metropolitan Police Department supported the bill because it acknowledged the fact that there were sexual predators that had not risen to the level of committing a sexual assault, sometimes only due to the care taken by the intended victims. Lieutenant Monahan stated he also supported the proposed amendment that charged Parole and Probation with any additional requirements relating to the tier rating of sex offender community notification.
Ms. Buckley felt a better approach in dealing with sexual predators was to “throw away the key” after the second offense. She recalled testimony from a previous session that indicated sexual predators often established a pattern of committing a crime, serving time in jail, getting out, and committing another crime. Ms. Buckley felt the solution should be to stop the “revolving door.” Ms. Buckley asked Lieutenant Monahan what his experience was with those types of situations. Lieutenant Monahan felt it was important for the committee to understand that sex offenders operated from “needs driven” behavior, and while a person may not ultimately be convicted of a full-blown felony sexual assault, it did not make that person any less of a sexual predator. Lieutenant Monahan stated he did not disagree with Ms. Buckley regarding removing the sex offender from society and felt the recidivism rates had shown that removal from society was the most successful means to protect society because rehabilitation failed more often than not.
Mr. Carpenter indicated he had a problem with certifying that a person was not a menace to society and did not feel comfortable that anyone had the expertise or qualifications to make such a certification. Mr. Carpenter agreed with Ms. Buckley that the best way to address the problem was to impose longer prison terms. Lieutenant Monahan agreed with Mr. Carpenter, indicating he was not certain there was any individual capable of determining that a person would be a risk to society or predicting future behavior. Lieutenant Monahan noted the bill added an extra step prior to releasing sex offenders by requiring an offender to be evaluated prior to release.
Ms. Ohrenschall noted the bill also addressed cases in which a person was not actually convicted of the sex crime for which he was charged but had a long history of prior sex crimes.
Chairman Anderson confirmed that the offenses of annoyance and molestation of a minor would be added to the list of applicable crimes under the bill and, accordingly, some misdemeanor and gross misdemeanor offenses would require community notification of sex offenders and would be raised to the level of a felony offense. Ms. Ohrenschall indicated the intent of the bill was to examine the people who committed those crimes carefully and to try to determine, based on the individual’s prior record, whether the person posed a risk to society. Chairman Anderson inquired as to those individuals charged but not convicted, and noted they would be subject to the enhanced penalty. Ms. Ohrenschall indicated the psychiatrist conducting the evaluation presumably had standards to which the individual could be compared, and if there were no prior offenses and the individual did not meet the standards, the individual would not be subject to community notification. Chairman Anderson reiterated his observation that the bill required some misdemeanor and gross misdemeanor offenses to be treated as felonies for purposes of probation.
Mr. Oceguera noted that the actual conviction of a crime was fundamental to our judicial system and he expressed concern that the bill was too broad in scope. Ms. Ohrenschall reiterated that whatever charge a person was convicted of must arise strictly from the same fact pattern on which the person was originally charged.
Gemma Waldron, Legislative Representative, Washoe County District Attorney’s Office and Nevada District Attorneys Association, indicated she was substituting for Captain Jim Nadeau, who represented the Sheriffs and Chiefs Association. Ms. Waldron noted the bill did not address the fact that many residential confinement or work programs originated out of the sheriff’s office, and the sheriff’s office did not have any ability to send a person for certification prior to releasing them. Ms. Waldron noted the issue may be dealt with in the proposed amendment, but noted certification was usually procured through the defense attorney and she was unsure how the program would work for a person who was in custody and not represented by an attorney.
Ms. Ohrenschall indicated the issues addressed by Ms. Waldron would be handled by the Division of Parole and Probation and would be included in the proposed amendment, which she had not yet prepared.
Dorothy Nash-Holmes, Special Assistant to the Director, State of Nevada, Department of Prisons, indicated she appeared on behalf of Director Jackie Crawford, who was ill. Ms. Holmes indicated the Department of Prisons supported A.B. 437, even though it had no jurisdiction over persons convicted of misdemeanors, because the bill offered a form of preventive correction. She noted experience had shown that most sex offenders who were convicted of a felony had many priors in their background and sexual behavior escalated. Ms. Holmes believed the state should do everything it could to identify potential felony sex offenders early and certify them to not be a risk to society. Ms. Holmes noted a standard already existed in law to certify felons not to constitute a danger prior to release and the Department of Prisons felt it was a good practice.
Andy Anderson, Legislative Representative, Nevada Conference of Police & Sheriffs, supported A.B. 437 and indicated he joined in the testimony provided by Lieutenant Monahan.
Chairman Anderson called on those who wished to provide neutral testimony on A.B. 437.
Clay Thomas, Deputy Chief, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, indicated Parole and Probation oversaw psychiatric and sexual evaluations for individuals convicted, as noted in earlier testimony. However, Mr. Thomas was concerned that payment for those evaluations came out of the Parole and Probation budget and the scope of the bill would increase the number of evaluations to be conducted and was a budgetary concern to Parole and Probation.
Chairman Anderson inquired whether the burden placed on Parole and Probation would be impossible to meet. Mr. Thomas indicated Parole and Probation was not budgeted to meet the demand, nor had it anticipated the demand, and accordingly, if the legislation passed, the Parole and Probation budget would need to be evaluated to determine the impact of the legislation.
Troy Dillard, Unit Manager, Sex Offender Unit, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, clarified for the committee that the individuals that provided the evaluations were not employees of Parole and Probation, but were contracted. Mr. Dillard felt the increased demand for evaluations would make it necessary to contract with additional providers to conduct evaluations.
Chairman Anderson noted the bill provided for an unfunded mandate to local governments although there was no fiscal note prepared. Ms. Ohrenschall believed a fiscal note was being prepared and felt that the impact would not be great.
Mr. Nolan asked whether the private clinicians who provided the evaluations were the same doctors who maintained a therapeutic program for offenders while the offenders were on probation. Mr. Nolan also wondered who paid for the continuing treatment. Mr. Dillard responded, in Reno, two of the five evaluation providers also provided ongoing counseling for offenders on supervision. He stated the cost was passed on to the offender; however, the collection of the cost was not always possible. Mr. Nolan asked who paid for the evaluation when the cost could not be collected from the offender. Mr. Dillard indicated the evaluation would be conducted even if the offender could not pay, however, if the offender could not pay for ongoing counseling the offender could be removed from the program, which would constitute a parole violation.
As to justice court cases, Chairman Anderson wondered whether the cost for a court-ordered evaluation would be the responsibility of the offender. Mr. Dillard could not answer questions regarding justice court cases, but assumed, pursuant to the proposed amendment, the cost of the evaluation would be the responsibility of Parole and Probation if the offender could not pay.
Mr. Carpenter asked whether the evaluations were generally accurate and asked if follow up was conducted to determine whether the evaluation had been useful. Mr. Dillard indicated in some of the cases in which a person was certified not to be a threat to society the offender did end up on supervision or in prison. As to the cases supervised by Parole and Probation that psychologists had evaluated in the sex offender unit, Mr. Dillard stated it was not a simple matter of whether the assessment was appropriate because recidivism in sex offenses was so hard to judge. Mr. Dillard indicated numerous individuals were arrested for crimes that did not constitute new felony criminal charges, but the behavior displayed was behavior that gave that person a higher risk to commit another sex offense. Mr. Dillard indicated that, in the north, very few people had been rearrested on new sexual offenses while on supervision for a sexual offense but many sexual offenders were rearrested for other offenses.
Mr. Carpenter asked what type of crimes sexual offenders were rearrested for if they were not rearrested for a sexual offense. Mr. Dillard responded typically the crimes for which sex offenders were rearrested were related to substance abuse. He stated that alcohol and drug use tended to lower inhibition and lower inhibition in sex offenders posed a greater risk to commit another sexual offense because of the “needs driven” behavior.
Chairman Anderson called on witnesses who wished to testify in opposition to A.B. 437.
John Morrow, Legislative Representative, Washoe County Public Defenders Office, stated he did not oppose harshly treating sexual predators, however, he felt A.B. 437 may have a number of unintended consequences. Mr. Morrow did not know of any prosecutor that was plea-bargaining sex offenses when the prosecutor could prove his case. He noted, pursuant to the misdemeanor provisions of A.B. 437, a young lady who exposed herself in a bar after having too much to drink could be charged with a sex offense and would be treated as a sex offender for the rest of her life. Mr. Morrow noted a man “mooning” cars could become subject to all of the procedural requirements of the bill and he did not feel it was appropriate to burden the system with the evaluation and registration of those people. As an aside, Mr. Morrow noted S.B. 241, which revised provisions relating to determination of whether certain offenders constituted a menace to health, safety, or morals of others, contained a more modern version of health, safety, and morals language. Mr. Morrow felt requiring Parole and Probation to evaluate misdemeanor offenders crossed their jurisdictional bounds.
David Gibson, Legislative Representative, Clark County Public Defender’s Office, expressed concern over the provision in the bill which would make the bill applicable to people who were charged with an offense listed in the bill, but not convicted of a sexual offense. Mr. Gibson pointed out the provision could apply to a man urinating on a golf course or any kind of a situation that was mistaken for or interpreted as a sexual event, regardless of the ultimate disposition. Mr. Gibson felt it was not appropriate to register a person as a sex offender if that person was not convicted of a sex offense and he felt the bill went above and beyond what was fair. He stated the bill set forth that if a person was charged with a sex offense, that person would be evaluated and registered as a sex offender provided the person was convicted of any crime arising out of those facts and circumstances, even if the crime was a curfew violation, trespass, or burglary.
Mr. Gibson noted Clark County paid for evaluations, which cost $680 to $875 each, and he indicated Clark County did not have the money to pay for evaluations in justice and municipal court cases.
Ms. Ohrenschall commented the bill did not provide if a person was simply charged at some point with a sex crime, they would forever after be required to register as a sex offender. She indicated the bill provided that under certain circumstances a person must be psychologically evaluated to determine if they were a risk to the community. Ms. Ohrenschall felt that in the instances offered by Mr. Gibson, any competent psychiatrist would find that the person posed no risk.
Mr. Gibson observed that if a person was not convicted of a sexual offense, they should not be required to go to a psychiatrist to be evaluated for anything, unless an evaluation was required for the crime to which they pled guilty.
Ms. Ohrenschall advised the videotape she referenced earlier had arrived and inquired whether the committee cared to view it.
Chairman Anderson noted the video could be viewed after all testimony had been heard.
Pat Hines, Legislative Representative, NV Cure, opposed A.B. 437 as written because she felt it was absolutely against the constitutional right of being presumed innocent until proven guilty. Ms. Hines suggested the degree of the sexual offense should be considered as all sex offenders were not of the same severity and did not deserve the same punishment. Ms. Hines believed that rehabilitation did work. She felt that if an offender served their time they deserved a second chance and should not be denied an opportunity simply on the basis that they “might” commit another crime. Ms. Hines stated she had reviewed statistics from 1998, which reflected 1,600 sex offenders were returned to prison and the majority of them were returned for committing a new crime, absconding, or on a basic technicality. Ms. Hines believed it was unfair to the sexual criminal class that there were no statistics on recidivism for the committee to consider. Without statistics Ms. Hines felt there was no way to know whether registered sex offenders under the supervision of Parole and Probation were committing the current sex offenses or whether current sex offenses were being committed by new offenders.
Ms. Ohrenschall pointed out that the evaluation proposed by A.B. 437 would occur prior to an offender serving his entire sentence because the offender would not come under the supervision of Parole and Probation if their full sentence had been served.
Chairman Anderson noted there were no other witnesses to testify on A.B. 437 and accordingly, the committee watched the video of news broadcasts presented by Ms. Ohrenschall (Exhibit F).
Chairman Anderson called Lieutenant Monahan back to the witness table and asked how he thought the burden of the psycho-sexual evaluation would be dealt with at the justice court level and what the impact would be on the Las Vegas Metropolitan Police Department if the bill was passed. He further asked what would be done with an offender in justice court who was evaluated and found to be a risk to the community. Lieutenant Monahan responded if a person was convicted of a misdemeanor crime under the bill, and was sentenced by a justice court judge and the evaluation indicated a significant risk of re-offending, the judge could sentence the offender to up to six months in the county jail. Chairman Anderson asked what would happen to the offender at the end of the six months in jail. Lieutenant Monahan indicated the offender’s sentence would be completed and the offender would be free. Chairman Anderson inquired whether the offender would receive treatment while in jail. Lieutenant Monahan did not know but indicated the offender might be placed into one of the three tiers and subject to community notification.
Chairman Anderson closed the hearing on A.B. 437 and indicated he would wait for the proposed amendment to be prepared.
Chairman Anderson opened the hearing on A.B. 580.
Assembly Bill 580: Eliminates provisions pertaining to contracts concerning sale or donation of blood or blood plasma by offenders. (BDR 16-622)
Glen Whorton, Chief, Classification & Planning, State of Nevada, Department of Prisons, told the committee A.B. 580 proposed the repeal of Nevada Revised Statute 209.383, which was an artifact of a practice by the Department of Prisons (DOP) that was no longer carried out. Mr. Whorton recalled that in the 1970s and 1980s the DOP was engaged in contractual relationships with vendors who operated plasma centers and took blood donations within the DOP. With the onset of the AIDS problem, and the adoption of related federal regulations, this practice became impractical and was no longer carried forward. Accordingly, Mr. Whorton stated the statute was no longer necessary for the operation of the DOP and did not appear to be necessary at any point in the future.
Chairman Anderson confirmed that by passing A.B. 580 the unnecessary law would be repealed.
Mr. Nolan noted there was often a blood shortage during particular times of the year and wondered whether blood service agencies approached the prisons for donations during those shortages. Mr. Whorton responded that blood agencies did not approach the prisons for donations because of federal regulations.
Chairman Anderson confirmed there were no other persons wishing to testify either in support of or opposition to A.B. 580, and accordingly he closed the hearing on A.B. 580.
ASSEMBLYWOMAN BUCKLEY MOVED DO PASS A.B. 580.
ASSEMBLYMAN GUSTAVSON SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT. MS. MCCLAIN WAS NOT PRESENT FOR THE VOTE.
There being no further business to come before the committee, the meeting was adjourned at 10:01 a.m.
Rebekah Langhoff
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: