MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
February 14, 2003
The Committee on Judiciarywas called to order at 8:05 a.m., on Friday, February 14, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, 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. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Ms. Genie Ohrenschall (excused)
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Julie A. Johnson, Unit Manager, Division of Parole and Probation (P&P), Nevada Department of Public Safety, Carson City
Martin Stepina, Operations Supervisor, Fugitive Apprehension Unit, Division of Parole and Probation, Nevada Department of Public Safety, Carson City
James J. Jackson, Attorney at law, Thorndal, Armstrong, Delk, Balkenbush & Eisinger, Las Vegas, and representing the Nevada Attorneys for Criminal Justice, Las Vegas
Jim Nadeau, J. Nadeau Associates, Reno, and representing the Washoe County Sheriff’s Office, Reno
Tim Kuzanek, Detective, Washoe County Sheriff’s Office, Reno
Bob Roshak, Sergeant, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department, Las Vegas
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney, Reno, and representing the Nevada District Attorneys Association
Chairman Anderson made opening remarks and noted that a quorum was present. He presented two bill draft requests (BDRs) for Committee introduction. The first was BDR 38-689, which was requested by a member to be introduced by the Committee.
ASSEMBLYMAN CONKLIN MOVED FOR COMMITTEE INTRODUCTION OF BDR 38-689.
ASSEMBLYMAN SHERER SECONDED THE MOTION
THE MOTION CARRIED. (Ms. Ohrenschall was absent for the vote.)
Chairman Anderson stated the second BDR was an agency bill from the Administrative Offices of the Courts (AOC) through the Nevada Judges’ Association, BDR 1‑602.
ASSEMBLYMAN GEDDES MOVED FOR COMMITTEE INTRODUCTION OF BDR 1-602.
ASSEMBLYMAN MORTENSON SECONDED THE MOTION
THE MOTION CARRIED. (Ms. Ohrenschall was absent for the vote.)
Chairman Anderson announced he was scheduled to present a bill in the Assembly Committee on Government Affairs. He turned the gavel over to Vice Chairman Oceguera.
Vice Chairman Oceguera opened the hearing on Assembly Bill 18.
Assembly Bill 18: Requires posting of bond by probationers and parolees who request permission to reside in another state. (BDR 14-740)
Julie A. Johnson, Unit Manager, Division of Parole and Probation (P&P), Nevada Department of Public Safety, Carson City, said the primary purpose of A.B. 18 would be to offset the costs incurred by the state in returning offenders who had been allowed to relocate to other states under the rules of the Interstate Compact. There were currently 1,870 offenders residing and being supervised in other states. She noted that many times offenders committed new offenses in those states, were sentenced to prison or jail, or committed technical violations, which necessitated being returned to Nevada as stipulated in the rules of the Interstate Compact. Assembly Bill 18 proposed that the costs would be borne by an offender who committed crimes in Nevada and then requested the privilege of being supervised elsewhere.
Furthermore, Ms. Johnson said the requirement to post a bond demonstrated a personal commitment by the offender to perform better during probation or parole. It might also reduce frivolous requests to transfer to another state. Ms. Johnson called attention to Exhibit C, which included a breakdown of P&P funding spent in fiscal year 2001 for extraditions and an example of savings if bonds had been required for that same period. She pointed out that the bonds would be posted with and maintained by the P&P. The funds would be returned to the offender upon completion of his or her parole or probation minus any victim restitution, Nevada supervision fees, or outstanding court fees.
Martin Stepina, Operations Supervisor, Fugitive Apprehension Unit, Division of Parole and Probation, Nevada Department of Public Safety, Carson City, reported that for fiscal year 2001 the extradition costs exceeded $148,000. Extradition costs dramatically increased for fiscal year 2002; a total of 299 individuals were returned to Nevada, incurring a total cost of $238,563 (Exhibit D). One factor that influenced this rise in costs was the limited number of private providers available to perform extradition for Nevada. Currently, Nevada had contracts with two companies: TransCor, used nationwide, and Tri‑Counties Extradition Services, used in California. Mr. Stepina reported Nevada had reduced the number of extraditions performed because of budgetary concerns. Presently, only those individuals convicted of selected violent crimes, sex offenders, and those who were accepted in other states under the terms of the Interstate Compact had been extradited.
Continuing, Mr. Stepina reported that current extradition costs for fiscal year 2003 to date were approximately $77,481. He opined that the bond process as proposed in A.B. 18 would save a substantial amount. In spite of the fact that parolees and probationers were ordered to pay the costs of extradition, most did not pay. Without a civil confession of judgment, P&P had no method to enforce the collection of those funds.
Vice Chairman Oceguera queried if the parolee or probationer were unable to pay such fees, how that individual would be able to post the bond. Ms. Johnson said the proposed language included a means whereby the Chief P&P Officer or the Parole Board Commissioner could waive the bond in true cases of hardship.
Assemblyman Mortenson asked whether the interstate agreements required Nevada to extradite and reincarcerate an offender for a violation of his parole or probation. Ms. Johnson noted that the wording of the Interstate Compact required that “the sending state shall provide for the return of violators.” At this time, it was more of a “gentlemen’s agreement,” not entirely enforceable. Since it was expected, Nevada complied. Continuing, Ms. Johnson said that Nevada benefited by being allowed to send parolees and probationers out of state at a 2‑to-1 ratio.
Commenting on the 2-to-1 ratio, Assemblyman Horne questioned whether requiring the bond would reduce the number of offenders leaving Nevada, thus increasing the supervision costs. He asked if an estimate had been completed that would show the change in costs. Ms. Johnson said there would always be those who could not afford to pay for the bond and accommodations could be made for those who needed to leave Nevada. Assembly Bill 18 could reduce the number requesting to leave Nevada, provide a “buy-in” towards their supervision, and possibly prevent extradition by encouraging better performance under supervision. Reiterating his question, Mr. Horne asked if the number of offenders under supervision could increase because they were prevented from leaving Nevada. Ms. Johnson agreed it could happen in some cases.
Continuing, Mr. Horne asked why the fee was not assessed when the offender was extradited. Ms. Johnson replied that at that point P&P had already incurred the costs of extradition. As previously noted by Mr. Stepina, she said the courts were ordering the costs of extradition to be repaid, but P&P had no method to enforce those orders. She noted that the actual cost of extradition would exceed the assessment for the bond.
Mr. Stepina interjected that the average cost of extradition had risen substantially in the last year. For fiscal year 2002, the average cost was $795 per offender. In 2003, the cost had risen to $968 per offender. Two factors affected when P&P was advised that an offender was in non‑compliance and needed to be returned to Nevada: the individual had committed a new offense, or the offender had committed enough violations resulting in a request to be returned. He noted that the receiving state made every effort to keep an offender until such case as it lacked the means to force the offender to comply, or more often, the offender committed a new offense. From a financial standpoint, it was difficult to force that offender to pay the bond for extradition when he was in custody and did not have the means to pay.
Assemblyman Brown asked whether most offenders were motivated and would find funds to post the bond. Secondly, he asked if it entailed a cash bond that P&P deposited or was the payment used to purchase a bond of greater value from a surety/bonding company. Ms. Johnson stated, A.B. 18 proposed that P&P would collect a cashier’s check or money order made payable to the P&P and set up an account for that bond, maintain it, and distribute funds upon completion of probation. Asked to reiterate his question, Mr. Brown asked what incidents of hardship were considered. Ms. Johnson replied that when offenders were returning to their home state, family members could usually raise the funds to post the bond; it was similar to posting bail to get out of custody from jail.
Vice Chairman Oceguera asked for an explanation of the bond process. Ms. Johnson said it was not a traditional bond where collateral was surrendered; it was an administrative fee.
Assemblyman Mortenson stated his understanding that Nevada would be the bonding agent. Ms. Johnson said P&P would handle the process; no bonding company would be involved.
Assemblyman Brown said he was familiar with cash bonds where funds deposited were consequently forfeited. If an offender was extradited, he wanted to know if the full fee was assessed against that individual. Ms. Johnson said that any funds exceeding the value of the bond would remain unpaid, unless ordered by the court at reinstatement.
Assemblyman Mortenson asked if any statistics were available regarding the number of offenders residing outside of Nevada and those being extradited. Ms. Johnson said that P&P could provide the number of Nevada offenders residing in other states, and the number extradited could be obtained from Mr. Stepina’s Fugitive Apprehension Unit.
Mr. Stepina reported that the Fugitive Apprehension Unit currently had approximately 3,000 outstanding warrants for those who had violated some provision of their parole or probation. Using fiscal year 2002 as an example, the 299 returned offenders represented 10 percent of those outstanding warrants. Mr. Mortenson opined that the assessed fees (bonds) could totally pay for the extradition program.
Assemblywoman Buckley questioned the provision on page 2, line 31, related to an offender committing a new offense and forfeiting the bond. She noted that without being convicted of that new offense, forfeiting the bond could be a violation of due process. Ms. Johnson said that “committing a new offense,” meant the offender had been convicted of a new offense in that state, had been sentenced to jail or prison, and Nevada had extradited that individual. Ms. Buckley stated that if that was the intent, the language should be amended to include the word “conviction.”
James J. Jackson, attorney at law, appeared on behalf of the Nevada Attorneys for Criminal Justice and spoke in opposition to A.B. 18. Taking into consideration the previous testimony, he stated that the language of the bill required further work because it was too vague. When discussing a bond, it would appear that a performance bond would be purchased. Most offenders were not bondable and no bondsman would want to take that type of risk. Further, if a convicted offender were required to post a cash bond equivalent to the cost of extradition, indigent offenders would be unable to return to their homes. The statistics that suggested Nevada exported twice the number of offenders than were imported was testimonial to the fact that the state had many transient offenders. He opined that preventing those individuals from returning home would be problematic. He stated that A.B. 18 was vague and contained a number of issues that needed to be resolved.
Vice Chairman Oceguera closed the hearing on A.B. 18 and opened the hearing on A.B. 33.
Assembly Bill 33: Provides additional penalty for manufacturing methamphetamines in certain circumstances. (BDR 40-817)
Assemblyman William Horne, District No. 34, Clark County, stated that A.B. 33 imposed an enhanced sentence of 3 to 15 years for manufacturing methamphetamines in a residential area. The legislation was prompted by the inherent dangerous nature and unacceptable risk associated with methamphetamine laboratories (meth labs) for not only the occupants of the dwelling and those in close proximity, but for the first responders. To testify in support of A.B. 33, Mr. Horne introduced:
Mr. Horne said it was general public policy that the health, safety, and welfare of Nevada’s citizens be protected. The neighborhood was the one place where families should be secure. Mr. Horne said A.B. 33 was another tool in the effort to accomplish this.
Assemblyman Conklin asked if it was Mr. Horne’s intent to remove the word “business” from page 1, line 8, of A.B. 33. Mr. Horne replied that he had read that section of the bill and while he recognized the provision made the legislation broad, the distance of 500 feet was adequate. He reported that a meth lab could be operated in a motor home. If such a motor home were parked in a parking lot of a grocery store, for example, it posed a severe risk to others. Referring to the list in Section 1, subsection 1(a), Mr. Conklin voiced his concern that the bill was so broad that it proposed that methamphetamines could not be manufactured anywhere, which was already in the law. If the purpose of A.B. 33 was to enhance the sentencing, why not concentrate on the sentencing. He said, based on his conversations with Jim Nadeau, 95-99 percent of these offenders, when released from prison, return to manufacturing methamphetamines. Mr. Conklin opined that these offenders should not be released from prison.
Mr. Horne stated that, while he concurred with Mr. Conklin’s final assessment, the enhanced penalty would be served consecutively with the current 3- to 15‑year sentence. Thus, the enhanced sentence “doubled” the time to be served; it was more punitive. Mr. Horne said he intended to send a message that if an individual chose to participate in this illegal activity, endangering everyone as he carried out his daily routine, he would receive an enhanced sentence. If that meant the person took his recreational vehicle (RV) out into the desert, that was what he should do.
Assemblyman Mortenson asked what were the hazards associated with the manufacture of methamphetamines. Mr. Horne responded that the experts would be better able to answer that question.
Assemblyman Brown asked for clarification of the language in Section 1, subsection 1, which stated, “where the violation included the manufacturer of any material, compound, mixture, or preparation which contains any quantity of methamphetamine.” This language dealt with the production of methamphetamine rather than with the components of it. Mr. Horne agreed.
Mr. Horne commented that there was a proposed Senate amendment pertaining to the components. He noted that a proposed bill from the last session that dealt with the materials used in the manufacture of methamphetamines had been deemed unconstitutional because it was missing an intent element necessary to determine guilt. The proposed Senate amendment would include a list of general materials used and the necessary intent language.
Assemblyman Brown queried how many forms methamphetamine there were—liquid, powder, and/or solids. Again, Mr. Horne deferred to the experts to answer that question.
Vice Chairman Oceguera commented that A.B. 33 was drafted to provide a deterrent. Based on his bachelors’ degree studies in criminal justice, Mr. Horne said criminals always perform a cost-benefit analysis to determine whether the criminal activity was worth the risk. The deterrent effect would be accomplished through use of the consecutive sentencing. It would not stop all meth labs operating in Nevada, but some individuals might consider taking their operations elsewhere.
Relating personal experience as a firefighter, Vice Chairman Oceguera said he had responded to many meth labs including mobiles and RVs. He said entering a fire that cast a “weird glow” from the kitchen stove indicated there was trouble.
Jim Nadeau appeared on behalf of the Washoe County Sheriff’s Office and the Nevada Sheriffs and Chiefs Association in support of A.B. 33. Mr. Nadeau said that Deputy Tim Kuzanek would explain the hazards and dangers associated with the chemicals, potential volatility, and the lack of concern for public safety. He noted that photos would be displayed illustrating real-life situations.
Tim Kuzanek, former Detective, Washoe County Sheriff’s Office, Reno, reported he had extensive training in the cleanup and investigations of clandestine meth labs. He said he had been involved in over 300 methamphetamine investigations. Continuing, he shared some basic background on methamphetamine:
· Methamphetamine was a stimulant available in powder or “rock” form.
· It was a synthetic drug consisting of readily available chemicals such as cold medicines.
· The chemicals were combined in a simple ”cook” process.
· The most common problem was that the manufacturers did not care about the dangerous conditions created by the manufacturing process.
· Numerous involved chemicals were carcinogens and tredogens and were flammable and combustible.
· Hazardous atmospheric problems were created during the manufacturing process.
· Fires and cleanups after completed “cooks” continued to be an issue.
· The amount of chemical residue remaining after a “cook” exceeded the amount of finished product, approximately five pounds of residue to one pound of methamphetamine.
Bob Roshak, Sergeant, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department, and representing Nevada Sheriffs and Chiefs Association, endorsed A.B. 33. He stated the use of methamphetamine was dangerous to the individual; the manufacturer endangered the entire community.
Kristin L. Erickson, Chief Deputy District Attorney, Criminal Division, Washoe County District Attorney, and a representative of the Nevada District Attorneys Association (NDAA), spoke in support of A.B. 33. She said that meth labs were becoming more common in Clark County and were extremely dangerous. The high cost associated with the cleanup of these labs involved requesting a hazard materials (hazmat) team. Ms. Erickson opined that any legislation that could be enacted would deter the manufacturing of methamphetamine in a residential neighborhood and where individuals would be placed at a substantial risk.
Mr. Nadeau reported that 200 meth labs were identified in 2002 in Clark County; in 2001 there were 300. In Washoe County, 30 to 50 labs were identified.
Vice Chairman Oceguera questioned whether an amendment was being submitted by the NDAA. Ms. Erickson said the amendment had been withdrawn since there was an amendment proposed in the Senate.
Assemblyman Carpenter queried how long a location could be used to manufacturer methamphetamine. Mr. Nadeau said that a location could be used for any length of time. Oftentimes, the individuals did not pay the rent, they were evicted, or the location was abandoned as the residue accumulated. It was not uncommon for a location to be rented, used for a short period of time, and then abandoned. Even hotel rooms were used for a couple of days and then the individuals moved out.
Vice Chairman Oceguera asked for an explanation of the costs to clean up a meth lab. He noted that the Las Vegas Metropolitan Police Department had its own unit that cleaned up meth labs, which sometimes took hours.
Detective Kuzanek agreed the costs were phenomenal, not to mention the number of personnel required on the scene and the disposal methods utilized. Another trend in the methamphetamine manufacturers’ production was to use a chemical called anhydrous ammonia, which was very expensive to dispose of and very cumbersome for the cleanup teams. An average cleanup would cost $5,000 to $8,000 in situations where the lab did not burn down and there were no especially dangerous chemicals requiring special handling.
Assemblywoman Angle asked for clarification of the risk analysis mentioned previously by Mr. Horne. She also questioned where convicted manufacturers were incarcerated—minimum, medium, maximum, or honor camp facilities. Ms. Angle asked if methamphetamine manufacturers were considered non‑violent and whether they were released into the community under minimal supervision. Detective Kuzanek noted that in most cases, the convicted manufacturers were placed in “regular” prison, not into specialized programs. He was unsure whether those inmates would be considered non-violent. In his experience over the last year and a half, he reported he had seen considerable changes in the manufacturing operations, including increased surveillance equipment and firearms at the scenes, which might affect that classification.
Ms. Erickson stated that manufacturing and/or possession of methamphetamine was not a mandatory prison sentence; an individual was eligible for probation for up to five years.
Assemblywoman Angle asked, taking that into consideration, how A.B. 33 would increase the deterrent. She suggested that “where you go” rather than “how long you go” should be the focus. Ms. Erickson responded that the deterrent effect would be in the length of the prison sentence. If an offender was convicted of manufacturing methamphetamine and sentenced to a term of 3 to 10 years, the enhancement would add an additional and consecutive 3 to 10 years. Although an individual might receive probation, rather than facing 3 to 10 years, the individual would face 6 to 20 years if he violated his probation in any way.
Assemblyman Horne asked whether firearms and booby traps posed an additional danger when entering these locations. Detective Kuzanek reported that the booby traps seen recently were mostly handmade and included such items as motion detectors connected to light bulbs, chemicals placed behind doors to create harmful fumes if disturbed, and tennis balls loaded with self‑striking match heads to be thrown as bombs. The surveillance equipment had become more sophisticated, utilizing color cameras with no wires, night vision, and sound capabilities.
Assemblyman Horne asked that the photographs the witnesses had brought with them be displayed for the Committee members. Numerous photos on three large display boards were placed on easels. Detective Kuzanek explained that the photos had been taken at a number of meth lab scenes within Washoe County.
Assemblywoman Angle questioned whether additional charges could be brought regarding endangerment, neglect, or abuse of children. Ms. Erickson noted that child endangerment was only a gross misdemeanor with a possible sentence of one year in jail and a maximum fine of $2,000. If the child endangerment caused substantial bodily harm, suffering serious chemical burns, the charge could be child abuse causing substantial bodily harm, which would be a felony.
Assemblyman Geddes asked whether a blood test to determine if the child had been exposed to chemicals could add to a charge. Ms. Erickson said she was not aware of that ever having been done.
Assemblyman Gustavson agreed A.B. 33 was good legislation but said it raised more questions. If the intent of A.B. 33 was to reduce the number of meth labs “in town,” individuals might take their operations outside of the county where it could be more difficult to identify. Mr. Gustavson questioned whether the focus should be to increase the penalties rather than adding an enhanced penalty. Mr. Nadeau said the purpose of A.B. 33 was to deter meth labs everywhere, especially in close proximity to other people.
Assemblyman Carpenter questioned if a portion of A.B. 33 had been found to be unconstitutional and the Senate was proposing an amendment, how could the Committee act upon the bill. Ms. Lang responded that NRS 453.322 had been found to be unconstitutional. NRS 453.322 was referred to within A.B. 33 but was not specifically included in the legislation. There was nothing inherently wrong with A.B. 33. The amendment proposed by the NDAA addressed the same issue being handled in the Senate. Assemblyman Carpenter said A.B. 33 seemed to be the proper vehicle to handle the amendment. Assemblyman Horne said he had no objections to addressing the amendment regarding NRS 453.322.
Vice Chairman Oceguera said the amendment would be handled in the work session.
Assemblywoman Angle commented that meth labs were a “for profit” business. She questioned whether there were monetary penalties or provisions for restitution that were associated with the charges and sentences. Ms. Erickson replied there was a $10,000 fine for manufacturing methamphetamine, as well as provisions for restitution regarding the cleanup costs. When a person was sentenced to prison or to probation, restitution was usually a part of the recommendation from P&P. However, the fines were rarely paid.
Vice Chairman Oceguera asked Ms. Erickson to explain the proposed amendment (Exhibit E), which would be handled in the work session.
Ms. Erickson stated the NDAA had proposed an amendment (Exhibit E), which dealt with NRS 453.322. As Ms. Lang indicated, that was a section that was referenced in A.B. 33 from Assemblyman Horne. The state had attempted to address the unconstitutionality problem prompted by a recent case where the Nevada Supreme Court declared that possession of a majority of ingredients to manufacture methamphetamine was unconstitutional for lack of two intent requirements and a list of ingredients. The NDAA attempted to include a list of ingredients commonly used in many methods of manufacturing methamphetamines and to address the intent requirements.
Vice Chairman Oceguera noted that NRS 453.322 included an optional fine. He questioned how an individual was eligible for probation when the statute mandated no probation. Ms. Erickson noted that very few crimes were probation ineligible. It was preferable that individuals be sentenced to prison, but a person with no criminal history who made a good-faith effort by going to drug rehabilitation might be granted probation. Vice Chairman Oceguera called attention to NRS 453.322, Section 3, which stated “the court shall not grant probation to a person convicted pursuant to this section.” Ms. Erickson said it was her understanding that if a person was to provide substantial assistance to the police agencies, such as turning over other manufacturers of methamphetamine, he would be eligible for probation.
Vice Chairman Oceguera closed the hearing on A.B. 33.
Chairman Anderson commented that a work session had been scheduled for February 25, 2003. He mentioned other upcoming deadlines:
Chairman Anderson adjourned the meeting at 9:22 a.m.
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: