MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
May 2, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:30 a.m., on Wednesday, May 2, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was video conferenced to the Grant Sawyer State Office Building in Las Vegas. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator Jon C. Porter, Vice Chairman
Senator Mike McGinness
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
COMMITTEE MEMBERS ABSENT:
Senator Maurice Washington (Excused)
GUEST LEGISLATORS PRESENT:
Assemblywoman Kathyrn (Kathy) A. McClain, Clark County Assembly District No. 15
Assemblywoman Sandra J. Tiffany, Clark County Assembly District No. 21
Assemblywoman Barbara E. Buckley, Clark County Assembly District No. 8
Assemblyman Douglas (Doug) A. Bache, Clark County Assembly District No. 11
STAFF MEMBERS PRESENT:
Bradley A. Wilkinson, Committee Counsel
Allison Combs, Committee Policy Analyst
Barbara Moss, Committee Secretary
OTHERS PRESENT:
Nancy E. Hart, Deputy Attorney General, Civil Division, Office of the Attorney General
Susan J. Meuschke, Lobbyist, Nevada Network Against Domestic Violence
Mary Berkheiser, Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice
John C. Morrow, Lobbyist, Chief Deputy, Washoe County Public Defender
David S. Gibson, Lobbyist, Clark County
Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association
Robert W. Teuton, Chief, Juvenile Division, Office of the District Attorney, Clark County
Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office
Andrew A. List, Lobbyist, Nevada Association of Counties
Benjamin J. Blinn, Lobbyist
Stephanie Licht, Lobbyist, Elko County Board of Commissioners
Scott Cook, Chief Juvenile Probation Officer, Washoe County
Leonard Pugh, Assistant Director, Department of Juvenile Services, Washoe County
Gary Hunter, Reverend, Greater Saint James Baptist Church, and President, Pastors and Ministers Conference of Las Vegas
Susan Morandi, Deputy Secretary of State, Elections Division, Office of the Secretary of State
Senator James opened the hearing on Assembly Bill (A.B.) 259.
ASSEMBLY BILL 259: Revises certain provisions governing warrantless arrests. (BDR 14-212)
Assemblywoman Kathyrn (Kathy) A. McClain, Clark County Assembly District No. 15, pointed out A.B. 259 was amended significantly in the Assembly, but the remainder of the bill is very important. She said the bill clearly states, in cases of domestic violence, the perpetrator can be arrested without obtaining a warrant during regular work hours. Ms. McClain indicated A.B. 259 is a common-sense bill which clarifies in statute that warrantless arrests cover domestic-violence cases.
Nancy E. Hart, Deputy Attorney General, Civil Division, Office of the Attorney General, read from a prepared statement (Exhibit C) in support of A.B. 259. She explained the bill does not actually clarify that arrest is warrantless because it is already provided in Nevada law; rather it clarifies that warrantless arrests can be made any time of day or night.
Senator James inquired whether domestic battery, where there is bodily harm, is a felony. Ms. Hart answered it is a misdemeanor. She added the definition basically is old and predates some of the changes in 1997 to Assembly Bill 170 of the Sixty-Ninth Session, and was overlooked at the time.
ASSEMBLY BILL 170 OF THE SIXTY-NINTH SESSION: Makes various changes concerning domestic violence. (BDR 14-571)
Answering an inquiry about Nevada Revised Statutes (NRS) 33.018, Ms. Hart said NRS 33.018 is the definition of acts and parties. Senator James asked for the definition, noting that domestic violence does not require bodily harm. Ms. Hart agreed. In response to the senator’s query about NRS 171.137, Ms. Hart said it is the mandatory-arrest statute for domestic battery. She further explained NRS 171.136 provides when arrest may be made, and NRS 171.137 provides that, whether or not a warrant has been issued, a police officer shall arrest when there is domestic battery. Therefore, NRS 171.136 was not changed at that time. Ms. Hart indicated most law enforcement officers look to NRS 171.137 when deciding whether or not to arrest within 24 hours, which is the reason the amendment was proposed. She said NRS 171.136 needs clarification because it conflicts with NRS 171.137. Ms. Hart pointed out some law enforcement officers have hesitated to make an arrest when the time is between 7 p.m. and 7 a.m., which is a time when many such incidences occur; therefore, the law should be clarified to state a warrantless arrest can happen any time of the day.
Senator Care clarified the 24-hour period is still applicable under the amended NRS 171.136. Ms. Hart answered, “Correct.”
Susan J. Meuschke, Lobbyist, Nevada Network Against Domestic Violence, expressed support for A.B. 259. She said, clearly, the Legislature did not intend to create a battery-free zone during any time of the day or night when battering or violating a protection order would not be covered by the law. Ms. Meuschke prevailed on the committee to amend the law.
Senator James closed the hearing on A.B. 259 and opened the hearing on Assembly Bill 308.
ASSEMBLY BILL 308: Revises provisions concerning waiver by juveniles of right to counsel. (BDR 5-464)
Assemblywoman Sandra J. Tiffany, Clark County Assembly District No. 21, explained that her involvement with A.B. 308 came about during a visit to the William S. Boyd School of Law, University of Nevada, Las Vegas, when she offered her services to Professor Mary Berkheiser, the director of clinical studies. Ms. Tiffany indicated Professor Berkheiser expressed a concern about one of her clinical areas at juvenile court regarding the right to waiver. The professor had explained to Ms. Tiffany that juveniles can, and do, waive their right to an attorney. Ms. Tiffany said juveniles may or may not recognize the severity and long-term impact of waiving their rights. They could be pleading to a felony, a misdemeanor, or a gross misdemeanor, and after the first, second, or third time, there could be quite an impact. Consequently, she suggested the language “unless waived” be omitted from the statute.
Mary Berkheiser, Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas, indicated she is the director of clinical programs, which began this year, and said she is seeking additional funding to enhance the clinic. Professor Berkheiser said she was present at the hearing, not for the law school, but as an advocate for juvenile justice. She explained the clinic contains students certified to practice by the Nevada Supreme Court under a student-practice rule in their third year of law school, and they practice under her supervision. The professor pointed out she practiced law in Phoenix, Arizona, for 10 years, possesses a clinical certification to practice in Nevada, and has been a member in good standing of the State Bar of Arizona since 1984. She explained clinic students are allowed to go into court and practice law as long as they are under the direct supervision of someone like herself. Professor Berkheiser said although students perform work alone, she is present every time they are in court.
Continuing, Professor Berkheiser indicated when she first began observing hearings in juvenile court, she was surprised the only lawyer in the courtroom, besides the judge, was the assistant district attorney. There was no lawyer for the juvenile in the courtroom at plea hearings. She pointed out the juveniles were brought into the courtroom and asked whether or not they wanted a lawyer, and had to affirmatively request a lawyer before they were provided one. The juvenile would stand up before the judge, not knowing what they were doing, and say they did not want a lawyer. The professor declared juveniles on the street are aware it may take longer for them to be released should they request a lawyer and be required to return for another hearing.
Further, Professor Berkheiser expressed concern about the consequences of a juvenile waiving his/her rights. She said juveniles adjudicated delinquent on a charge that would be a felony if committed by an adult are often precluded. The professor noted a felony charge could impact enlisting in the military, receiving federally-insured student loans to go to college, becoming teachers, lawyers, and/or entering other professions where licensing is required. She remarked that is antithetical to what juvenile courts are all about, which is holding children accountable, but giving them a chance, and not ruining their lives. Although she was not speaking “doom and gloom,” the professor affirmed there have been juveniles profoundly affected by waiver of rights, and the consequences thereof, because no one advised them of their rights. Professor Berkheiser expressed appreciation for Assemblywoman Tiffany’s rapid handling of the drafting of A.B. 308, with the help of Assemblywoman Buckley.
Commenting further, Professor Berkheiser stated juveniles have a right to counsel, which was established in the United States Supreme Court case, In Re Gault, 87 S.Ct. 1428 (1967), which came out of Arizona. In that case, the United States Supreme Court said juveniles have a right to be represented by a lawyer. Since then, almost all jurisdictions in the country provide lawyers to juveniles from the time they enter the courtroom. She indicated A.B. 308 seeks to remove the language “unless waived” in NRS 62.085, which gives tacit approval to present waiver procedures in some counties. At the same time, Professor Berkheiser said she recognized that other counties in the state have been providing counsel for juveniles since In Re Gault came down in 1967. Therefore, she indicated, the goal is to remove “unless waived” in order that waiver cannot be accomplished with the “back of a hand,” as is done currently. The professor stated juveniles should know they have a right to counsel and that right is protected. She said she was not implying, nor did she mean to say that juveniles could never waive the right to counsel, it just requires a lengthy and thorough questioning about their knowledge of the rights they are waiving.
Professor Berkheiser indicated she had observed that many children coming into court are learning disabled, have low self-esteem, emotional, and other kinds of problems that hinder their understanding. In addition, she noted, teenagers do not have a very good concept of the consequences or an understanding of their rights. The professor pointed out two-thirds of children who come to court on delinquency charges have emotional and behavioral problems, are learning disabled, and have no clue of what they are doing in most circumstances, particularly when no one explains their rights to them.
Digressing for a moment, Professor Berkheiser said she saw the issue from another side when she taught high school English in an alternative school in Tucson, before becoming a lawyer. She indicated many students had been in trouble with the law and were assigned probation officers. The professor reflected children are in trouble with the law and school because they are in trouble with life. She said this adds to the notion that they come to court ill equipped to waive important constitutional rights.
Continuing, Professor Berkheiser stated A.B. 308 would not change the good things about juvenile court. If lawyers are provided from the very beginning there is no reason the therapeutic and rehabilitative nature of juvenile court would change. She pointed out her clinic students work with juvenile clients to convince them to acknowledge whatever they have done wrong, but not admit to things they have not done. The professor noted there would be a fiscal impact for counties that have not been providing counsel from the beginning. That impact would be felt most severely in Clark County where budget estimates are quite large. She acknowledged, A.B. 308 is not without a price tag, but asserted everything has a price tag.
In conclusion, Professor Berkheiser proclaimed, “In a society like ours where we value equality, justice, and fairness for all, we should not misrepresent our children, even those accused of crimes, because many of them may not have committed the crimes, or may be easily manageable if given a chance. Everyone needs to be treated fairly and have the same rights as others.”
Assemblywoman Barbara E. Buckley, Clark County Assembly District No. 8, expressed support for A.B. 308. Although she rarely testifies on other legislator’s bills, she said, her testimony demonstrates the strength of her feeling on the importance of A.B. 308. Ms. Buckley indicated she became acquainted with the topic about 1½ years ago when her office began a “children’s attorneys project,” which Senator Porter helped establish. In that context, she said her law firm represents abused and neglected children, not in delinquency actions, but with regard to their rights. She maintained her law firm is the children’s voice as to whether or not they want to return to their families, or be placed in a foster home. Most of the individuals represented are teenagers who may have been placed in a fifteenth, sixteenth, and/or seventeenth foster home. Some children are very maladjusted after being shifted from home to home. Ms. Buckley said in certain cases the children “act out” in a foster home. They do things such as throw a telephone at the foster parent and demand to talk on the telephone. In a normal home, parents ground the child; however, when foster parents cannot handle the behavior, authorities are called and the child is taken to juvenile court. She noted there have been cases in which behavior that warrants grounding, sends a child to either Caliente Youth Center or the Nevada Youth Training Center in Elko.
Ms. Buckley said she found it astounding that none of the children ever spoke with a lawyer during juvenile-court proceedings, and either foster parents or social workers waived their right to an attorney. She pointed out nothing evil was intended, and the individuals involved believed the child needed more discipline. However, in the mind of the child, he/she is sentenced for an offense that does not warrant sentencing. Ms. Buckley stressed juveniles should possess the right to have an attorney argue that the offense is not severe enough and they should be provided another chance at a loving home. Ms. Buckley emphasized, due to those circumstances, she supports A.B. 308. She noted some attorneys who work with juveniles feel compelled to come forward and provide them a voice. It was Ms. Buckley’s opinion the juvenile district attorney’s office does a good job in its attempt to appropriately place children and not punish them unnecessarily. She pointed out a need for someone to stand up for the rights of a child and argue points that might not be apparent on the face of the case.
Continuing, Ms. Buckley noted a case in which a girl ran away 16 times. She said everyone threw up their hands in frustration and wondered what could be done with her, other than sentencing and incarceration. Ms. Buckley remarked that is the kind of case in which an attorney could make a difference.
Senator James questioned whether or not a juvenile’s rights could still be waived should the language be removed from the statute. Ms. Buckley pointed out Professor Berkheiser made the point that knowing waivers, intelligently made, is not the problem; on the contrary, the problem has become the wholesale practice of taking the ability to have a knowing waiver and wiping it out. Senator James agreed, but asked what would change should the language be removed from the statute.
Professor Berkheiser responded should the language “unless waived” be removed from the statute without a statement regarding what is required for a waiver, it would appear to allow waiver without requiring any particular questions to be asked. Asked whether the United States Supreme Court case set out a definition of a knowing waiver, the professor indicated there are many cases on what a knowing waiver is; however, there has not been a United States Supreme Court case on it. She said there is a possibility the Legislature could work with the district attorney, and others, to create an amendment that would actually have, as part of the statute, a spelling out of what is required for waiver.
Senator James queried whether there is constitutional authority for what must take place for a juvenile to make a knowing waiver. Professor Berkheiser answered there is no constitutional authority, it is a matter of practice in the courts. The senator asked whether there is a constitutional requirement as to whether a constitutional right is waived. The professor answered no, not for juveniles. However, what has been addressed in other courts (not the United States Supreme Court) is the question of whether adults have a right to self representation (Faretta v. California, 95 S.Ct. 2525 (1975)); however, United States Supreme Court cases have not specifically addressed the issue of juvenile waiver of right to counsel. She said other courts applied a “totality of circumstances” test laid down in an early adult case which has been applied to juveniles. Senator James noted the adult right to counsel is under the Sixth Amendment. Professor Berkheiser agreed, and said the juvenile right to counsel comes through the Fourteenth Amendment. She said fundamental fairness was reflected In re Gault, which is not the same as the Sixth Amendment right. It is a right to counsel only because the United States Supreme Court has determined it is essential to fundamental fairness for children to have a right to counsel.
Reiterating, Senator James commented, if the language “unless waived” is removed, it will not change anything about waiver. He suggested a section of law say, “No waiver by juvenile in such proceedings regarding a right to counsel is valid unless x, y, and z, takes place.” Senator James said other than there being some sort of legislative history because the language was taken out of the statute, the Legislature clearly is not able to prevent a person from waiving their rights. He reflected if a person wants to waive his/her rights and testify against himself/herself, if a person does not want a lawyer, he/she does not have to take a lawyer. It would be greater protection for juveniles should the law say no waiver is valid unless . . .
Responding, Professor Berkheiser said, “Absolutely.” She emphasized the importance of having the statute say, in the opening paragraph, that he/she is entitled to be represented at all stages of the proceedings. The professor suggested not placing the waiver right in the first section of the statute, which spells out the entitlement to it. She recommended another provision that says rights may be waived under certain circumstances, and then spell out the requirements for what judges must do to permit a waiver. The professor speculated most juveniles are not able to make a knowing, intelligent, and voluntary waiver, although they may do so, and much is required from the court in order to do it. She said it makes sense to have something about waiver in the statute if it is going to be permitted. Professor Berkheiser said she expressed uncertainty whether waiver of rights should be statutorily mandated at the time the legislation was proposed. She pointed out many counties are doing fine, and suggested, perhaps the issue would be more appropriately handled by a rule. She said if it is appropriate to have it in the statute, and it is spelled out for everyone across the state, she would not oppose it.
Senator James commented, this is a very controlled proceeding where a juvenile is adjudicated delinquent or in need of supervision; therefore, a procedure could be set out for waiver of rights. He said most situations arise when Miranda Rights are given and a person is told he/she has a right to counsel, he/she does not have to say anything until there is a chance to consult a lawyer, or he/she can waive his/her rights. At that point, the person can say he was under duress, did not understand, or there was a language barrier; however, none of that pertains in this case. Professor Berkheiser agreed A.B. 380 does not pertain to anything occurring outside the courtroom. Senator James affirmed the judge should be able to go through a litany of things, whatever they may be. The professor said juveniles are not first afforded counsel and then asked to waive, rather, they are, at present, not given any counsel and told: “You have a right to be represented by a lawyer. You have a right to have a lawyer appointed if you cannot afford one. Do you want a lawyer?” She said this is what happens in juvenile court among the hearing masters in Clark County.
Professor Berkheiser said, “What is the answer to that?” She pointed out there is nothing in the procedure informing a juvenile why he/she should have a lawyer, which only his lawyer can do. In addition, there is nothing that ascertains whether or not the child has any knowledge of what it is all about. The professor suggested “flipping” the process and, instead of presuming the juvenile must ask for a lawyer, provide him/her a lawyer. Then allow him/her to waive the lawyer after thorough questioning and a determination whether there is a voluntary, knowing, and intelligent waiver of the right to counsel.
Senator James asked whether a person had to have a lawyer in order to waive a lawyer. Professor Berkheiser answered no, but the waiver has to be knowing, voluntary, and intelligent. She asked, “How can a child waive a right to counsel knowingly, voluntarily, and intelligently, without first being advised by a lawyer of his own, not the judge or the district attorney, no matter how well intended they might be?” Senator James commented the juvenile is supposed to be accompanied by a parent or a representative. In response, the professor said many parents have little or no knowledge of what transpires, and a number of parents have a conflict of interest with their children. She explained the parents just want to get it over with because it is embarrassing and takes up a lot of their time. She remarked the responsibility cannot be put on parents. Professor Berkheiser indicated there are many good parents; however, they are not the cases with which she is concerned.
Ms. Buckley requested the committee to consider the issue of a state social worker waiving a child’s right to counsel. She pointed out every child who enters the juvenile system without a parent is a ward of the state and is appointed a social worker who waives his/her right to have an attorney without being informed of the consequences.
Senator James pondered the interesting fact that a United States Supreme Court case exists giving the right to waive, and, given the unique situation, there has been no other case with adjudication of quasi-criminal offenses against juveniles, as well as no other case that decided how rights could be waived. He declared a child does not have the ability to commit certain crimes because of his/her mental state, yet the child can waive counsel and constitutional rights without knowing “anything about anything.” Professor Berkheiser agreed it was interesting, and indicated she is doing a tenure piece on the whole waiver of right to counsel by juveniles. There is no comprehensive law review article, nor anything written, because there is so little law. The professor pointed out In re Gault does mention in dicta (opinion of a judge which does not embody the resolution or determination of the specific case before the court) that the right could be waived; however, it does not say how. The standard of totality of circumstances has been transported without really examining what it all means from adult to juvenile. Senator James commented totality of circumstances is different for an adult than a child. Professor Berkheiser explained that was because totality of circumstances includes the age of a person, their intelligence, and those sorts of things. She indicated there is such a wide range for an adult, whereas for juveniles there are just a few years. The professor said the situation is unfortunate and she is equally shocked about it.
Senator Care queried when a child makes his/her initial appearance in juvenile court before the hearing master, is there any mention of representation and/or waiver of rights. Professor Berkheiser answered, “Yes.” She explained at the plea hearing the juvenile is advised that he/she has a right to be represented by a lawyer, and a right to have a lawyer appointed and paid for by the state should he/she not be able to afford one. She said the next question is, do you want a lawyer. No other questions are asked. The professor indicated the procedure is stark. If the juvenile is in detention, he is brought to court alone, in shackles, and seated at the counsel table. At the other table are the district attorney, probation officer, and the judge, all of whom are people of good will, but represent state interest. Professor Berkheiser said the child is alone and is asked whether or not he/she wants a lawyer. She emphasized the child does not know whether or not he/she wants a lawyer. The professor indicated she would like to correct the problem and ensure there is a lawyer in the courtroom with whom the child can confer before making a decision to waive his/her rights.
Further, Senator Care asked should A.B. 308 be amended, would the child be entitled to waive his rights to a lawyer at the initial hearing. Professor Berkheiser answered:
If the bill is amended and practices instituted, which can be done either with another provision of this bill or practices instituted that actually ask a series of questions to be sure the child understands what he/she is doing, they can waive the right. If the child indicates he/she has been there before and understands what is happening, then they can say they do not want a lawyer to represent them, and they can go ahead and admit.
Senator Care asked Professor Berkheiser whether she felt a 15-year-old child, when provided an explanation of the function of a lawyer, would comprehend the consequences of waiver. Professor Berkheiser responded, “No.” She stated juveniles have difficulty understanding the consequences and being able to make a knowing, voluntary, and intelligent waiver. The waiver of right to counsel rarely occurs in other jurisdictions, and when judges allowed waiver, three-quarters of the cases were overturned on appeal, and those were cases where individuals later obtained lawyers to challenge their waiver and the consequences thereof. The professor indicated three out of four cases are overturned for invalid waivers, and countless others are never appealed because the child never had a lawyer.
Further, Senator Care postulated, suppose a statutory mechanism is created that says the hearing master must ask “the following” questions before waiver becomes effective. He queried although the child expresses understanding and does not want an attorney, would the judge still be required to determine whether or not the child does, indeed, understand, and refuse his/her waiver of rights if it is determined the child does not understand. Professor Berkheiser indicated the judge could still make that determination, and to their credit, many judges do. She said she had observed circumstances in which the child wanted to plead to something and the hearing master refused to allow the plea, advising the juvenile to consult a lawyer.
In regard to Professor Berkheiser’s comment concerning 75 percent of cases being overturned, Senator Wiener inquired what grounds were used to overturn. In response, the professor said the cases that have been overturned are “all over the board,” which is a problem with the totality-of-circumstances test. She indicated unless there is a very thorough application of the test it “goes out the window.” She said that happens with anything that allows judges to consider many circumstances. However, in most instances, the cases were overturned because not enough factors were considered, and/or other things were not taken into account. The waiver was allowed sans questioning establishing the child had some knowledge and voluntarily waived his/her right, Professor Berkheiser remarked.
Concerning a juvenile’s ability to make the decision, Senator Wiener pointed out 50 to 60 percent of those who become involved with the juvenile-justice system are at one of five levels of fetal alcohol syndrome (FAS), which means they do not have the capability to make decisions, nor to say no when trouble confronts them. The senator indicated those juveniles are followers, not leaders. She wondered whether mental capabilities may be one of the reasons the cases were overturned. Professor Berkheiser answered, absolutely, mental capabilities are a large part of the issue. She expressed surprise that 50 to 60 percent of juveniles would be at some level of FAS, but she was not surprised they enter the system disabled. The professor indicated many reasons for delinquency are associated with the inability to perform acts that other people can accomplish easily, not having a productive life as a teenager, doing poorly in school, not being able to control impulses, and being a follower.
Senator McGinness pointed out the fiscal note is $1.6 million for Clark County and asked whether there were numbers for the rural counties. Professor Berkheiser said her students have spoken with judges and others in some of the rural counties, and found that lawyers are provided, but not in every single case. The sense was that practices in rural counties are closer to Washoe County than Clark County, and, at least there is a more thorough questioning of juveniles about their rights. The professor pointed out it is difficult to contact people with complete information, as well as time limitations. She said it is important to understand what is going on in rural counties, but the sense is that conditions in the rural counties are much better than Clark County, although she was unable to be specific.
Senator Care asked, even if a child has an attorney, would the outcome be any different. He had represented juveniles in contested hearings in juvenile court, and lost every time. The feeling in juvenile court is “guilty until proven innocent.” There is a frame of mind that if a 15-year-old child has been brought into the courtroom he must be guilty of something and must be taught a lesson so he/she is never seen again. Senator Care indicated he had dealt with that psychology with hearing masters and prosecutors and often wondered whether or not it would have made a difference if the juvenile had appeared alone.
Responding, Professor Berkheiser said it was a troubling question. She proclaimed, although it might not make a difference in some cases, in others it makes a profound difference. The professor stated her clinic had a profound impact on some of its clients in obtaining a plea agreement that assured they would receive the kinds of services and treatment needed. However, she said they had some contested hearings, which they lost. Professor Berkheiser indicated they had a hearing for certification of a juvenile to adult court approximately 1 month ago. She said she believed the presentation given by her students saved the child from going to adult court. The professor pointed out the public defenders do a good job; however, there are not enough of them. She said the kind of work the clinic students do is above and beyond what most lawyers are able to do, but the fact is, they can affect lives. Candidly speaking, Professor Berkheiser said national studies have shown, in many instances, children who have counsel appointed receive worse consequences. She said it happened in a lot of systems before judges were accustomed to having lawyers in their courtrooms, and did not want lawyers in their courtrooms. The professor explained that was the way juvenile courts began; however, as times change, that too is changing. Professor Berkheiser pointed out juvenile justice is a quagmire of troubling issues for which there are no easy answers.
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice (NACJ), indicated his position on A.B. 380 has been pushed back toward neutral. He said the NACJ supports the concept of a knowing and intelligent waiver, and a child be provided full benefit of counsel in contested proceedings where he/she is facing rather dire consequences. Mr. Jackson pointed out 10 years ago when he served as juvenile master in Carson City, he developed a very thorough waiver form written in simple language. The form was easily understood by juveniles, and their advocates, whether a parent, a guardian ad litem (a guardian appointed to prosecute or defend a suit on behalf of a party incapacitated by infancy or otherwise), or else a court-appointed special advocate could go over it with them. Thereafter, the juvenile master could go over it with them as well. Mr. Jackson noted the juvenile master in Carson City has improved the form and it has been used in many rural jurisdictions. He said he could not comment on the process in Clark County.
Concluding, Mr. Jackson said he supports the idea that should a waiver be made, it be made after thorough questioning convinces the juvenile master, or a court hearing master, that the child is aware of what he/she is giving up and the consequences that may be faced as a result. Finally, that a counsel be appointed in the appropriate case, Mr. Jackson remarked.
John C. Morrow, Lobbyist, Chief Deputy, Washoe County Public Defender, pointed out there are significant procedural differences in the way counsel is provided between Clark County and Washoe County. Although he had never perused the juvenile system in rural counties, Mr. Morrow said about 1 year ago he took an extensive look at representation for parents and children in family court. He indicated he found family court in rural counties were doing a much better job providing representation to all parties in regard to delinquency, abuse, and neglect proceedings. Mr. Morrow said he was unsure whether or not this “spilled over” into the juvenile system, but he suspected it might. He indicated for years after In re Gault, the Washoe County public defender represented children at detention hearings where a lawyer is present every morning. Although Washoe County does not work on the same scale as Clark County, Mr. Morrow said there is a lawyer to represent children, talk to them, and do what can be done to release them from detention. He pointed out probation officers focus on releasing juveniles from detention. The officers talk with parents, confer with social workers when the child is a ward of the state, and do a good job of attempting to decrease the population of Wittenberg Hall.
Continuing, Mr. Morrow said in the delinquency phase of cases the Washoe County public defender provides a public defender if the juvenile is not represented by private counsel. He said the representation begins when a petition alleging delinquency or being in new supervision is filed, which triggers, as it does in the adult system, an appointment of counsel. Therefore, when juveniles go before a judge or are asked to answer a petition of delinquency or being in need of supervision, they are represented. Mr. Morrow indicated the problem is in a broader reading. He said his understanding of the statute, as it exists, is if a child is alleged to be delinquent, or needing supervision, that was the point where a petition making those allegations is filed. In listening to Professor Berkheiser’s testimony, Mr. Morrow said he got the sense that was the case in Clark County as well.
Senator James asked whether or not Mr. Morrow would support the amendment (Exhibit D) created by Robert W. Teuton, Chief, Juvenile Division, Office of the District Attorney, Clark County. The senator read a part of the amendment: “Section 2. NRS 62.085 is hereby amended by adding a new section: 5. A child who is alleged to be a delinquent or in need of supervision may waive counsel, notwithstanding the provisions of this section, if no petition is filed with the court and the matter is resolved in accordance with NRS 62.128 or 62.129.” Mr. Morrow indicated, the amendment basically corresponds with Washoe County practice; however, to fully validate its practice, if a child is arrested and detained, he/she is entitled to counsel on the issue of whether or not he/she should continue to be detained. He said if representation is mandated at the point a petition is filed, it basically is status quo. Mr. Morrow said the original concern was that “alleged” meant the child is arrested or in any way contacted by law enforcement, which would have a profound impact on Washoe County. Given the context of the testimony and the procedures followed by Washoe County, Mr. Morrow said the change contained in the amendment would have minimal impact.
David S. Gibson, Lobbyist, Clark County, indicated he would defer to Mr. Teuton in regard to the amendment because he no longer works in juvenile court. He noted his concern is with the waiver, and said if a person has the right to counsel it means they can waive, fire, or direct their counsel. Mr. Gibson expressed the opinion that the Legislature should not get into the area of defining what a person can do with that right. He said he was not concerned with the waiver if it is specifically spelled out, and upon reflection, agreed it was probably a good thing. The times he attended juvenile court, Mr. Gibson opined a good job was done explaining the juvenile’s right to counsel. He pointed out if a juvenile is arrested, he/she is alleged to be delinquent. Should the procedure be moved back to a petition being filed it would alleviate some problems, however, it still would not deal with the waiver. Speaking as a parent, Mr. Gibson said there are constitutional issues with saying a parent cannot waive counsel for their child. He confirmed there are other problems with the legislation; however, the bottom line appears to remove the ability to waive counsel, which will have a huge impact.
Senator James agreed the ability to waive counsel cannot be taken away. Mr. Morrow agreed as well, and said there are children and circumstances where there can be a valid, intelligent, and knowing waiver, and stressed that blanket removal of the ability to waive is not a good thing. Senator James stated it is implicit there still be the right to waive, but the amendment makes it clear that should an adversarial petition be filed, the waiver is valid and effective.
Mr. Gibson pointed out the first thing he learned in law school regarding individual rights was not to limit an individual’s right to do something, rather limit government. He said perhaps the way to solve the problem of children being sent to institutions without being afforded counsel is to make appointing counsel mandatory. Mr. Gibson indicated his office believes if someone is going to be detained, they have an absolute right to counsel. Senator James said Mr. Gibson’s suggestion may be implicit in the amendment.
Echoing Professor Berkheiser’s comments about rural counties, and having been a state public defender serving in rural areas, Mr. Jackson said district court judges almost always err on the side of caution by appointing counsel in any kind of juvenile case, whether it was a removal or delinquency proceeding.
Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association, indicated he requested Mr. Teuton to demonstrate his vision of how the system works at present, and how it would work under the various proposed amendments to A.B. 308.
Robert W. Teuton, Chief, Juvenile Division, Office of the District Attorney, Clark County, indicated he has been in his present capacity for approximately 8 years, and the juvenile system for 20 years. He submitted two memorandums containing amendments. He pointed out, the first amendment had been agreed upon by all players, including Professor Berkheiser, Assemblywoman Tiffany, Assemblywoman Buckley, and himself. Mr. Teuton explained, the first amendment (Exhibit D) would make explicit that the provisions of NRS 62.085, dealing with the appointment and waiver of counsel, does not apply to probation intake matters in which a petition has not been filed. Mr. Teuton said it would have a “tremendous” impact in Clark County where approximately 12,000 juvenile matters were resolved last year at probation intake. He was uncertain whether Clark County could incur the cost should counsel be mandatory at that proceeding.
Moving on to the second memorandum (Exhibit E), Mr. Teuton said procedurally, when a juvenile denies an offense or is charged with a gross-misdemeanor felony, the case goes to the district attorney’s office, a petition is prepared and filed, and a plea hearing set. A copy of the petition given to the juvenile, to be read before the plea hearing, has a “blue sheet” attached to it, which is a statement of rights. The typical plea canvas includes a question as to whether or not the juvenile has read the “blue sheet” (statement of rights), as well as whether or not they wish to retain an attorney or be appointed one if they cannot afford it. Mr. Teuton indicated the statement of rights may not contain as much detail as some individuals would like, and it may not explain in great detail the consequences of an admission; however, it is an attempt to advise juveniles of their rights.
Continuing, Mr. Teuton said he perused the number of juveniles that have been processed in Clark County since 1970, when he caused a program to be run. He stated petitions have been filed against approximately 51,000 juveniles since 1970. Mr. Teuton said approximately 84 percent of the juveniles never returned after a second petition had been filed, 54 percent of the juveniles never returned after a first petition was filed. Unfortunately, generally speaking, the juvenile system works much like the adult system in terms of increasing consequences, not necessarily based upon the needs of the youth, but based upon the youth’s adjudication history. Therefore, a first petition will be resolved informally with an ultimate dismissal, a second petition will be formal probation, a third petition will be intensive supervision, and not until the fourth or fifth petition will there be commitment. Mr. Teuton said, basically, the United States Supreme Court states adults are entitled to counsel in any situation where the possible punishment is incarceration in excess of 6 months. However, the constitutional right to counsel is never reached in the juvenile system when commitment to a training facility is not done until the fifth or sixth petition. He indicated if the issue is in regard to the unintended consequences of allowing a juvenile to plead or admit an offense without counsel, he suggested addressing those unintended consequences without incurring a $2.1 million price tag, which would be the case in Clark County.
Senator James questioned whether the amendments were alternative or additional amendments. Mr. Teuton answered he set the amendments forth separately because there is agreement on the first one, which makes it explicit that the right to counsel does not apply. Asked whether the first amendment is implicit in the second, Mr. Teuton clarified counsel is not required to be made available on misdemeanor offenses at intake. He agreed with, and expressed concern about, Ms. Buckley’s comment regarding youths being committed to facilities without an attorney. He proclaimed it outrageous and said it should never happen, although he knows why it happens and is unsure whether an attorney would make any difference.
Continuing, in regard to his second proposed amendment (Exhibit E) on which there is disagreement, Mr. Teuton explained mandatory counsel would be limited to situations in which the court is likely to commit to an institution. He further explained at the plea hearing, if the state is going to seek incarceration in excess of 6 months, which is also the adult standard for right to counsel, then the court must be advised to appoint counsel. If the court, on its own motion, thinks it may commit, then the court must appoint counsel. Mr. Teuton stated it would be enforced by saying if counsel is not representing the juvenile, the court may not commit to an institution. He suggested restricting their power based upon whether or not they have an attorney.
Senator James queried whether there might be a middle ground in all cases, that other than the first proposed amendment, any waiver must be knowing and intelligent based upon some sort of standard. Mr. Teuton agreed and speculated that everyone would agree it could be accomplished by either legislation or court rule.
Further, Mr. Teuton expressed concern regarding balancing benefits versus detriments and cost. He said to implement counsel in all these proceedings would cost Clark County $2.1 million, and would cost $100,000 in Douglas County. He pointed out if there was an unlimited pie he would say, “Great, let’s go for it.” However, the pie is restricted and there are more cuts and more money going different ways. Mr. Teuton stressed the $2.1 million will come from someplace and he would not like to see such emphasis placed on process issues at the expense of rehabilitation and treatment, which is a possibility.
In the interest of time, Senator James requested Mr. Teuton work with the sponsors of A.B. 308, and others, to reach a solution. He remarked the disagreement appears to be where consequences increase and whether or not the juvenile is required to have counsel. In addition, in all those kinds of cases, the waiver must have vis indicia (circumstances which point to the existence of a given fact as probable, but not certain) of a knowing and intelligent decision by the child or his/her parents.
Mr. Graham indicated he would work with the parties to create a good bill.
Gemma Greene Waldron, Lobbyist, Washoe County District Attorney’s Office, indicated she had been in contact with the rural district attorneys, some of whom file a petition on everything, whether they intend to defer the child out of the system or not. She pointed out they were very concerned. Ms. Waldron indicated she would work with all parties to address the concerns.
Andrew A. List, Lobbyist, Nevada Association of Counties, indicated he has been in contact with some of the rural district attorneys, and aside from the philosophical arguments, they are concerned with the cost of A.B. 308 and its impact on the counties. By way of anecdote, Mr. List said he spoke with the district attorney in Ely, where a party was broken up and 16 juveniles were arrested. Under A.B. 308, every single juvenile would be entitled to a separate attorney. He pointed out most of the rural counties do not have an attorney pool large enough to fulfill that need. Mr. List agreed with the proposed amendment to define a knowing waiver. Senator James commented the first proposed amendment would take care of the consequences of such a party. In conclusion, Mr. List said he would not support A.B. 308, as written, without the amendment.
Benjamin J. Blinn, Lobbyist, submitted the following comments:
My concern is, as one proponent of liberty and justice, liberty is never cheap, freedom is never cheap, rights are never cheap. There are a lot of attorneys who have your ethics that do pro bono work. I hear here, it costs too much, it costs too much, to preserve the flag and the ethics of those things. When we are dealing with our children on the juvenile level, especially when we find today so many are being tried as adults and we need to safeguard the rights that the Constitution guaranteed, and we cannot project whether someone is going to do time, or what, because that authority belongs with the law.
I think the pro bono idea to defray some of these costs, rather than to say we had 16 people arrested at a party or whatever, would allow a lot of attorneys who are supposed to do pro bono work who do not. It will open some avenues where maybe they can help some children and be more compassionate on that level, and have mercy on that level, on the rights of man. So, forget the cost, that is something we have to work out because we had that built in with the pro bono system anyhow.
Many attorneys are soft at trying to help children before they become hardened criminals and wind up in the penitentiary and places like that. I would say this is a good bill. I see a Republican lawyer on it here, Assemblyman Brower, and some of the rest of them who have your mind and ethics also. I would say work out the costs with pro bono.
Stephanie Licht, Lobbyist, Elko County Board of Commissioners, reported the Elko County District Attorney contacted her regarding the item under discussion. She said they could follow up with the pro bono part, which would help in the rural counties. The district attorney expressed concern about the cost on small counties, Ms. Licht remarked.
James J. Jackson, Lobbyist, Nevada Attorneys for Criminal Justice, submitted the “Rights of Juvenile Court” form (Exhibit F) used in Carson City. Senator James expressed thanks and requested Mr. Jackson work with the parties creating the proposed amendment to A.B. 308.
Senator James closed the hearing on A.B. 308 and opened the hearing on Assembly Bill 294.
ASSEMBLY BILL 294: Revises provisions pertaining to sealing of juvenile records. (BDR 5-690)
Assemblyman Douglas (Doug) A. Bache, Clark County Assembly District No. 11, indicated the goal of A.B. 294 is not to seal the records of juveniles involved in violent felonies, nonviolent felonies, misdemeanors, or lesser crimes, at age 24, and seal the records at age 21, if the person has not offended since the age of 18. Assemblyman Bache added an amendment was suggested by Mr. Teuton to better accomplish the goal of A.B. 294.
Robert W. Teuton, Chief, Juvenile Division, Office of the District Attorney, Clark County, explained A.B. 294 basically does two things. Under existing law, sealing juvenile records occurs at age 24, with the exception of sex offenders. He said for a sex offender’s juvenile record to be sealed, juvenile probation officers must not only peruse the juvenile record, but ascertain whether the juvenile has been convicted of a Category A or B felony prior to their twenty-fourth birthday in the adult system. Implementation has been difficult due to accessing adult records to determine whether or not sealing is possible. Therefore, Mr. Teuton said, the three primary, most serious sex offenses, including battery with intent to commit sexual assault, lewdness with a child, and an act involving the use or threatened use of force or violence, may never be sealed. That is to say, if a juvenile has other adjudications, the record may be sealed; however, if there has been adjudication for one of those sexual offenses, or adjudication for any felony offense involving force or violence against the victim, those particular offenses can never be sealed. Mr. Teuton indicated rather than waiting until age 24 for automatic sealing of records, the records would automatically be sealed at age 21.
Continuing, Mr. Teuton pointed out if the three specific and one general serious offenses are never sealed, it means the juvenile record will never be sealed. However, it must be remembered, juvenile records are themselves confidential and inaccessible to the public. Therefore, Mr. Teuton said, “We are not throwing the baby out with the bath water.” He explained if a juvenile has been adjudicated for one of those particular offenses, if it comes into the adult system at age 30, the fact of the adjudication would be known to the adult sentencing judge. Under current law, the adult sentencing judge cannot access those records once the individual turns age 24. An attempt was made to balance public-safety issues with preserving the confidentiality issues of juveniles, Mr. Teuton said.
Senator Care broached a scenario of a 15-year-old who is adjudicated guilty of battery with intent to commit sexual assault, and the records are not sealed. The juvenile is arrested on the same charge at the age of 23 and goes to trial on the second offense. The senator inquired whether or not the first conviction would count as the first offense, and the second arrest would be the second offense, and not the first offense.
Responding, Mr. Teuton said in spite of referring to juvenile matters as being felonies, gross misdemeanors, or misdemeanors, in point of law, they are all classified delinquent offenses. In terms of adult enhancement sentencing, the judge refers to prior convictions, not prior adjudications. The judge refers to convictions for crimes, not delinquent conduct. Therefore, if Senator Care’s question referred to an enhancement issue, Mr. Teuton declared the answer is, “No.” It is a factor, like any other prior record, that the sentencing judge could utilize in determining the length of the sentence in the adult system.
Senator Wiener asked the intent in singling out the three particular sexual offenses of, battery with intent to commit sexual assault, lewdness with a child, and an act involving the use or threatened use of force or violence.
Answering, Assemblyman Bache pointed out, throughout his years as a teacher, he had seen a number of violent students in middle school, which at that particular age is a precursor to becoming a violent offender as an adult. He said he deemed it appropriate the information be available in the adult record in order to demonstrate it was not the first time such behavior had occurred. However, in regard to nonviolent crimes, primarily some sort of drug offense, Assemblyman Bache said should there be no problem between age 18 and 21, the records would be automatically sealed. It would ease the person’s transition into the adult work force, Assemblyman Bache remarked.
Senator Wiener expressed concern that in future legislative sessions more and more offenses would be removed culminating in no records being sealed. She said she had reservations regarding what door is opening and what precedent may be set for the future.
Mr. Teuton expressed appreciation for Senator Wiener’s concerns. He indicated the three specific sex offenses were included because they were already in prior legislation and should be singled out and not sealable should certain conditions not be met. Mr. Teuton said he shared the senator’s concerns regarding a probation officer setting forth a list of crimes that can never be sealed. He said it is possible to address the issue by saying everything is automatically sealed at age 21 for “these offenses,” and “those offenses” may be sealed at age 35 on petition of the individual. Mr. Teuton noted once males turn 30 years of age their tendency to commit crimes drops drastically; therefore, a 10-year window is being addressed for community protection.
Regarding a 17-year-old who is adjudicated guilty of one of the unsealable offenses, Senator Care inquired what he/she would put on a job application asking whether he/she had ever been convicted of a felony. Mr. Teuton said, “If he knows what he is doing, he would say, no.” He explained as long as the conviction is in the juvenile system, it is still classified a delinquent act. He said in spite of the intent to keep records confidential, many employers, the military, and other individuals, are requiring a child to obtain their records. Therefore, records are released to children which is circumvention of the intent to maintain confidentiality in order that it does not impact that child in later years. Mr. Teuton suggested perhaps addressing those roundabout ways of accessing juvenile records through a child, at some future time. He agreed the purpose of the system is to rehabilitate which cannot be accomplished if everyone is finding ways to work around the system.
Senator Care indicated he was told by a police officer in the Las Vegas Metropolitan Police Department (METRO), in regard to a juvenile offender, that the computer in the police vehicle will show “no entry,” as opposed to “no record found,” which is a subtle way to ascertain whether or not there has been a subsequent offense as a juvenile. Mr. Teuton pointed out although the officer can ascertain whether the juvenile has a record, it cannot be ascertained whether he/she has been convicted. In that event, the computer will read, “data not authorized as terminal,” and then the assumption can be made it was a delinquent act.
Scott Cook, Chief Juvenile Probation Officer, Douglas County, indicated he supports A.B. 294, but suggested it could be improved. Referring to section 3, subsection 3, of A.B. 294, Mr. Cook recommended a provision that, after a specified period of time, a person could petition the court, and subsequent to a hearing the records could be sealed. To keep a record open for a person’s entire life for a juvenile offense, no matter how horrific, goes against the philosophy of juvenile court. If a person can convince the court that he/she has been rehabilitated, and the court agrees there is little likelihood of reoffending, the person should be afforded the honor of having the record sealed.
Leonard Pugh, Assistant Director, Department of Juvenile Services, Washoe County, agreed with Mr. Cook’s comments. He said there might be juveniles who commit an act at the age of 13 or 14, and if after 10 years they have proven no propensity to commit that type of offense again, it should not follow them the remainder of their lives. Although lip service has been given to juvenile records remaining confidential, Mr. Pugh indicated the military and others have phrased applications requiring a person to provide records. Consequently, the confidentiality law is bypassed and those individuals are precluded from participating in employment and/or military opportunities. He noted after that period of time the person does not pose a threat any longer. Mr. Pugh suggested constructing the language to limit it to court proceedings.
Senator James said both points were well taken and echoed Senator Wiener’s concerns as well. He indicated an amendment would be appropriate to deal with the unintended consequences of making it impossible for a person to be relieved of their criminal label. Senator James appointed Senator Wiener a subcommittee of one to create an appropriate amendment. He explained Senator Wiener has worked on, written books about, and is concerned with juvenile justice issues and would be able to come up with a fine recommendation for the committee. Mr. Pugh indicated he welcomed the opportunity to work with Senator Wiener on the subject.
David S. Gibson, Lobbyist, Clark County, indicated he agreed with the aforementioned comments and offered his help to craft the language to include that type of thought and policy process.
John C. Morrow, Lobbyist, Chief Deputy, Washoe County Public Defender, indicated the points brought up by Messrs. Pugh and Gibson were issues of which he had been unaware, and offered his help to accomplish the goal set by the subcommittee.
Gary Hunter, Reverend, Greater Saint James Baptist Church, and President, Pastors and Ministers Conference of Las Vegas, testifying from Las Vegas, indicated he wished to speak on A.B. 308.
ASSEMBLY BILL 308: Revises provisions concerning waiver by juveniles of right to counsel. (BDR 5-464)
As a pastor and a law student, Reverend Hunter expressed concern that many youth and their parents do not understand the law. He indicated he had been to juvenile, as well as adult courts, several times. The reverend said it is absurd that in 2001 there is no need for amendment of laws because some laws have been overridden by judges, challenged by the Supreme Court, as well as organizations such as the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU). He pointed out he was present as a community activist to voice the opinion that waiver rights, not understood, are as good as money never received. Reverend Hunter stated legislators must be cognizant of their constituents who do not have money to hire a lawyer. He pointed out 78 percent of juveniles arrested are below the sixth grade reading level; 65 percent have had some sort of substance abuse problem; 20 to 30 percent have had some type of criminal allegation against them prior to the arrest; 45 to 70 percent fluctuate between being abused in some form of harassment or molestation. The reverend said it is an insult to parents and children to expect them to become lawyers overnight and understand judiciary procedure.
Continuing, Reverend Hunter said from a community and civil standpoint, it is important for legislators to understand that all people are not the same. He pointed out people like the legislators are blessed to know the law and can cover themselves on its practices. The reverend called attention to a young man who was killed 2 weeks ago in Los Angeles, who had been taught to raise his hands and not move, and is dead today because an officer did not think before shooting. He stressed these issues can be life or death based on the fact that juveniles are put into the system because they are not aware they have the right to legal counsel.
Calling attention to section 1, subsection 2, paragraph (a), of A.B. 308, “The parents of that child shall pay the reasonable fees and expenses of the attorney unless they are indigent,” Reverend Hunter suggested a stipulation that if a person is indigent and reasonable fees are not collectible, there should be some method to repay the system by way of community service. In reference to section 1, subsection 3, of A.B. 308, “In no case may an attorney be appointed for him unless the court makes written findings,” the reverend pointed out, sometimes written findings in a court hearing are not applicable to the case due to the time constraints caused by an overburdened court system. He stated it is unfair to a juvenile who does not have legal counsel. Reverend Hunter indicated he dealt with a highly visible case about a month ago in which the parents did not understand anything. He explained their child was alleged to have been caught in a criminal act which put the family under investigation.
In conclusion, Reverend Hunter appealed to the committee to view the issues from a human perspective, as well as in the legal context. He reiterated 78 percent of juveniles prosecuted cannot read, and 65 percent have substance abuse problems. The reverend stressed the law should clearly state that a guardian understand, or be given full disclosure of, the penalties and/or suffering that may occur by waiving the juvenile’s rights. He suggested if a person cannot afford a lawyer the United States Congress or the United States Attorney General fund legal regress that could occur without waiver rights.
Senator James closed the hearing on A.B. 294 and opened the hearing on A.B. 586.
ASSEMBLY BILL 586: Revises provisions governing program to assist victims of certain crimes in maintaining confidential addresses. (BDR 16-609)
Senator James explained the confidential address program was created by a bill he sponsored in the 1995 Legislative Session.
Susan Morandi, Deputy Secretary of State, Elections Division, Office of the Secretary of State, indicated the Child Assault Prevention Project Washoe County (CAP) is administered through the election division through the Office of the Secretary of State. She explained the CAP ended up in the election division because it deals with motor registration forms, and the election division deals with everything the other divisions do not want. Ms. Morandi indicated the CAP program administrator, currently working with Assemblywoman Koivisto, administers the program on a daily basis.
Continuing, Ms. Morandi explained the CAP was sponsored by Senator James in 1995 and allows for domestic violence victims to attain a fictitious address through the secretary of state’s office. She pointed out the fictitious address is the only address that is accessible to the public. Anyone attempting to locate the participant would only have access to the fictitious address and the actual physical location would not be given out. Ms. Morandi said A.B. 586 would include sexual-assault victims into the program. Currently, for domestic violence, a relationship needs to exist between boyfriend/girlfriend, family member, and/or household member. She indicated the inclusion of victims of sexual assault in A.B. 586 would afford individuals, who have been sexually assaulted by a person they do not know, to be included in the CAP and be able to have their address kept confidential.
Further, Ms. Morandi pointed out the state of Washington was the first state to develop and administer a confidential-address program, and the Nevada CAP is modeled upon it. She said, currently, Washington has approximately 1100 participants whereas, in Nevada there are 23 participants. In 1998, Washington enacted a similar provision adding victims of sexual assault, and since that time there has been only a 1 percent increase in participants.
Clarifying there are only 23 participants in the Nevada CAP, Senator James remarked it was interesting and belied the “Chicken Little/sky is falling” opposition testimony received in 1995. At that time the opposition said the program would fill up with many people and the cost would be prohibitive. He explained the bill was waylaid in the Assembly Committee on Ways and Means because of all the discussion regarding the cost, and now there are only 23 people in the program.
In response, Ms. Morandi said including the additional group would cost very little, if nothing at all.
Senator James asked the purpose of section 4, subsection 2, of A.B. 586, “The secretary of state shall not make any records, containing the name, confidential address or fictitious address of a participant available for inspection or copying . . . ” Answering, Ms. Morandi explained previously the subsection was left out, causing the Election Division to receive questions and inquiries about the fictitious address. She said the subsection clarifies how the program is administered and what is, and is not, allowed to be given out.
Susan J. Meuschke, Lobbyist, Nevada Network Against Domestic Violence, indicated CAP is a very important program applicable in very limited circumstances, is not for everyone, and is not being abused. She pointed out the secretary of state’s office has been contacted in regard to additional training, staff turnover, and so forth, to get more people involved.
Senator James suggested the program be expanded and publicized to reach individuals who need it to prevent further violence. Ms. Meuschke noted an attempt had been made to implement CAP slowly to ensure there would be no difficult problems. She agreed more outreach is needed, but said it must be understood that CAP is not a program to be used in an inappropriate way. Ms. Meuschke expressed support for adding sexual-assault victims into the program, and may consider the addition of stalking victims at some point in time. Senator James said her point was well taken.
Senator James closed the hearing on A.B. 586.
There being no further business to come before the committee, Senator James adjourned the hearing at 10:30 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: