MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
March 12, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:06 a.m., on Wednesday, March 12, 2003, 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 Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
GUEST LEGISLATORS PRESENT:
Senator Raymond (Ray) D. Rawson, Clark County Senatorial District No. 6
Senator Barbara K. Cegavske, Clark County Senatorial District No. 8
Senator Joseph (Joe) M. Neal Jr., Clark County Senatorial District No. 4
Assemblyman Bernard (Bernie) Anderson, Assembly District No. 31
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Barbara Moss, Committee Secretary
OTHERS PRESENT:
Donna Coleman, President, Children’s Advocacy Alliance
Daryl Riersgard, Criminal Information Services Manager, Central Repository for Nevada Records of Criminal History, Nevada Highway Patrol, Department of Public Safety
Leticia Johnson, Program Manager, Central Repository for Nevada Records of Criminal History, Nevada Highway Patrol, Department of Public Safety
Charlene Hoerth, Management Analyst, Special Services Unit, Central Repository for Nevada Records of Criminal History, Nevada Highway Patrol, Department of Public Safety
Richard L. Siegel, Lobbyist, American Civil Liberties Union of Nevada
Sandy Mazy, Acting Administrator, Office of Criminal Justice Assistance, Department of Public Safety
Nancy E. Hart, Lobbyist, Nevada Coalition Against the Death Penalty
Andrea Wicker
Mary Valencia Wilson, Political Action Chair, Reno-Sparks National Association for the Advancement of Colored People, Advocacy Committee for League of United Latin American Citizens, Reno Council, and the Board of Alliance for Workers’ Rights
Robert V. Payant, Lobbyist, Nevada Catholic Conference
Mark J. Nichols, Lobbyist, National Association of Social Workers - Nevada
Larry D. Struve, Lobbyist, Lutheran Advocacy Ministry
Reverend Dr. Jane Foraker-Thompson, President, Religious Alliance in Nevada
Kerry Lee, Lobbyist, Progressive Leadership Alliance of Nevada (PLAN)
Reverend Dr. Phil Hausknecht, Lutheran Advocacy Ministry in Nevada
John L. Wagner, Lobbyist, Burke Consortium of Carson City and Nevada Republican Assembly
R. Ben Graham, Lobbyist, Nevada District Attorneys' Association/Las Vegas
Daniel J. Greco, Chief Deputy District Attorney, Washoe County
Kristin Erickson, Chief Deputy District Attorney, Washoe County
James J. Jackson, Lobbyist
Senator Amodei:
I will open the hearing on Senate Bill (S.B.) 218.
SENATE BILL 218: Revises certain provisions relating to program that provides public with access to certain information in statewide registry concerning certain sex offenders and offenders convicted of crime against child. (BDR 14-159)
Senator Raymond (Ray) D. Rawson, Clark County Senatorial District No. 6:
Senate Bill 218 is a simple bill that makes some significant policy decisions. We are trying to clarify bills passed in earlier Legislative Sessions that allow us to register sex offenders and make the information available to the concerned public. About a year ago I was approached by Donna Coleman, Children’s Advocacy Alliance, with compelling information regarding this issue. In Nevada, approximately 1500 repeat sex offenders are required to register, but they do not register and are out of compliance. The offenders live in neighborhoods and many pose a risk to children. Senate Bill 218 would set up Internet access for people to determine which sexual offenders reside in their neighborhood. This is a sensitive issue and there are protections in the bill.
Senator Barbara K. Cegavske, Clark County Senatorial District No. 8:
Senator Rawson and I were requested by constituents to look into the issue and create this bill. It was a pleasure for me to be a cosponsor with Senator Rawson. There are 7277 known sex offenders who have been convicted of crimes against children in the State of Nevada; 4186 are considered active files by the Central Repository for Nevada Records of Criminal History and approximately 3091 have been rendered inactive because of death, deportation, or reentering the prison system. Of the 4186 active offender files, the statewide repository is tracking 3236, and 1500 are in noncompliance. This equates to approximately 26 percent of sexual offenders as noncompliant in Nevada at the present time. You can understand our concern.
Donna Coleman, who has done an excellent job as an advocate for the State of Nevada, will provide testimony. We are also fortunate to have Daryl Riersgard, Criminal Information Services Manager, Central Repository for Nevada Records of Criminal History, here to testify and answer any questions.
Donna Coleman, President, Children’s Advocacy Alliance:
Thirty-three other states have Web sites that identify sexual predators in their communities. Megan’s Law, which requires predators to register, was enacted because a little girl lived next door to a convicted child molester, unbeknownst to her family, and was abducted and killed. The year 2002 was a horrible year for children in this country. In Clark County, 17 children between birth to 4 years of age contracted sexually transmitted diseases by way of molestation. By the age of 10, the numbers reached over 100 cases.
A Web site that identifies the two types of sexual predators most likely to recidivate, classifications tier 2 and tier 3, will give parents one more way to protect their children. Tier 2 offenders are considered highly likely to commit the crime again and tier 3 offenders are considered to not only commit the crime, but with violence.
The Center for Sex Offender Management in Washington D.C. [Silver Spring, Maryland] suggested we use the Web site for educational purposes as well. For example, if a parent signs on, the first thing they will see are the top ten things you can do to protect your child from a sex offender. Based on news stories I have done on this subject, and the public response, I think there will be thousands of hits on this Web site. Boulder City was so concerned over one broadcast that a town hall meeting was held asking the reason we did not have a Web site. A few years ago, ex-Senators Mark James and John Porter, and others, attempted to pass such legislation. States were sued over the issue of whether or not Megan’s Law and Internet identification (ID) sites were constitutional or punitive.
Last week the U.S. Supreme Court weighed in on the subject and deemed it constitutional, not punitive; the public has a right to know and it is not additional punishment, it is part of the punishment. The Web site is worth it if just one child is spared the abuse of a sexual predator. The fact is many children will be spared such abuse which is the reason 33 other states have such Web sites.
According to the Center for Sex Offender Management, on average, a sex offender with an official number of two victims has actually had an average of 110 victims and 318 offenses. This was a study done by Marshall and Barbaree in 1990 through polygraph tests on sex offenders serving prison time.
The other issue is compliance. It is a felony not to register, however, currently in Nevada there are 1591 sex offenders out of compliance. In other words, we do not know where they are. Of the 1591, 641 never bothered to register and 950 registered the first year, but never again. In addition to S.B. 218, we propose to put these felons on a police hot file; therefore, if they are pulled over for any other crime they will be red-flagged and arrested. We need to send a message that sex offenders can no longer hide out in Nevada.
Senate Bill 218 will not cost the State anything. The Children’s Advocacy Alliance will provide $35,000 of the approximate $50,000 price tag, which will also include putting it on the police network. Mr. Riersgard will address the balance.
Daryl Riersgard, Criminal Information Services Manager, Central Repository for Nevada Records of Criminal History, Nevada Highway Patrol, Department of Public Safety:
I will read my prepared testimony (Exhibit C) which includes an explanation of a handout entitled “Sex Offender Registry” (Exhibit D). There are 33 states doing Web-based Internet notifications and at the present time Nevada is playing catch‑up.
The S.B. 218 fiscal note indicates no impact on the General Fund. We currently collect $22,000 in fees. To put it into perspective, we would gladly back away from those fees in the interest of making this easier and more user-friendly to the citizens. On the other hand, we currently have one employee who handles telephone responses and necessary research. We estimate the number of public inquiries will quadruple up to 10,000 within the next year. Should that prediction be correct, there would be a need to hire another or possibly two more employees to handle the telephone volume. I would venture to say, with the Web site notification system the inquiries would quickly rise to 20,000. We are here to put our support and cooperation behind that effort.
Ms. Coleman said she could provide $35,000 through the Office of Criminal Justice Assistance. Yesterday I was assured by Sandy Mazy, Acting Administrator, Office of Criminal Justice Assistance, that she would contribute $15,000 in set-aside federal Byrne Grant money. Further, Ms. Mazy said she would provide funds for the third phase as well.
The third phase would link the sex offender database with the computer system accessed by street officers when they make traffic stops. It would be the first opportunity to begin apprehending felony violation sex offenders. There is a two-step process in order to make the third phase a reality. The information technology group indicated $2500 of computer programming would accomplish a quick connection, with refinement over time. We would commit to that direction should the resources be available.
In our estimation, the budget architecture for the repository is flawed. Court assessments consistently come in short. The sex offender program is part of the criminal history records system funded by court assessments. Due to revenue shortfalls I am forced to cut staff and because of staff shortages I am faced with huge backlogs. We are talking optimistically about some fresh and productive ideas, but they would be built on a shaky budget foundation until the budget problems are fixed. Page 12 of the handout (Exhibit D) details some of the costs.
My staff, who are experts on the sex offender registry (SOR) program, are present and prepared to answer any questions.
Senator Washington:
I appreciate the work that has gone into S.B. 218. You took the Ninth Circuit Court of Appeals decision based on Alaska’s provision for registering sex offenders. I wonder whether it violates the ex post facto clause. You want it retroactive to July 1, 1997. The Connecticut case had an interesting twist wherein they found it violated due process because of retroactivity. I wonder whether we will run into the same scenario. You tiered the registry based on the level of offense. In tier 1 information is not disclosed, in tier 2, information may or may not be disclosed at the discretion of the Department of Public Safety, and in tier 3, information shall be open. There are only 43 offenders listed at the tier 3 level. Can you alleviate that concern?
Ms. Coleman:
The U.S. Supreme Court weighed in on that last week; therefore, Connecticut and Alaska are no longer of concern. The court said states have the right to put offenders, currently in the system after the law is passed, on the Web site. Therefore, both situations were upheld.
Mr. Riersgard:
An interesting aspect of the Supreme Court case was they cleared the retroactive portion and it is no longer a problem. The language said public safety outweighed any concerns. Regarding tier levels and reporting, it is our intention to report to the public all tier 2 and tier 3 offenders. The language is useful because of plea bargaining that may affect a case in tier 2. It may be discretionary not to go there, but we fully intend to report the vast majority of tier 2 and tier 3 offenders.
The U.S. Supreme Court ruling was firm as to the rights of states to do this while using caution with tier 1 offenders. The court listed three examples: the college streaker, the 12-year-old Peeping Tom, and issues that do not rise to the level of inclusion. The U.S. Supreme Court left the tier 1 option open in order to revisit it. I think it is prudent to keep tier 1 offenders out of the Internet reporting system.
Senator Care:
It seems to me if a member of the public makes a request and it is provided, it is then public information. Why would the requestor have to identify him or herself? What difference would it make? Why would the State advise the requestor the information should not be used to violate the offender’s individual rights in regard to misuse of the information? I do not know what that would be. I do know whether or not it is up to the State. It is a judgment call by the requestor. In my judgment, it is public information and could be freely disseminated. There may be a defamation angle, but I am unaware of the criminal exposure.
Mr. Riersgard:
This whole thing evolved quickly and much of the preparatory work was done yesterday in a whirlwind of activity. We do not have all the legal answers. I am meeting with three deputy attorneys general today to discuss some of your questions. Regarding your second example, there is long‑standing language in these types of laws to eliminate the temptation for vendetta by taking an offender’s poster from the Web site and posting it throughout the neighborhood. This may be the reason the U.S. Supreme Court is advising caution.
I will cover these questions with legal counsel today. One of the questions for the attorney general’s office is whether or not we can use the Internet system to highlight some of the more dangerous offenders who are out of compliance and use the system as an electronic wanted poster in order to seek public input to locate the offenders. These are the issues on which we must do our homework.
Senator Care:
In the course of doing your homework, I would also like to know the discretionary standard when releasing additional information on the offender such as: name, aliases, zip code, workplace, school, and why in some cases the information would be given and others not. It seems to me it should be all or nothing and the information used at the discretion of the requestor.
Senator McGinness:
You talk about the initiatives being built on a shaky budget foundation, $35,000 may be available, and $15,000 could be covered. I wonder if there could be tighter assurances on whether or not the budget may be covered. If grants are received to cover the cost, what would happen the next fiscal year should they not be available? Would the program go away?
Mr. Riersgard:
The funding would build the Web site system and I am unaware of any additional cost thereafter. We are happy to provide whatever assurance is appropriate.
Senator McGinness:
Did you indicate once the Web site is established you may have to hire two more employees in order to make it function?
Mr. Riersgard:
The law reads the director of the department has the option to do a telephone or Web site response. After the Web site is up and running, a telephone response will not be required. The employees who normally answer telephone inquiries can do other work because the Web site will provide information.
Senator Wiener:
I notice there are 1213 with no assessments [minor offenses]. Could you describe the offense, what kind of charge it would be considered in the criminal system, and how it would be handled in the criminal repository?
Mr. Riersgard:
I defer to my experts.
Leticia Johnson, Program Manager, Central Repository for Nevada Records of Criminal History, Nevada Highway Patrol, Department of Public Safety:
I defer to Charlene Hoerth.
Charlene Hoerth, Management Analyst, Central Repository for Nevada Records of Criminal History, Nevada Highway Patrol, Department of Public Safety:
Minor offenses refer to misdemeanor convictions that do not require registration. Tier assessments are set at felony-level convictions.
Senator Wiener:
What sexual offense would qualify under minor offenses?
Ms. Hoerth:
Sexual offenses would be in the statute that requires tier assessment, therefore, it would be sexually motivated assault at the felony level.
Senator Wiener:
It would be a minor offense?
Ms. Hoerth:
A minor offense would be like a Peeping Tom. All tier-level assessments are felony convictions and minor offenses are misdemeanors.
Senator Wiener:
I wanted an example, but I will get it from staff. Thank you.
Senator Washington:
There is a problem with offenders who wish to remain incarcerated and have no tails once they leave the correctional system. Even if they register they have no place to go. Those who come out and have a tail usually do not have a place to live. Upon exit, they must have an address under which to register. The problem in Nevada is these offenders live everywhere and anywhere and it is difficult to track them. Detective Adam Wygnanski, Regional Sex Offender Notification Unit, Reno Police Department, has repeatedly expressed concern about tracking these individuals within the community. I am unsure whether or not you have a solution for the problem, or whether S.B. 218 answers it, but there is a persistent problem. I wonder whether the bill addresses that upon a sex offender’s exit from prison, he or she must register with some type of location.
Mr. Riersgard:
You covered a number of issues. One problem with rapid state growth is the proliferation of these types of cases. It is an even bigger issue in Las Vegas because local law enforcement is charged with tracking the offenders. After the publicity indicating California had lost track of 44 percent of its sex offenders, the attorney general’s office said the problem could be fixed for $15 million by hiring more detectives to reduce caseload ratio. Unfortunately, that is reality.
In answer to homeless offenders being released from incarceration, they are expected to register when they obtain a residence. Simply knowing the offender has registered in the area shows good faith and helps Detective Wygnanski do his job. Clearly the success of this program is at that level and it will, or will not work. It needs help on the fringes and S.B. 218 will do that.
Senator Washington:
I appreciate what you are saying and understand the complexity of the problem. It is not tier 1 offenders that are of concern, it is tier 2 and tier 3 offenders, especially tier 3, because those offenders have a propensity to repeat. In fact, upon release, their desire is to satisfy their urges.
Ms. Coleman:
The Children’s Advocacy Alliance will guarantee the funds.
Richard L. Siegel, Lobbyist, American Civil Liberties Union of Nevada:
Although we are not present to take a position on the substance of S.B. 218, I feel a need to respond to Senator Care’s question about the warning to people who receive information on the Web site. The point is the State has a responsibility and an obligation to protect even the most heinous offender. Vigilante justice has always been a concern in this area. The least we can do is put on the Web site the fact that the conspicuous identification of the offender removes him or her from any privacy protection. The posting should be accompanied by a gesture to inform users that these individuals have the right to not be fair game for any kind of retribution.
Senator Care:
I understand, but I do not know whether or not those warnings would be followed. Who knows the reason a person requests information? I do not know whether the requestor should be required to identify him or herself. A radio station could request a list of offenders and I am not sure what justification there would be to not provide the information.
Sandy Mazy, Acting Administrator, Office of Criminal Justice Assistance, Department of Public Safety:
I want to assure you I will guarantee the balance of the money.
Senator Wiener:
Fifty-thousand dollars will be required to get the Web site up and running. Certainly there will be maintenance for updating information and so forth. Is that factored into the $50,000?
Ms. Mazy:
There are a couple of different grants that would be available to support this endeavor.
Senator Amodei:
Seeing no further testimony, I will close the hearing on S.B. 218 and open the hearing on Senate Bill 217.
SENATE BILL 217: Abolishes capital punishment. (BDR 15-1044)
Senator Joseph (Joe) M. Neal Jr., Clark County Senatorial District No. 4:
This is an issue that has come before the Legislature on numerous occasions. We are back again because it is an issue that should be considered by every session of the Legislature until such time it is acted upon.
I am present today to ask the Senate Committee on Judiciary to peruse this issue and pass the measure. In so doing, we would forge new ethics relative to capital punishment in this State, which is justice without vengeance.
It is easy for the proponents of capital punishment to talk about the death penalty because, to a great extent, it has been used as an issue by individuals in law enforcement, particularly district attorneys and other elected officials, to get elected. It is an issue that shows a person is macho in terms of being able to take a life when a heinous crime has been committed and the relatives of such victims call for the death penalty. Due to the appeal of those individuals, such legislation exists in many states throughout the country and the State of Nevada.
It is difficult to forge this new ethic in terms of looking at a crime that has been committed. Rather than take an individual’s life, we put him or her in prison for the rest of his or her life. In so doing, we would move toward a type of ethic in society that would be considered worthy in years to come.
We cannot defend life by taking life. We cannot contain violence by using violence. These words came from Cardinal Mahoney of the Los Angeles diocese when speaking about this particular issue. We must forge an ethic to defend life and not allow the State to take life. When we do that we become better people and a better society.
I provided a red folder (Exhibit E. Original is on file in the Research Library.) which lists many things. An exhibit therein shows the outline of capital punishment in Nevada. There is a reasonable doubt the United States executes innocent people. As you peruse the folder you will see certain things that attract your attention to the reasons this particular punishment should not be necessary. Senate Bill 217 calls for the elimination of capital punishment. In place of that, we are asking for murder in the first degree, for which a person could be placed in prison for the rest of his or her life.
With that said, a number of individuals will testify on this issue today, including the cosponsor of the bill, Assemblyman Bernie Anderson.
Assemblyman Bernard (Bernie) Anderson, Assembly District No. 31:
I want to raise my voice and join with my colleague in support of S.B. 217. It seems to me the way we treat the people in our society who are least able to protect themselves is the true mark of a democracy. I want to draw your attention to why I believe the death penalty does not work. Beyond the moral argument, it has become apparent the current system is antiquated and fails the citizens of our State and the nation.
I will read my prepared testimony (Exhibit F).
Nancy E. Hart, Lobbyist, President, Nevada Coalition Against the Death Penalty:
I am president of the Nevada Coalition Against the Death Penalty (NCADP) and a representative for Amnesty International in Nevada. I am also a deputy in the Office of the Attorney General, but I am not here in that capacity today. I am here on my own time speaking as a private citizen on an issue of great importance.
The NCADP is a statewide group of individuals and organizations working to abolish the death penalty and we strongly support S.B. 217. The coalition is broad-based and there are members from organizations committed to human rights, civil rights, and civil liberties, such as Amnesty International, the American Civil Liberties Union (ACLU), and the National Association for the Advancement of Colored People (NAACP). There are members from religious communities. You may be aware that almost every religious organization in the country has a strong position against the death penalty.
There are hundreds of us in Nevada who support S.B. 217 and believe the death penalty should be abolished. At the same time, we have the utmost respect and concern for the family members and loved ones of victims of murder and violent crimes who struggle to heal their immeasurable loss and grief.
The coalition includes people whose faith is the main basis of their opposition to the death penalty, including Methodists, Catholics, Lutherans, Episcopalians, Jews, Friends, Presbyterians, Unitarians, Universalists, and so forth. There are family members of murder victims and other violent crimes who know the death penalty does not bring closure or healing for the terrible losses they suffered. There are members from organizations that work for economic, social, and environmental justice. There are also social workers, lawyers, teachers, doctors and other health professionals, office workers, hotel and restaurant employees, clergy, and members of the lay community.
Some members have philosophical and moral positions against the death penalty. As a long-time member of Amnesty International, I believe the death penalty is a violation of fundamental human rights, the right to life and the right to be free from cruel, inhuman, and degrading punishment. In addition to our philosophical views, we know the death penalty is seriously flawed and no modern industrialized country can call itself truly civilized when it kills its own citizens.
Ms. Hart:
Nations that execute most frequently include China, Iran, Saudi Arabia, the United States, Taiwan, Sierra Leone, Kazakhstan, Nigeria, and Kyrgyzstan. The United States is the only Western industrialized democracy to retain the death penalty.
Often the flaws in a system get attention: racial discrimination, actual claims of innocence, or the fact it does nothing to deter violent crime or make society safer. It is costly to maintain a criminal justice system based on the death penalty versus one in which life imprisonment without parole is the maximum sentence. It is used on some of the most vulnerable population: the mentally retarded, minors under the age of 18, and the mentally ill. The death penalty is inconsistently applied, thus, it is unfair and arbitrary.
The flaws that illustrate the unfairness and inappropriateness of the death penalty cause people to look closely at how it actually works. One significant example mentioned by Assemblyman Anderson is ex-Governor Ryan of Illinois who was a strong supporter of the death penalty when he began looking at the Illinois death penalty statute. He ultimately considered it so seriously flawed that he commuted the sentences of the individuals on death row.
We are opposed to the death penalty and our numbers are growing because people are learning more about the issues behind the death penalty. We are confident the more one studies the death penalty, the more one realizes it is not a solution to the problem of violent crime and is an outdated and barbaric symbol of cruelty and disregard for human life.
I leave you with one final thought. How does the death penalty teach our children killing is wrong when our government says it is permissible to kill a citizen for very bad behavior? How does the death penalty teach our children anything other than violence and vengeance as a response to the violence and crime around us?
Andrea Wicker:
I will read my prepared testimony (Exhibit G). I would like to thank Senator Neal and Assemblyman Anderson for sponsoring S.B. 217.
Mr. Siegel:
Like Senator Neal, I have been before this committee for over 30 years. I am glad to say we have made progress in making the death penalty more rational in the last few years, but we have so much further to go. Prosecutors say the death penalty is punishment for the worst possible offenses, but Nevada does not limit it to the worst possible offenses. Not very long ago a South African gentleman was given the death penalty, which had to do with his defense. His penalty did not have to do with the level of his crime to any great extent nor did it have to do with the factors involved. Many times the poorest people in our society receive the death penalty and the wealthy with their high-priced lawyers almost never do.
The most important point is the financial futility of the death penalty. Assemblyman Anderson indicated approximately $2 million is spent to impose the death penalty and about $740,000 is spent for life imprisonment. I want you to understand this. In Nevada, only one person has been executed against his will in 27 years. We are in the Ninth Circuit Court which will remain the most difficult circuit to actually give finalization to the death penalty. It is a hollow expectation we will have the death penalty, particularly in marginal cases of 16‑year-olds and so forth. We can oppose the death penalty for 16‑year-olds, but the Ninth Circuit Court will not allow it to be made final.
The politics of the death penalty have changed. For 3 years the politics have become such that the death penalty is on the defensive: Pennsylvania, where recently a supreme court committee asked for a moratorium, Maryland, Connecticut, and Illinois, where many people have been exempted from the death penalty. Assemblyman Anderson said 51 percent consider the death penalty unfair. Also, about 51 percent consider if life without parole means life without parole, it is all right with them. Support for the death penalty is not based upon a choice between life without parole and the death penalty, it is based on the assumption the offender would not get life without parole. In Nevada, you and I know life without parole means life without parole. You made sure of that. The times are different even for the most heinous crimes. I acknowledge there are terribly heinous crimes, but we can deal with them cost effectively and in an acceptably punitive way. It is certainly as punitive as anybody can think of to go to life without parole.
Mary Valencia Wilson, Political Action Chair, Reno-Sparks National Association for the Advancement of Colored People, Advocacy Committee for League of United Latin American Citizens, Reno Council, and the Board of Alliance for Workers’ Rights:
All the organizations I represent are in favor of S.B. 217.
Robert V. Payant, Lobbyist, Nevada Catholic Conference:
I will read my prepared testimony (Exhibit H).
Mark J. Nichols, Lobbyist, National Association of Social Workers - Nevada:
I am here to support S.B. 217. It is a tenet of the social work profession and our national policy to oppose the death penalty. I personally am opposed to the death penalty and would like to see it abolished in the State of Nevada. I recognize not every citizen of the State shares my belief, but we all believe if we have the death penalty it should be fair, accurate, and equitable. I think that is a shared value of most reasonable Nevadans. To that end, later in the session you will hear some reform efforts in regard to the death penalty.
I had a conversation yesterday in the lobbyist room about an Assembly bill passed the day before which would increase attorneys’ fees from $75 to $125 an hour. We asked, “Where will the money come from, or have we just passed this along to the local agencies or governments?” I said, “I have a simple and effective solution to that issue.” I was asked what it would be. I said, “Come to senate judiciary tomorrow and support Senator Neal’s bill to abolish the death penalty.” The person acknowledged it was a simple and effective solution, but I sensed there was a “but” after it.
I encourage you to seriously consider abolishing the death penalty in Nevada. I believe it can never be implemented in a fair, accurate, and equitable manner. It is an internally flawed system. There are dollar costs related to additional counsel and the like. What is the cost of having an innocent person on death row for but one day?
In closing, I urge you to seriously consider and pass S.B. 217.
Larry D. Struve, Lobbyist, Lutheran Advocacy Ministry:
With me today are Reverend Dr. Jane Foraker-Thompson and Reverend Dr. Phil Hausknecht. I provided a statement prepared by the Religious Alliance in Nevada (RAIN) board (Exhibit I). The statement is a call for abolition of the death penalty and summarizes the main points that have driven each of these judicatories to conclude the death penalty should be abolished. I point out, among the residents of Nevada, those who worship in the parishes of these five judicatories comprise approximately 500,000 people, which is not an insignificant number. As Mr. Payant pointed out, these five judicatories are not the only ones that have taken a position, both in the State and nationally, in opposition to the death penalty. You will hear from clerical persons on behalf of RAIN, the moral and religious grounds as to why they are opposed.
Senators Nolan, Washington, and McGinness served on the interim study of the death penalty. At the beginning of the study you may recall Pastor Ronald Rentner, Lord of Mercy Lutheran Church of Sparks, said, “If after reviewing all the evidence about how the death penalty is administered in Nevada, you can conclude it is indeed flawless and every person who receives the death penalty can be put to death because of a fair and just process, only then should you support the death penalty.”
Of course, a voluminous document came out of the interim study and documented a number of flaws, all of which persuaded those active in RAIN that we do not have a flawless, just, and fair death penalty system in the State of Nevada. I will not reiterate the evidence behind it, but invite you to read the interim study report which was reviewed at a RAIN legislative conference. I want to highlight one part because it really grabbed the attention of RAIN.
Page 19 of the interim study report addresses the cost of maintaining the death penalty system in Nevada. The report indicates since the death penalty was reinstituted in Nevada, there have been 133 death sentences handed down and only 9 executions. Therefore, only approximately 10 percent of those who received the death penalty were executed.
The study goes on to document cost as a consideration in our current environment. A study was done in North Carolina by the administrative office of the courts that determined the extra cost of bringing a person to execution is $2.16 million. It is my understanding from the report if a death sentence is imposed, but not carried out, the cost per inmate is $216,000. I pointed out to the Assembly Committee on Judiciary, using the figures from the interim study report and considering that 10 percent who receive the death penalty are executed in Nevada, if the costs are the same in Nevada as in North Carolina, an additional cost of $28.728 million to execute the 10 percent who receive the death sentence in Nevada is incurred. If we gave the 84 persons currently on death row life in prison without parole, and did not attempt to execute them, the extra costs in having the death sentence imposed would total $18.144 million.
When considering a $1 billion tax increase and massive cuts in programs strongly supported by RAIN, every dollar spent to maintain a system like this needs to be carefully scrutinized. From the standpoint of RAIN, it is unjustified to spend this kind of money to maintain a system that executes 10 percent and does not achieve the goals set forth in the statute.
Reverend Dr. Jane Foraker-Thompson, President, Religious Alliance in Nevada:
I was a criminologist for 24 years. Half the time I was in the field and the other half I was a professor of criminal justice and taught criminal law. Among other things, I did research in these areas before I changed sides and became a pastor. Since then I have done prison ministry and seen men in prison who have committed heinous crimes. During my time as a criminologist I was also a victims’ advocate and helped pass laws for victim protection and advocacy in two states. Therefore, I also know about victims and what they suffer.
I have been able to minister to both sides because as a Christian, I believe all creatures are God’s creation, good or bad, and there is always an opportunity for forgiveness, change, and growth. Through my prison ministry, I have seen a number of people change tremendously. Some do not change, some play games, but some really have a change of character, regret their crimes, and become born-again people.
The Episcopal tradition I represent has been publicly against the death penalty for over 50 years. In the 1990s our presiding bishop stated, “The taking of human life diminishes us as people.” We all hate the crime of a person who takes a life, but using the death penalty against the one who has taken the life means we end up committing the very act we found so repugnant in the first place. Thus we are diminished, both in the sight of God and one another. The taking of human life for whatever reason is an affront to God. The commandment “Thou shalt not kill” should apply to those on the legal side of the State, as well as those who commit a crime.
In regard to victims, a myth is afoot that executing a person who committed a crime against a loved one will bring closure. This is a myth and untrue. The only thing that brings closure to human beings who have suffered greatly is a spiritual act between them and God. It is an act of forgiveness, letting go of anger and hurt, and letting the wound be healed by God. Only then can people have closure. They will never be the same, but helping take another life will probably add to their anguish, rather than extinguish it.
Kerry Lee, Lobbyist, Progressive Leadership Alliance of Nevada (PLAN):
I am here in support of S.B. 217. I am not only against the death penalty, but also had a personal experience with the murder of a close family member. I grew up in Las Vegas and now live in Reno. My uncle was murdered in October 2000 by his live-in girlfriend. My uncle was very close to me while I was growing up. He moved in with my family after emigrating from Taiwan. He lived with us for several years and was my primary caretaker. My uncle may have lost his life tragically, but he would not have wanted my family to seek vengeance. He would not have wanted my family to be dragged into the judicial system over and over.
In the past couple of years I have come to terms with my uncle’s death. I truly believe he would not have wanted us to pursue the death penalty. He would not have wanted another person killed for his death. I would not wish another loss to result from this tragedy. One life has been lost and we do not need to take another. The death penalty does not work for me, it does not bring closure, nor will it bring my uncle back.
Rev. Dr. Phil Hausknecht, Lutheran Advocacy Ministry in Nevada:
Thank you for considering affirmative action on S.B. 217 and the opportunity to testify this morning in favor of the bill. I thank Senator Neal for having the courage to sponsor the bill and I hope we can continue to support him until it is passed. I have provided two handouts addressing my thoughts on this legislation (Exhibit J and Exhibit K).
I am an ordained clergyman of the Evangelical Lutheran Church in America currently serving a congregation in Las Vegas. You have heard the statistics in support of abolishing the death penalty and my organization and I support it. On behalf of the Lutheran church, we consider the death penalty immoral.
Every year for the past 11 years on the birthday of Dr. Martin Luther King Jr., the interfaith coalition of Henderson has held a celebration of his ideals. This year I was asked to speak to that group. The celebration was held at Green Valley Presbyterian Church in Henderson. I spoke about abolishment of the death penalty and received a good response.
We need to consider these questions. First, the death penalty is unfair, it targets people of poverty, and it is racist in its implementation. A majority of people executed are people of color. Some who have been executed were later found innocent.
Second, the death penalty plays God. In the past 5 years the United States has executed more juveniles than the rest of the world combined, preventing them from an ongoing opportunity to repent, to know God’s forgiveness, and contribute back to society. I would like to relate a quick story. As pastor of a congregation, I married a young couple in the church and baptized their two children. In a fit of passion, the husband killed his wife and was sentenced to life imprisonment. I sat at his trial, consulted with his family, and the family of his wife who was killed. The church is there to support victims in their distress and find a solution, and the solution is forgiveness, not vengeance or execution. It is pleasant for me to announce that after all these years the young man has changed and repented and wants to contribute to society. I think his life has turned around.
Third, the death penalty is immoral because it is expensive, more so than life in prison without parole. It is not a deterrent. You have heard the facts and figures. It does not make us a moral world leader, rather it puts us in line with the “axis of evil” and countries that continue the death penalty. It is said the United States is the only major Western nation that still implements the death penalty.
Finally, the death penalty itself is violent. Recently, according to public radio, long-term studies indicate children who watch a lot of violence on television grow up perpetrating that violence. The death penalty is an example that ongoing education in violence is permitted and endorsed by our society. The Reverend Dr. Martin Luther King, Jr. said,
The ultimate weakness of violence is that it is a descending spiral begetting the very thing it seeks to destroy. Instead of diminishing evil, it multiplies it. Through violence you may murder the hater, but you do not murder hate. In fact, violence merely increases hate. Returning violence for violence multiplies violence adding deeper darkness to a night already devoid of stars. Darkness cannot drive out hate, only love can do that.
I am here today in support of all you heard this morning, especially from my colleagues in RAIN, with the hope Nevada can take a positive step to abolish the death penalty and, with the money saved, move on to cure other ills in our society and put our energy toward preventing crime. Thank you.
Rev. Dr. Foraker-Thompson:
At RAIN’s legislative event, held February 2, 2003, people came from all over the State and presented information on topics coming up in the Legislative Session, one being the death penalty. A gentleman from Las Vegas represented the Muslim community. He heard how the death penalty is implemented with its unfairness, its arbitrariness, its racism, its flaws, many innocent people ending up on death row, and occasionally an innocent person is murdered by the State. At the end of the discourse, he arose and stated to the gathering that his community was for the death penalty, however, after hearing all those things he changed his mind and would inform his community about it.
John L. Wagner, Lobbyist, Burke Consortium of Carson City and Nevada Republican Assembly:
We are totally opposed to repealing the death penalty. After hearing evidence on both sides, a person is tried and sentenced by a jury. I hear the death penalty does not work. I do not think it works either when a person is kept on death row for 27 years. I think justice should be swift. People should get an appeal and not languish on death row for 27 years. Most of the time they appeal because the lawyer has erred in some way. The last case I heard about was appealed because the lawyer slept during the trial. That was the basis for the person’s appeal. Was he appealing because of new evidence? No, he was appealing because he did not think his lawyer was good enough or maybe he sucked his thumb as a baby, his mother slapped his hand, and it turned him into a killer.
I would like to see the death penalty implemented in a fair way. I heard many statistics about churches signing on, however, I did not hear the names of any evangelical churches such as Baptist, Assembly of God, or Nazarene. I also am a Christian and have been for a number of years. I believe in the Bible from one cover to the other. Yes, it does say, “Thou shalt not kill.” It also gives penalties if you do kill. Nobody ever wants to say anything about that. It is like it did not happen and they only want to believe a section of it. The Bible can make anything you want to say about it. For example, you can say Judas went out and hung himself, so do ye likewise. Those words are in the Bible, but I do not think that is what it means.
Insofar as being based on race, most victims killed by minorities are minorities themselves. Have there been statistics on how many victims are minorities? If I thought for one minute people were being put to death because of their race, I would be up here next to Senator Neal saying, “I agree.” However, I do not believe that is the case. When I hear 51 percent are in favor of doing away with the death penalty, I ask, “Where do the numbers come from?” It depends upon who is interviewed and how the questions are asked.
I fully believe in keeping the death penalty. I can cite figures where people have had very swift justice and there have been no murders for many years after. I would give you a couple of examples, but I do not want to take more time because other people want to speak.
R. Ben Graham, Lobbyist, Nevada District Attorneys' Association/Las Vegas:
What a grand and marvelous country we live in to have a discussion such as this with people who are on two ends of the pole. I would like to give a bit of my personal background because we are talking about personal backgrounds and beliefs. Nearly 40 years ago I voted to repeal the death penalty in the state of Oregon. I then went on to get a degree in government and public administration from American University. I came back to Oregon and went to law school at Willamette where I graduated with honors. In the meantime, Oregon returned the death penalty and has it today. So, in the vigor of youth in 1963 it was abolished and then returned.
Over the course of study of death penalty cases in Nevada, I have offered opponents of the death penalty to go over each and every file of individuals sentenced to death in Clark County. I know they would never agree death was proper because, with due respect, that is where they are coming from. However, I could show you the cases and you would understand why and you would not have a question as to why.
I have the deepest personal regard for Assemblyman Anderson, Senator Neal, and the people testifying here today in opposition to the death penalty. I am an Episcopalian, my wife and I are former vestry people; Elana is president of the Episcopal Women at Christ Episcopal Church, and she and I will contribute and cook over 100 pounds of corned beef on Sunday, which is a donation to the St. Patrick’s day bash. Both my wife and I, under the right circumstances, favor the death penalty.
There are two senior deputies from Washoe County who deal with this on a daily basis. It is my personal feeling that once in a great while a killer has really forfeited the dignity of life and turned it over to evil. Not often, but once in a while. For those cases, as long as the people of Nevada feel the death penalty is appropriate, the death penalty should remain.
Today you have heard about the problems. Mr. Chairman, members of the committee, staff, and respected guests, I have been in Illinois and North Carolina, and this is not Illinois or North Carolina. With that I will turn it over to the deputies.
Daniel J. Greco, Chief Deputy District Attorney, Washoe County:
I have worked in the major crimes unit since 1995 and have a lot of experience with murder and capital murder. I was asked to answer any specific questions. I want to comment on some of the testimony in favor of S.B. 217.
We do not dispute statements from Assemblyman Anderson and others that death penalty cases cost a lot. The vast majority are appellate costs because litigation goes on and on, as we all know. Because the cost of a case in terms of total litigation, including appellate litigation, may sometimes reach $2 million does not mean passage of S.B. 217 will save the taxpayers and the State $2 million, or anywhere near $2 million. The vast majority of cases at trial level are defended by public defenders or court-appointed lawyers, paid by taxpayer funds. Virtually every case on appeal at State level is defended by a State public defender. At federal level, in habeas litigation, which goes on and on, they are defended by federal public defenders. The courts are staffed by judges and others who are paid by tax dollars.
In my opinion, and that of many experienced prosecutors, should the death penalty be eliminated, the focus of the other side would shift from the death penalty to the next highest penalty, life without possibility of parole. In other words, the energies of those lawyers, particularly appellate lawyers, would shift to claiming life without possibility of parole is cruel and unusual punishment in violation of the Eighth Amendment and therefore, the court should do away with it.
We think those cost figures are largely illusory because work is done on a day‑to-day basis. Prosecutors, public defenders, federal public defenders, judges, and court reporters are all paid by tax dollars and work from 8 a.m. to 5 p.m., Monday through Friday. Therefore, should S.B. 217pass, those individuals would continue to work, but do other things.
Although there have been problems in other states, such as Illinois, those problems have not surfaced in Nevada to any degree. In Washoe County for instance, there has only been one case in the last decade where someone made a serious claim of actual innocence on appeal. Ultimately, after 20 years the case ended when the offender admitted he murdered the person and in addition, admitted he murdered a second person for which he was not charged.
There have been some documented problems in other states which have not been a serious problem in Nevada. Problems are caught by the appellate court, particularly the Ninth Circuit Court of Appeals, which has not been in favor of the death penalty based upon my reading of their opinions over the years.
Senator Amodei:
I am not familiar with the procedure in these cases, but when we talk about the expense to process a case in a capital context, is that procedure largely dictated by statute at State and federal levels?
Mr. Greco:
At State level, it is governed by statute. Nevada Supreme Court Rule 250 provides every capital defendant with two lawyers who must meet a series of guidelines demonstrating they are required to handle these types of cases. That is an additional expense not encountered in other cases. At the State appellate level, virtually every case is handled by the Office of the State Public Defender, including many where private counsel is present at the trial phase. In virtually every case at federal level, in habeas litigation, they are handled by the federal public defender. It would be extraordinarily rare for someone to have private counsel at the appellate level.
Senator Amodei:
Does a similar appellate framework exist for lesser criminal cases? Do we require the level of scrutiny and procedure for noncapital cases that we do for capital cases?
Mr. Greco:
No, Supreme Court Rule 250 is specifically limited to capital cases, including all time and experience requirements that do not apply to other types of cases.
Senator Amodei:
Is it accurate to say the expense is occasioned by the fact we have a circumstance which could potentially lend itself to a capital sentence?
Mr. Greco:
Yes, there are special costs because of the extra lawyer at trial level. At the federal appellate level however, the same issues can be raised as in capital and noncapital cases. Certainly at trial level there is a specific statute that requires a second lawyer and some other things, so there are more costs mandated by statute.
Kristin Erickson, Chief Deputy District Attorney, Washoe County:
Seeking the death penalty is the ultimate penalty and is a decision we as prosecutors take very seriously. In Washoe County, a committee considers potential death penalty cases. Sometimes the committee consists of 15 to 20 people and very lively discussion takes place during the consideration. We discuss all aspects of the case, factual, legal, and emotional. Is the death penalty appropriate for all murder cases? No, absolutely not, but for some it is.
Mr. Graham:
Keep in mind, whether it is the death penalty or a lesser sentence, most cases are investigated not only by the State with State-funded experts, investigators, and defense counsels. Sometimes investigators travel to foreign lands to investigate the defendant’s background to possibly come up with assistance in his or her defense. It is not in a vacuum. Whatever the committee decides, the main concern is whether defense is based on fact and not emotion.
James J. Jackson, Lobbyist
I want to clarify a couple of statements made by Mr. Greco. Having been a Nevada State public defender, I can tell you the position does not handle the appeal of every capital case. They simply do not have the manpower or the ability to take on each and every one. Private counsels are appointed and paid out of State funds through the statutory contingency fund, which is controlled by the Nevada State public defender’s office in terms of analyzing and processing the paperwork.
I can also tell you there are costs beyond that which include maintaining the office at State level and there are costs at the local level for counties that have public defenders as well. In my experience, having defended the Michael Hampton Sonner death penalty case in Lovelock a number of years ago [Nevada v. Michael Hampton Sonner], one of the requirements of Supreme Court Rule 250 is whether or not it is public or private counsel, we are required to keep general track of the time and effort expended in defending a case. Therefore, in terms of the effective assistance of counsel, those things can be analyzed by subsequent appellate counsel, postconviction counsel, and so forth.
The cost that would have been incurred had the county been paying $75 an hour in 1993, the hours expended by my office when I was a State public defender for the attorneys who handled the case in addition to myself just through the trial, would have amounted to $68,000, or close to that amount. In addition, Pershing County had to approach the Legislature in 1995 to ask for supplemental funding to defray the cost of that trial. The county had extraordinary expenses of over $90,000 and may have crossed the $100,000 line, which basically broke the bank in that county.
I felt it incumbent to clarify, in terms of the State public defender’s office, there are no funds readily available to defray the cost of capital litigation and in fact they must turn to each individual county they serve to seek extraordinary funds by way of ex parte motions for those costs. Certainly as Mr. Graham described, it can involve a substantial amount of travel both within the United States and occasionally outside the United States. Should there be a noncitizen defendant, it may well be necessary for those attorneys and their investigators to go elsewhere.
Senator Nolan:
I would like to make a statement. I appreciate having this debate any time it comes forward. In the 8 years I served in the Assembly, the death penalty was discussed every session. It is the reason I fought hard to be on the committee that reviews the issue and give myself another chance to ascertain whether or not it would change my feelings, emotions, or convictions. I am a confirmed Catholic and a practicing Christian. I know there are millions of Catholics, Protestants, Lutherans, Mormons, Episcopalians, Muslims, and people of faith who believe there is a purpose for the death penalty.
I look at this issue from my life experience having been a paramedic for 15 years responding to cases of assault and battery resulting in murder, and an investigator for the coroner’s office where I participated in murder investigations.
During the interim there was a lengthy bipartisan, bicameral review of the death penalty and every aspect was investigated in the context of how the State applies it. The interim committee rejected abolishment of the death penalty, but looked at a number of issues with respect to every aspect. Testimony that never came before the committee was from people who valued their own lives enough that they never committed a capital crime. We like to think those people do not exist in society, but perhaps they do. They are the people who will not come forward and say, “I decided not to kill a person because I valued my own life and I understand there is a death penalty.”
We also never heard testimony regarding the nine people put to death. With one exception, they willingly and voluntarily went to their deaths. There was never a discussion whether or not they finally came to terms with the judgment, accepted the fact they had committed the murder and killed innocent people, and willingly accepted the judgment imposed on them by the jury. Senator Neal talked about the machismo of taking another person’s life and Assemblyman Anderson said the ability to protect those who are least able to protect themselves is the true mark of society. Those two arguments could also be made on behalf of the victims. The pastor said the one thing on which we could agree is the cost factor. Although we must have that debate, I do not believe cost is a factor in the process of adjudicating or making a weighty decision on the fate of a person’s life. If it costs $1 million to make that determination, I think it is money well spent.
I challenge myself on the issue of whether or not the death penalty in this State is cruel punishment. I witnessed the execution of a murderer, but before doing so I read his file. The individual robbed a store, which was one thing, but then he stopped, duct taped two people together, locked the door, and spent the morning torturing them. It led to the killing of the young man with the girl duct taped to his back. While she was still alive he took a crowbar, put it in one ear and pushed it through her head and out the other ear. That is cruel and I have seen case after case of similar cruelties. I tell you, the manner in which the death penalty is administered is not cruel when compared to the way some individuals commit crimes against other human beings.
In conclusion, I have heard many Biblical justifications for the death penalty, starting with Romans 13. I do not think we or the judicial system play God. Only God has the ability to make eternal judgment not on the physical person and every religion would agree on this, but on the spiritual being that comes before Him by whatever means. I will continue to participate in this discussion and perhaps some day change my decision on it, but I am not there yet.
Thank you for your patience in allowing me to make that statement.
Senator Amodei:
The hearing on S.B. 217 is closed. We have some bill draft requests (BDRs) to introduce.
BILL DRAFT REQUEST 41-1280: Revises various provisions pertaining to gaming. (Later introduced as Senate Bill 266.)
SENATOR WASHINGTON MOVED TO INTRODUCE BDR 41-1280.
SENATOR MCGINNESS SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
BILL DRAFT REQUEST 23-1279: Requires certain correctional officers employed by the Department of Corrections to be certified by Peace Officers’ Standards and Training Commission before performing certain responsibilities. (Later introduced as Senate Bill 265.)
SENATOR MCGINNESS MOVED TO INTRODUCE BDR 23-1279.
SENATOR WASHINGTON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
BILL DRAFT REQUEST 11-1066: Allows adoptee who is 18 years of age or older to access files and records of proceedings concerning his adoption or birth and eliminates State Register for Adoptions. (Later introduced as Senate Bill 267.)
SENATOR WASHINGTON MOVED TO INTRODUCE BDR 11-1066.
SENATOR WIENER SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Senator Amodei:
There being no further business to come before the committee, the hearing is adjourned at 10:06 a.m.
RESPECTFULLY SUBMITTED:
Barbara Moss,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: