MINUTES OF THE

SENATE Committee on Judiciary

 

Seventy-First Session

March 16, 2001

 

 

The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:30 a.m., on Friday, March 16, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada.  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 Maurice Washington

Senator Dina Titus

Senator Valerie Wiener

Senator Terry Care

 

STAFF MEMBERS PRESENT:

 

Bradley A. Wilkinson, Committee Counsel

Allison Combs, Committee Policy Analyst

Carolyn Allfree, Committee Secretary

 

OTHERS PRESENT:

 

Kermit Humphries, Correctional Program Specialist, Community Corrections Division, National Institute of Corrections, United States Department of Justice

Richard L. Masters, Special Counsel, The Council of State Governments

Clay Thomas, Deputy Chief, Division of Parole and Probation, Department of Motor Vehicles and Public Safety

 

Chairman James explained Bill Draft Request (BDR) 15-465, which came from the Nevada District Attorneys’ Association, and requested a motion for its introduction. 

 

BILL DRAFT REQUEST 15-465:  Clarifies statutes concerning murder.  (Later introduced as Senate Bill 375.)

 

SENATOR WASHINGTON MOVED TO INTRODUCE BDR 15-465.

 

SENATOR CARE SECONDED THE MOTION.

 

THE MOTION CARRIED.  (SENATOR TITUS WAS ABSENT FOR THE VOTE.)

 

*****

 

Chairman James opened the hearing on Senate Bill (S.B.) 194, and asked Senator Washington to explain it.

 

SENATE BILL 194:  Makes changes pertaining to interstate compacts for supervision of offenders. (BDR 16-107)

 

Senator Maurice E. Washington, Washoe County Senatorial District No. 2, read the following statement to explain the “Interstate Compact for Adult Offender Supervision (Updated: March 12, 2001)” (Exhibit C):

 

The “Interstate Compact for Adult Offender Supervision” would amend the original compact, which was created in 1937 and has never been changed.  The original compact was created to govern the travel, movement, and supervision of adult probationers and parolees from sending states, where they have been convicted of a crime, to a receiving state.  At that time, only a few thousand offenders were being supervised in states other than where they were sentenced.  There are over 4 million offenders on probation and parole in the United States today; 250,000 will cross the state lines this year.  Offenders who travel from state to state are currently overseen by 3,285 different local probation officers who operate within 860 different agencies.  This fragmented system makes it difficult and impossible to adequately account for all offenders.

 

As you may be aware, interstate compacts are agreements between two or more states that bind them to the compact provisions, subject to substantive principles of contract law, and are protected by the constitutional provisions against a law that impairs the obligations of that contract.  This means that the compacting states are bound to observe the terms of the agreement, if those terms are inconsistent with other state laws.  The compact has the force and the effect of statutory law; the compact takes precedence over conflicting state laws . . .

 

The interstate compact for adult offenders must be passed by 35 jurisdictions, states and/or territories, before it may . . . take effect.  The compact is currently in place and ready to go to work by July 1, 2001 . . . or upon the passage of the 35^th state . . . [The compact] was passed and signed into law by 14 states:  Arkansas, California, Colorado, Connecticut, Hawaii, Idaho, Kentucky, Missouri, Montana, Oklahoma, South Dakota, Utah, Vermont, and Wyoming.  During the 2001 legislative session, 23 states are proposing legislation which would enact the compact . . .

 

Senator Washington then gave an overview of the revised interstate compact proposed in S.B. 194, article by article.

 

Kermit Humphries, Correctional Program Specialist, Community Corrections Division, National Institute of Corrections (NIC), United States Department of Justice, noted Community Corrections is a federal agency providing training and technical assistance to state and local governments in the area of corrections.  He directed the committee’s attention to a chart in Exhibit C explaining how the legislation proposed in S.B. 194 was developed.  Mr. Humphries said his agency realized it would need assistance to properly introduce the needed legislation, and entered into a cooperative agreement with The Council of State Governments.

 

Mr. Humphries said he was involved in probation and parole work in Alaska for 15 years and during his tenure he heard “a lot of horror stories” about states not following the compact.  “The reason for this replacement compact is to remedy that problem . . . The states that are following the rules should expect that other states, likewise, follow the rules,” he said.  He explained the existing compact, now over 30 years old, does not provide an enforcement mechanism.

 

Chairman James asked if the 35-state requirement for passage of the compact is contained in United States Code (U.S.C.), title 4, section 112, the “Crime Control Act.”  Richard L. Masters, Special Counsel, The Council of State Governments, answered, saying, “That is the consent of Congress that was granted originally back in 1937 . . . The drafting committee that came together, made up of existing compact administrators and those that are most familiar with the existing compact, wanted to make sure that . . . we had a sufficient number of states that we could credibly act for the majority . . .”  Mr. Masters said it is a self-imposed number.  The original draft sent out for review required only 26 states, and the feedback they received pointed toward a need for a 50-state compact, he said.

 

Mr. Humphries resumed his remarks, stating that 3 years ago, it was estimated over 250,000 adult probationers and parolees were in states other than where they were sentenced.  A wide system exists with no meaningful regulation, “and that is the real reason for this . . . The bill really gets to the establishment of . . . the legal authority and the process for managing the offender population,” he said.

 

Mr. Masters said article I, section 10, clause 3, of the Constitution of the United States authorizes states to enter into agreements for management of problems such as this “that transcend the boundaries of any particular state, but are matters that the states would like to retain control of, as opposed to the central government taking it over.”  At the time this revised compact was being considered, a bill was pending in Congress which would have preempted the states’ authority, he said.  Mr. Masters provided a chart to the committee that demonstrated Nevada’s membership in 11 interstate compacts having a majority of the states as members, and 4 regional compacts (Exhibit D).

 

Referring to Mr. Humphries’ remarks that enforcement was a problem under the existing compact, Mr. Masters said the compact is administered by the Probation and Parole Compact Administrators Association, which had “substantial” input into this process.  He said one of the chief complaints they had was that the existing compact is impossible to enforce, in practical terms.  The proposed new compact has a graduated series of enforcement tools, he said.  He said the philosophy is to encourage cooperation between the states, with compliance carried out at the “lowest level of compulsion necessary.”

 

Chairman James asked which states are refusing to comply with the current compact, and whether they are states that have also not yet enacted the new compact.  Senator Washington responded, “The large state to the west of us” has many jurisdictions, made up of counties, that oversee parole and probation.  Offenders cross the state line, and it is difficult to supervise the offenders because of so many jurisdictions, he said.

 

Senator Care asked Mr. Masters about the oversight juxtaposed with the enforcement.  The language in S.B. 194, he said, is mandatory.  Referring to Article VIII, section A, subsection (2), he read, “The courts and executive agencies in each compacting state ‘shall’ enforce this compact . . .”  He asked what would happen if a court refused to enforce a compact entered into by the Legislature.  Mr. Masters responded that a large body of federal law governs such compacts, citing a 1950 United States Supreme Court case, Dyer v. Sims, 341 U.S. 22 (argued December 5, 1950; decided April 9, 1951) that set a precedent for the enforceability of such contracts.

 

Senator Care asked if a state, through another act of the Legislature, can withdraw from the compact, and Mr. Masters replied it was certainly an option.  Referring to S.B. 194, Article XIII, section B, subsection (6), he stated a state’s constitutional prerogatives take precedence over the compact.

 

Senator Care asked what discretion a receiving state has to refuse an offender, and Mr. Masters answered no state has an obligation to provide probation or parole to any offender, but once the decision is made there are certain criteria and rules that apply regarding when an offender may move and what qualifications the offender must meet.  He said problems faced in enforcing the criteria are what have led to this proposed amendment.

 

Senator Wiener asked if Nevada needs to vote the new compact “either up or down,” and Mr. Masters responded there is room for states to modify it for legislative or constitutional idiosyncrasies.  The compact is essentially a legal instrument interpreted under contract law principles, he said.  Senator Washington added S.B. 194 was crafted by Bradley A. Wilkinson, Committee Counsel, and Allison Combs, Committee Policy Analyst, and reflects current Nevada statutes.  Senator Wiener asked if S.B. 194, then, is distinguished from the compact that is presented to other states.  Mr. Masters explained the State Council is the most frequently discussed issue, and the intent was to leave flexibility for the states in that area.

 

Senator Care, reading from Article IV, subsection (2), of S.B. 194, noted that the Interstate Commission has the powers “to promulgate rules which shall have the force and effect of statutory law . . . to the extent and in the manner provided in this compact.”  Mr. Masters said if the compact conflicts with a restriction on the state’s authority, the state provision would prevail.  Chairman James interposed with his concern regarding wording giving the Interstate Commission the powers “to promulgate rules having the force and effect of statutory law and . . . be binding in the compacting states . . .”  He saw no similar provision in the existing compact, and was reluctant to approve something that would give “some extraterritorial body the ability to pass rules which have the effect of statutory law in Nevada.”  He questioned why that is even necessary; in terms of the extradition process, the current compact was working well.  “This seems like a really broad response to a problem that is apparently occurring in some other states,” he said, and asked rhetorically, “Who is going to make these laws?”  Membership of the Interstate Commission is dictated by state councils, and a state council is made up of one legislator and a compact administrator.  The compact administrator, not the legislator, is the commissioner.  “And those people can get together and they can pass laws which have the force and effect of law in Nevada, and that I am very concerned about,” he said.

 

Mr. Masters responded the current compact allows for the selection of a commissioner to the Interstate Commission, and read from section 5 on page 2 of a 2-page document (“The Interstate Compact for the Supervision of Parolees and Probationers:  A Compact,” original, dated circa 1937), which states, “The governor of each state may designate an officer who, acting jointly with like officers of other contracting states . . . shall promulgate such rules . . . deemed necessary to more effectively carry out the terms of this compact." 

 

“Where does it say that it . . . has the force and effect of statutory law in Nevada?”  Chairman James asked.  Mr. Masters said the United States Supreme Court has so interpreted a compact.  “A compact,” Chairman James interjected, “but it doesn’t say anything about any kind of rules . . . having the force and effect of statutory law.  And . . . they do not; if they did, then there would not be this problem of enforcing the existing compact.”  Mr. Masters responded the existing compact does not have a meaningful enforcement tool.  He said, in Sims v. West Virginia [Dyer v. Sims], the U. S. Supreme Court was enforcing a compact involving regulation of pollution that West Virginia did not want to support.  Chairman James said he knew interstate compacts are enforceable; Nevada was a member of several compacts.  He said what bothered him was the rules passed by this proposed compact would have the force and effect of law in Nevada.  “In other words, they bind us, the Legislature; our remedy for that is to withdraw from the compact,” he said.  “The compacts [of which Nevada is a member] are sitting in our statutes; they have been through this legislative process, passed, and signed by the Governor . . . The rules that are promulgated by an agency, where we are essentially delegating legislative power to an extraterritorial agency, have not been through this process.  That is where my concern is,” Chairman James said.  He asked whether legislators in states that have passed the proposed compact have voiced this concern and, if so, how it was addressed.  Mr. Masters said the issue has been raised, but no state, after examining the proposed compact, has determined it is more onerous than having the federal government take over and preempt the process.  Chairman James asked if that is really a “portent,” and Mr. Masters answered it is.  Chairman James replied Nevada at least has elected people who are making laws in Congress.  “This is very scary for me,” he said.

 

Mr. Masters pointed out that the Interstate Commission, under the proposed legislation, would be working in a very limited area, affecting only people who move under supervision from one state to another.  He added, of the 14 states that have already voted on the new compact, including approximately 1,500 legislators, there have been 5 dissenting votes.

 

Chairman James asked, “What if we were to amend this and say . . . rules made by the commission will govern the activities and work of the commission but they will not be effective as statutory law in Nevada unless and until we accept them as that in the Legislature?”  Mr. Masters replied the risk would be that other states might raise the issue that Nevada did not enter into the same agreement, and say, “Your statute does not represent a meeting of the minds . . . for purposes of participation in the compact.”  He said there might be another way to condition it to make it more palatable.  Chairman James asked what provisions in S.B. 194 limit the rule-making effect of the Interstate Commission so that, for example, they could not pass a rule that would have an inordinate fiscal impact on a small state.  Mr. Masters said the provisions of the Administrative Procedures Act, which require publication, public notice, a hearing, opportunity for everybody to be heard, and intervention through the judicial process, are incorporated.  The existing compact has no mechanism, whatsoever, for making rules, he said.

 

Senator Care asked if Nevada would still be a signatory to the old compact if it enacted the new one but deleted Article IV, subsection (2), “and it is not the same compact that everybody else signed.”  Mr. Masters said it would be a signatory to the old compact, at least for a time after 35 states have adopted the new compact, until all 50 states have adopted it.  Mr. Humphries said there is language in the new compact that speaks to cooperation to the greatest extent possible with states that have not passed it.

 

Chairman James asked how the language dictating who can be a member of the Interstate Commission was conceived.  Mr. Masters said the primary purpose was to increase the visibility of the instrument and bring it to the different branches of government in the states, “so . . . input is given to this important mechanism that is . . . protecting the safety of the public.”  He said some states have clerks making decisions regarding who moves from one state to another.  Senator Care asked why Nevada could not choose its own administrator.  Mr. Masters answered, “You can.  The State Council is an advisory body . . . But, again, the primary emphasis is [to] raise the visibility . . . so that within each state an important mechanism that is supervising people that could be dangerous is given the proper level of management and oversight.”

 

Clay Thomas, Deputy Chief, Division of Parole and Probation, Department of Motor Vehicles and Public Safety, said his division supports ratifying the compact as amended in S.B. 194.  He said as of March 1, 2001, the State of Nevada has sent out 2,303 offenders and has received 1,085.  He believes it would be advantageous for Nevada to have a mechanism in place, because Nevada would not want other states to block the opportunity to have offenders go to states that will supervise them, he said.  Mr. Thomas brought to the attention of the committee Article III, subsection (2), of S.B. 194, where, he said, it does not really state who is responsible for appointing individuals to the State Council.  He said his office has contacted four states that have ratified the compact; Wyoming, California, and Idaho allow the governor to make the appointment to the State Council, and the state of Utah has allowed the process to default to the division of parole and probation within its department of corrections, he said.

 

Chairman James said, before the bill can be processed, he would like the concerns addressed that he raised about protecting Nevada from having rules promulgated that would be outside the scope of what the “Interstate Commission for Adult Offender Supervision” needs to do.  He suggested insertion of language to the effect “no rule passed by the commission shall affect substantive criminal laws of the state of Nevada nor [sic] impose a financial burden on the state of Nevada beyond some certain de minimis amount without the approval of the Legislature.”  Mr. Masters commented Colorado has a similar provision.  Chairman James said he would be much more comfortable with something like that.

 

Chairman James closed the hearing on S.B. 194.  There being no further business, the meeting was adjourned at 9:40 a.m.

 

RESPECTFULLY SUBMITTED:

 

 

 

Carolyn Allfree,

Committee Secretary

 

 

APPROVED BY:

 

 

 

                       

Senator Mark A. James, Chairman

 

 

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