MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
April 30, 2003
The Senate Committee on Judiciary was called to order by Chairman Mark E. Amodei, at 8:00 a.m., on Wednesday, April 30, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4401, 555 East Washington Avenue, Las Vegas, 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:
Assemblyman David F. Brown, Assembly District No. 22
Assemblyman Richard D. Perkins, Assembly District No. 23
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Lora Nay, Committee Secretary
OTHERS PRESENT:
Judge Daniel P. Ward, Justice of the Peace, New River Township, Churchill County
Judge James M. Bixler, Justice of the Peace, Las Vegas Township (Department 4), Clark County
Jim E. Lopey, Assistant Sheriff, Washoe County
R. Ben Graham, Lobbyist, Clark County District Attorney, Nevada District Attorneys’ Association/Las Vegas
Lucille Lusk, Lobbyist, Nevada Concerned Citizens
Gary Peck, Lobbyist, American Civil Liberties Union of Nevada
Richard L. Siegel, Ph.D., Lobbyist, President, American Civil Liberties Union of Nevada, Human Services Network
Paul A. Grace, Lobbyist, Nevada State Rifle and Pistol Association
Stephen W. Driscoll, Lobbyist, City of Sparks, Sparks Redevelopment Agency
Kim Blandino
Howard S. Brooks, Lobbyist, Nevada Attorneys for Criminal Justice
Ed Irvin, Deputy Attorney General, Office of the Attorney General
Elizabeth Neighbors, Ph.D., Director, Lakes Crossing Center, Division of Mental Health and Developmental Services, Department of Human Resources
Chairman Amodei:
We will start with Assembly Bill (A.B.) 100, and then we will do A.B. 250.
ASSEMBLY BILL 100 (1st Reprint): Increases monetary limit of jurisdiction of justices’ courts. (BDR 1-855)
Assemblyman David F. Brown, Assembly District No. 22:
It is a pleasure to bring a very simple bill, A.B. 100, before you. In its current form, it raises the jurisdictional limit for justice courts in the State of Nevada from $7500 to $10,000. We are submitting an amendment (Exhibit C). All interested parties agree upon the amendment and the content of the current bill. We have members of the judiciary present, trial lawyers, and others who are in favor of this bill and the amendment.
The proposed amendment adds, “The Supreme Court shall adopt rules to provide for the establishment of a mandatory short-trial program for civil cases in justice courts.” I understand Justice Gibbons is testifying elsewhere at this time. He was in here to discuss the benefits of the short-trial program as implemented in the Eighth Judicial District Court. It has been very successful. It is a voluntary program. This is a cost-saving measure for the litigants. It will get matters in and out of the justice court much more quickly. It will give the justice court judges the means to streamline and expedite their trials and not take a couple of days for a very small matter. In most situations, cases will get in and out in an afternoon.
Judge Daniel P. Ward, Justice of the Peace, New River Township, Churchill County:
I am president of the Nevada Judges Association (NJA) and as an association, we are in full support of this bill as amended.
Judge James M. Bixler, Justice of the Peace, Las Vegas Township (Department 4), Clark County:
We are in support of A.B. 100 and the amendment and look forward to short jury trials. If we are going to have to do them, this is the way they should be done.
Chairman Amodei:
Thank you to both of you. We appreciate your involvement in NJA and in the bill.
Senator Care:
I also want to thank Assemblyman Brown for bringing the bill forward. When you get into the rule of pleading for damages in excess of $10,000, the justice court jurisdiction is up to $7500. The argument has always been if we pass this bill, it imposes a burden on justice court. I gather this is not the objection now; at least it is not a unanimous objection.
Judge Bixler:
It will not do any good to object. We realize the day has come and we are just going to have to handle it. It is a little gap, and is not really much of a gap, but there is no sense in beating a dead horse. This thing has been a long time coming.
We anticipate we are going to experience a lot of cases. One of the tools to handle this increase in cases is the short jury trial. These are the upper end of our jurisdictional limits. Though we should not, we will probably experience an increased number of jury requests. With the short jury trial program in place, we will be handling these cases, at least considerably easier than under current rules.
Chairman Amodei:
Please let us know if there is anything else needed as a result of A.B. 100 being enacted. The intent is not to try to impose something in a vacuum or without any follow-up or anything else. If you need more tools or something, we will be happy to assist.
Assemblyman Brown:
There was some discussion about the effective date of January 1, 2005. In order to implement and design by the Nevada Supreme Court, that date probably ought to remain. The design work by the Nevada Supreme Court would proceed immediately. The implementation of the short jury trial program, as far as the effective date of January 1, 2005, is fine with me.
Chairman Amodei:
With no further testimony on A.B. 100, we will close the hearing.
SENATOR WIENER MOVED TO AMEND AND DO PASS A.B. 100.
SENATOR CARE SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NOLAN AND TITUS WERE ABSENT FOR THE VOTE.)
*****
Chairman Amodei:
We will now open the hearing on A.B. 250.
ASSEMBLY BILL 250 (2nd Reprint): Makes various changes regarding certain acts relating to terrorism, weapons of mass destruction, biological agents, chemical agents, radioactive agents and other lethal agents, toxins and delivery systems and requires resort hotels to adopt emergency response plans. (BDR 15-49)
James E. Lopey, Assistant Sheriff, Washoe County:
I am currently our homeland security representative and the vice chair of the Washoe County Local Emergency Planning Committee (LEPC). I am representing the Washoe County Sheriff’s Office from the Reno/Sparks area and I have comments on A.B. 250.
In regard to terrorism the citizens of Washoe County are well aware of the potential threat, both internationally and domestically. The Washoe County area has been very active during the last 3 to 4 years in acquiring the necessary personal protective equipment, and the type of equipment needed to combat terrorism. We also have over 100 members on a citizen’s homeland security counsel. Assembly Bill 250 is seen as complementary to all previous efforts in the Washoe County area in order to combat terrorist-related infractions. The emergency response plans included in the bill for hotel/casinos are deemed appropriate as well. We enthusiastically support A.B. 250.
Ben R. Graham, Lobbyist, Clark County District Attorney, Nevada District Attorneys’ Association/Las Vegas:
David Roger, Clark County district attorney, participated informally and formally in preparing this legislation. The Las Vegas Metropolitan Police Department is supportive and also has participated. We are not creating new crimes. We are creating an offense involving things we understand as criminal in the terrorist vein. Everything is in one place and logically placed. Hopefully, we will never be in a position where we are going to have to utilize this, but if we ever got into that position, we would be sorry we did not have it. There is going to be a minor amendment offered, which is okay from our standpoint because it is something we have been wrestling with since this started. We do support A.B. 250 and look forward to working on it if it needs to be further amended.
Assemblyman Richard D. Perkins, Assembly District No. 23:
Assembly Bill 250 is a bill very similar in its intent and scope to a Senate bill you already processed earlier this session. As you might be aware, I have spent a considerable amount of time during the past year working as a member on the National Conference of State Legislatures task force on protecting democracy. As a result of the work of the task force, I became aware of other states’ actions to address the terrorism threat. The provisions of A.B. 250 are a combination of the best ideas from other states as well as the addition of the kind of creativity unique to Nevada.
State policy makers throughout the nation are now struggling with the difficult task of providing their constituencies with a sense of comfort and safety while at the same time respecting civil rights and freedom of movement. The State of Nevada and its local governments are keenly aware of the importance of homeland security. Despite budgetary challenges, many of our local jurisdictions have implemented homeland security practices and policies in response to the threat of terrorism.
Assemblyman Perkins:
While our local governments and law enforcement agencies have done a great job in preparing to respond to possible terrorist threats, it is now time for legislative assistance to them by providing the tools needed to meet the challenge. At the same time, I recognize it is critical any policy on terrorism must protect the civil rights of innocent citizens.
Assembly Bill 250 is the first step in providing Nevada’s public safety agencies with the tools they need to combat terrorism. There is other proposed legislation addressing various components of a terrorist threat such as a bill providing for a public health response to the effects of a biological, chemical, or radiological attack. In addition, I have introduced another bill taking a comprehensive approach to protecting the State’s infrastructure and its citizens against terrorism.
For now, I will present a quick overview. Assembly Bill 250 generally provides for criminal offenses and penalties related to terrorism, through the use of weapons of mass destruction, biological agents, chemical agents, radioactive agents, and other lethal agents, toxins and delivery systems and provides an additional penalty for an offence related to terrorism. It further establishes, as murder of the first degree for murder committed with the intent to commit certain acts of terrorism making it an aggravating factor in a death penalty case. Furthermore, A.B. 250 provides for no statute of limitations for the prosecution of certain acts relating to terrorism. The bill also creates the crime of assisting a terrorist act and makes the crime a category A felony. In addition, the bill makes it a category B felony to knowingly hinder, delay, or obstruct the prosecution of a terrorist.
Assembly Bill 250 defines the crime of the use of a weapon of mass destruction, biological agent, chemical agent, radioactive agent, other lethal agent and any toxin, and provides penalties based on whether the act causes substantial bodily harm or death. The bill also makes it a crime to develop, produce, transport, or transfer a weapon of mass destruction and makes it a category A felony.
Assembly Bill 250 criminalizes the act of making a terrorist threat, conveying false information, or carrying out a hoax involving terrorism. Finally, A.B. 250 requires Nevada’s resort hotels prepare emergency response plans and file them with local fire and law enforcement agencies and with Nevada’s Division of Emergency Management. After the tragic loss of lives resulting from the Las Vegas fires in the early 1980s at the MGM Grand and the Las Vegas Hilton, Nevada developed the toughest fire safety standards in the nation. While I hope our resort hotels never become targets of terrorist attacks, it is important they develop comprehensive response plans before any are needed.
I have frequently said we should not glamorize those who threaten our way of life by calling them terrorists. They are nothing but criminals and thugs who should know they will not be tolerated in our State. You may recall an article in the Las Vegas Review-Journal detailing a number of terror suspects, arrested in Detroit, who planned to target Las Vegas and other recreational areas.
There are a number of Assembly amendments to the original version of A.B. 250 taking into account many of the concerns people had about not infringing upon people’s civil rights. Defining an act of terrorism is probably the most difficult thing. I am very proud of what happened in the Assembly committee and the wording they came up with to try and allay the concerns about infringing upon civil rights. They did a very good job in section 7, subsection 2, where it specifically says, “As used in this section, ‘coercion’ does not include an act of civil disobedience.” Civil disobedience does not make a terrorist and we did not want to capture it in such a broad net.
We borrowed language from Washington State in section 1, subsection 6, where it states:
It is the intent of the Legislature: (a) To strengthen the laws of the State of Nevada to better protect the health and safety of this state and its residents by providing the greatest measure of protection from acts of terrorism; and ...
and probably most important:
(b) That this act be interpreted to provide the greatest measure of protection for the constitutional rights of the residents of this state, including the right to petition federal, state and local governments and to exercise rights under the First Amendment to the Constitution of the United States and Section 9 of Article 1 of the Nevada Constitution.
I thought it was very important to state that specifically in the bill so it would be understood we are not trying to infringe upon civil rights.
Assemblyman Perkins:
As much as it is a concern for us to protect civil rights, the civil rights we have in this country are protected by the clauses of which I just spoke. No law we enact can change the U.S. Constitution which certainly prevails in any of those cases. The Nevada Constitution is not an obstacle on the pathway for our legislative duties. It is the pathway. As long as we always bear this in mind, we will be able to enact laws to get to these types of extraordinarily heinous crimes and still protect the rights of those who need the protection.
Mr. Graham:
In the process of working with these two pieces of legislation, I have heard people rear the ugly head of a boogeyman that is going to put us in some type of a civil restraint. I have taken a very careful analysis. You are not going to find a law enforcement community looking for devices to do something not intended. Under the circumstances, the way mass destruction and terrorism are described, it will be evident of the type of crime we are going after, if and when they happen. Hopefully, we will not be using this bill, but if we do, we are going to be sorry if we do not have it.
Lucille Lusk, Lobbyist, Nevada Concerned Citizens:
I am here in enthusiastic support of A.B. 250. We are very interested in having a proactive approach to address any potential act of terrorism that may take place in our state. A great deal of work has been done on this bill to make sure it does precisely that and at the same time does not infringe on constitutional liberties. Assemblyman Perkins has been very sensitive to the issues that have been brought to the fore.
I would like to offer a brief and friendly amendment. I have spoken to Assemblyman Perkins about this amendment and believe he considers it a friendly one as well (Exhibit D). It is a simple one; it addresses the definition of “Weapon of mass destruction” in section 14. The amendment changes the wording “’Weapon of mass destruction’ means any weapon or device that is designed or intended to create a great risk of death or substantial bodily harm to more than one person.” More than one is two and so we would like to make a change to say “... substantial bodily harm to large numbers of people.” The purpose of this change is to ensure a correct interpretation of “Weapon of mass destruction” will include only those weapons designed or intended to kill or seriously injure masses of people as the very term “weapons of mass destruction” implies.
Senator Care:
I know you have gone over this with some thoroughness. We had the same discussion in this committee about one or more persons. Somebody offered an amendment of 10 or more persons. To you, what is a large number of persons? Last session we had a bill, something about using a firearm near a school. Sure enough, just after we adjourned there was a case of somebody who fired a weapon. This committee has wrestled with this sort of language before.
Mr. Graham:
The one or more is utilized clear through our statutory form, but in light of this large number in the terrorism bill, if I am a zealous prosecutor, I would say four is a large number. If I was a zealous defense attorney, I would say ten. It is a question of facts. I do not see a problem.
Gary Peck, Lobbyist, American Civil Liberties Union of Nevada:
I am the executive director of the American Civil Liberties Union (ACLU) of Nevada, 325 South Third Street, Las Vegas, 89101. I will be mercifully brief. I have enormous respect for Mr. Graham, but I, like most people who believe in the U.S. Constitution and the Bill of Rights, am not terribly persuaded by the argument that goes something like, “We are the government, trust us.” The fact is this is a fairly simple matter for this committee and for the Nevada Legislature as a whole. We worked very closely with the Assembly, as did other individuals and groups. We helped them draft a bill appropriately appreciative of and sensitive to the legitimate concerns of government to address the problems of terrorism in a manner promising to actually make us safer and more secure, while at the same time being appropriately respectful of both the federal and Nevada Constitutions, the Bill of Rights, and the rights of individuals, not only to engage in fully-protected activities under the First Amendment but also to engage in acts of civil disobedience which have a very rich, very long, and very storied history in this country. Acts by people like Martin Luther King and Rosa Parks who, under this bill with this language, could be prosecuted. The issue is not whether or not Mr. Graham would prosecute such people. The issue is an institutional one of policy and law and not one of individuals and personalities and their motivations.
I would implore this committee and the Senate to adopt the unanimous and enthusiastic language adopted by every single member of the Assembly after careful consideration and deliberation. This is a very simple call. I am mystified at why the debate at this point, and I would urge you to do the right thing, the right thing by Nevadans, and the right thing given the long, very rich, and very storied history of respect for individual rights and freedoms in this State; a history of which we can be justly proud.
Senator Wiener:
I am curious, what is it you are challenging?
Mr. Peck:
I am asking you to adopt the language in A.B. 250, which is language adopted unanimously and enthusiastically in the Nevada Assembly. This is different language than the language in the bill passed out of the Nevada Senate and is rife with problems. Their language is vague and frankly it is sloppy. It was adopted wholesale from the U.S.A. Patriot Act, which people on both sides of the aisle in U.S. Congress today, people who voted for that bill, are saying must be revisited, tightened up, cleaned up, and fixed for precisely the reasons we have articulated in the Assembly and are seeking to articulate here for you, Senator.
Chairman Amodei:
Mr. Peck, when you say you are mystified by the debate, you do understand that is the nature of the process in this branch of government, is that correct?
Mr. Peck:
I do indeed. I am very disappointed in the Nevada Senate, your Senate Committee on Judiciary and the Senate as a whole passing out S.B. 38, without adopting the kinds of amendments we requested.
SENATE BILL 38 (1st Reprint): Establish certain penalties for activities related to terrorism. (BDR 15-89)
I do understand that debate is an important part of the process. The Assembly passed a good bill which every opinion maker and every single Assemblyperson unanimously and enthusiastically adopted, and properly so. I would urge this committee to move in the same direction.
Richard L. Siegel, Ph.D., Lobbyist, President, American Civil Liberties Union of Nevada, Human Services Network:
The first page of my prepared comments (Exhibit E) are to pay tribute to the process in the Assembly that took care of almost all of the civil liberties’ issues we had raised. This morning Assemblyman Perkins articulated why we prefer the language of A.B. 250 to S.B. 38.
The second page of my comments speaks to some remaining lesser issues. The language on “impairment of any building,” refers also to violence, but I was struck with the idea of an act of arson, in which somebody in the building could be covered by the reference in section 7. I would like some review by this committee to the reference of the impairment of a building to distinguish it from an ordinary act of arson in which somebody may be in the building. There is an overlap that should not be there.
This is a death penalty bill and adds reference to terrorism in terms of our death penalty legislation. The ACLU is opposed to the death penalty and we cannot let this moment go by without reiterating our opposition to the death penalty and to the fact we are not acquiescing to the broadening of the death penalty. Another reason to emphasize the death penalty point is for those of you who will be voting on other death penalty bills. Please remember you will also be voting for this expansion of the death penalty, a very significant expansion of the death penalty. When somebody asks you about the mentally retarded bill, or the juvenile bill, or the three-judge panel bill, please remind him or her, with my encouragement, you have voted for a significant expansion of the death penalty bill in relation to the terrorism bill.
A significant point, referring to section 22, including the words “... frighten ... or distress any person,” is what are actions that distress or frighten people? I brought an editorial from the Las Vegas Review-Journal titled “Our own little police state” which was an attack on the original version of A.B. 250 (Exhibit F). Much of the focus of this editorial was on the language in section 22 of distressing and frightening people. Clearly, we have to eliminate those kinds of words. They make the bill vulnerable to ridicule. Genuine threats, acts of violence, and so on, are one thing, but to act or to distress or frighten people is just too overbroad and vague. We would very much appreciate an amendment removing those two particular words. I looked at every word in that section. We distress or frighten each other, particularly distress, each other, of course on all kinds of things, but even frighten is just too overbroad in terms of its meaning. I would like those two words taken out.
I commend the process that has been taking place and I hope A.B. 250 will substitute for S.B. 38. The purpose of S.B. 38 is well taken care of. We care about terrorism too. We think A.B. 250 is an astute approach for the state of Nevada.
Senator Care:
A citizen can commit a crime and be arrested even when undertaking an act of civil disobedience. In the way this bill is written, is it possible for someone to commit an act of civil disobedience involving substantial destruction of a building or infrastructure or whatever? I can very easily see a prosecutor could say something is an act of terrorism. Can you see where I am going?
Dr. Siegel:
I do, and I do not see a problem here as to the building point I am making. An act of civil disobedience is an act violating the law and normally somebody should be prepared to accept a criminal sanction for that kind of an act. Normally civil disobedience involves a kind of defiance rather than an act of destruction.
The closest of something coming near to this kind of civil disobedience would be the kind of act that happened during the Jarbidge situation. Jarbidge is a somewhat sensitive area, and yes, property was damaged. The definition would involve the substantiality of the damaged property. Nobody was blowing up the Forest Service building. If they were blowing up the Forest Service building, in a political cause, it would be an act that could qualify as an act of terrorism. I do not know all the facts of Jarbidge but they were affecting the building of a road and arguably though there was damage to the infrastructure, it was clearly not an act of terrorism. I was struck more by the overlap with arson than with civil disobedience in terms of the building aspect. The original bill, including the language we had to get rid of as I recall from S.B. 38, involved interference with governmental activities, which would have easily covered Jarbidge, and would have easily covered significant labor disputes and environmental demonstrations.
Senator Care:
There is a difference in the definitions of “material support.” In section 9 of S.B. 38, you could argue is perhaps a more vague definition as opposed to what is contained in section 10 of the Nevada Assembly bill. Section 9 in S.B. 38 began as what is more or less section 10 of A.B. 250. Do you have any thoughts on the differences in the definitions of “material support”?
Dr. Siegel:
No, I did not come prepared to speak directly to the point of “material support.”
I would like to respond by asking you to be clear about whether we have properly differentiated the penalties in this bill in relation to aiding and concealing, which could be very indirect. People have been prosecuted because of indirect connections. I have an envelope on my table concerning the rebuilding of homes in Palestine. I gave to that organization once because I oppose the Israeli policy on tearing down homes in Palestine. I gave money but I honestly have no way of knowing if the money I sent to this Palestine reconstruction organization would go to rebuilding homes in Palestine rather than for aiding terrorism. I do not have a private investigator to tell me. I gave a check once but I have hesitated to do so again. It is in this sense I am really concerned about the language on aiding and concealing, I understand in principle, it is well established in law. We have criminal sanctions against aiding and concealing, but now we are raising the threshold of penalties. I hope it is understood, apropos of what Gary Peck was saying, about trusting prosecutors. There is reason, at the national level, not to have trusted prosecutors. Innocent immigrants, who gave money to private organizations, are now being prosecuted for aiding terrorism. They would have had no way of knowing what the money they were contributing was doing. That is the kind of problem remaining in this area and is a very great concern. Yesterday, the U.S. Supreme Court ruled both legal and illegal immigrants could be detained without counsel, which is a sign the courts are not going to be there on these civil rights issues. The U.S. Supreme Court, by a 5 to 4 majority, is going to accept the worst of the prosecutorial decisions and convictions. That is the reality, as of yesterday. We knew it was going to happen.
Paul A. Grace, Lobbyist, Nevada State Rifle and Pistol Association:
I try to represent the 2700-odd members of the Nevada State Rifle and Pistol Association. I gave you a sheet of paper and please read it if you get the time today (Exhibit G). Recently, with this first part of the year, I managed to become a member of the Washoe County Sheriff’s Citizen Homeland Security Council. I made a mistake in the second paragraph; I typed “defense” instead of “security,” for which I apologize to Jim Lopey. Our group studied terrorism to the point several of us started joking about belonging to Club Paranoia because of the severe problems that could happen. One of the areas we covered was weapons of mass destruction for dummies and was one of our course categories taught by a master sergeant in the 92nd Civil Support Team.
Mr. Grace:
I was unable to influence the definition in S.B. 38. What I reference in my notes is to use the federal definition and I appreciate Lucille Lusk’s comments. A weapon of mass destruction by the federals is in no way meant to mean any small group of people. For example, in talking to a Bureau of Alcohol, Tobacco and Firearms person with the great name of Tom Cannon, I learned someone taking an illegal submachine gun with a 50-round clip and shooting 20 or 30 people is not a weapon of mass destruction. It is a terrible event, a la Mr. Purdy, who quite a while back shot up a school in California. Weapon of mass destruction means just what the dictionary definition of mass means and is something seriously affecting a large percentage of the population in any given area. If you read the red portion of the note I gave you, the “weapon of mass destruction” definition specifically includes toxins, gases, disease organisms, and radiation reasons.
I brought a copy of S.B. 38 into one of our last classes and a number of the class members agreed it was a big error, including Senator Raggio’s doctor who sent the Senator a note on the subject. Neither the doctor nor myself apparently had an effect on S.B. 38. This bill is a lot closer. Section 7, subsection 1, paragraph (a) of A.B. 250 is fixed. More than one person is scary because it could be misinterpreted by an ill-spirited public servant to include somebody who picked up a nice sharp rock and hit two or three kids with it. Is that a weapon of mass destruction because he injured three people?
Also, the bill-drafting department pointed out to me a definition should be placed fairly early in a bill, and then there is no need of having repetition all through the bill. In my count of this bill, there are at least six places where there is repetition of more than one person or repetition of mentioning all sorts of other things other than the definition in section 14, which would have covered all of those other areas in the bill if the definition had been used at the start. You do not need to repeat chemicals, radiation, toxins and poisons, etcetera, because the federal definition covers them nicely. I got sensitized to this by the class I went to and I am still trying to figure out why more than one person ever showed up. I would have expected our bill-drafting department to mirror the federal definition.
I talked to Jerry Bussel, Special Advisor on Homeland Security, Office of the Governor, a couple of weeks ago and he agreed we should mirror the federal definition as much as possible and not look so paranoid. We do not want someone bringing up weapons of mass destruction, when they were not, and causing nervous people not to come to Las Vegas or Reno. We have enough trouble with the economy in the State right now without scaring anybody by bringing up a wild and broad definition of weapons of mass destruction. I would be happy to work with you or anyone. I am not a super expert, but I took the whole course. We did not get paid for it, but we did get a big fancy diploma saying we know more than the average person. I would be happy to help. I have the massive course material and Jim Lopey could supply you with the total package, if you are really interested in reading it all.
Stephen Driscoll, Lobbyist, City of Sparks, Sparks Redevelopment Agency:
I am the assistant city manager for the City of Sparks and I will be testifying today in my capacity as the emergency manager for the City of Sparks. We are in support of A.B. 250. The prior testimony from the Assemblyman Perkins, Mr. Graham, and Mr. Lopey mirror what we have. I would like to move toward section 26. One of the things we deal with in sessions is the consequences of sections in the future. What is contained here will be positive future consequences. All of the jurisdictions within the state of Nevada are working on mitigation planning as required by Federal Emergency Management Agency (FEMA) for future funding after the fact of things such as floods, earthquakes, or terrorists acts. One of the things we are working on is the FEMA act. We are required to produce a final report and plan in November 2004. It requires us to work among ourselves to understand the resources and planning of all of the participants inside our community.
Section 26 provides for the resorts in our areas. We will have the largest numbers and concentrations of people where things may need to happen in an emergency plan, and we will now have information up front. We can mitigate and consolidate efforts to take care of future events. We can go in and do all of the planning related to weapons of mass destruction, related to terrorism acts, or related to other things. This section is a very positive section for what we are trying to accomplish and meets some of the federal mandates. In our communities, where we take emergency management very seriously, the planning and preplanning helps us the most when an event does happen, if it happens. Section 26 gives us the tools to do better planning up front.
Senator Care:
In Clark County and elsewhere where large numbers of people would congregate such as the airport, Thomas and Mack Center during sporting events, schools, and shopping malls, are there response plans existing for those already? What do we do about them?
Mr. Driscoll:
With the activities we are working on, we are trying to get information wherever possible. Certain private businesses are on their own to do emergency planning. Some are much better than others. Here in the north, the casinos have done a good job of doing security plans and those types of things. This takes it to the next step. At least this component of the community will be covered. We will be commingling information and we will be working together. This should be a catalyst for organizing to conform because they will see it is beneficial.
Senator Washington:
Do your plans also include major events hosted or promoted by a city or county?
Mr. Driscoll:
The mitigation planning, we are doing by FEMA requirement, deals with all possible events that could happen creating a disaster situation. Specifically, in the City of Sparks’ plans, we are not only dealing with weapons of mass destruction, terrorism, earthquakes, and the like, because we have large special event venues on our Victorian Square. Clearly they are one of the component pieces on which we have done extensive preplanning. We are prepared in case there is an event. The worst-case scenario could be where we have an event going on with a couple hundred thousand people on our Victorian Square and have an earthquake, not to mention a terrorist act or other thing.
Senator Wiener:
When the commission on school safety and juvenile violence met, we brought forward the legislation requiring school safety plans be developed in accordance with each school district as well as with the Nevada State Board of Education, which are in place. I looked at the provision and saw “shall” language which is mandatory language. What would happen to a resort that might not submit a plan according to this statutory language?
Mr. Driscoll:
There are no criminal penalties set forth. It is a question I had not considered. Since it is codified in Nevada Revised Statutes (NRS) chapter 463 of a resort hotel failing to comply would be subject to some discipline by the gaming control board. Other than that, there is no consequence.
Senator Washington:
Mr. Wilkinson, I have the same concern. Subsection 3 of section 26 says these plans are supposed to be held confidential. What happens if the plan is disclosed? What is the penalty if an employee discloses it to a potential terrorist?
Bradley Wilkinson, Committee Counsel:
This section does not set forth any criminal penalty or prohibition on a person releasing a confidential plan. This is to clarify it would not be a public record and subject to public inspection rather than any criminal penalty associated with the releasing of information.
Senator Titus:
Is there anybody else required to do a plan except for the resort hotels, government buildings, Polo Towers, a big condominium, Turnberry Place, or anybody?
Mr. Wilkinson:
The bill just applies to resort hotels right now although there may well be other federal laws requiring somebody to formulate some type of plan. As far as State law goes, this is the only provision applying to resort hotels.
Senator Titus:
How about this building? Do we have a plan for this building?
Dr. Siegel:
There is another one of the terrorism bills which creates a committee on homeland security for the State of Nevada. It not only focuses on a comprehensive perspective on government infrastructure, but reaches energy facilities and a whole range of other facilities. Whether it reaches all kinds of private facilities, I do not know, but I recall government and energy facilities.
Senator Titus:
That would be like the university? Would it be covered?
Dr. Siegel:
The university would be government.
Senator Titus:
I am thinking, how about the Fashion Show Mall? That would seem to me to be a great target. It would not be only a resort hotel, or a Super Wal-Mart, or every single Starbucks in the country.
Senator Nolan:
I have sat on the Clark County Local Emergency Planning Council, LEPC, and they have a LEPC council in Washoe and even here in the Carson City area. There are design plans for responses such as Stephen Driscoll described. Every emergency contingency and local emergency planning council is trying to adjust those plans to bio-terrorists acts. Traditionally they have been developing the mass-casualty incident plans. Whether an event happened at a mall, or other large venue, they have been designed to respond to those. Now they are gearing up to respond to anthrax issues and large quarantine issues through the local fire department. Even through Hazardous Materials, federal Occupational Safety and Health Administration laws have requirements to have response plans for buildings like this throughout their life with safety plans.
In talking to Mr. Bussel about this and the Nevada State Emergency Response Commission, everybody is trying to gear up at this point. Nobody is quite where they need to be. Where they would really like to be, is to be able to handle mass terrorism incidents on a preventative side. Even our security officers in the malls are looking for people who are scouting their malls for a potential terrorist site. No, they are probably not there yet, but that is in the plans. There are a lot of organizations coming up to speed on this, but a lot of places are not where they would really like to be just yet.
Chairman Amodei:
With no further testimony on A.B. 250, we will close the hearing. Ms. Hansen is testifying in another committee but she did want, as part of our record, that she and the entities she speaks on behalf of think the definition of terrorism in A.B. 250 is the best developed this session. That will be made a part of our record for this legislative day.
We will now open the hearing on A.B. 103,
ASSEMBLY BILL 103 (1st Reprint): Requires Director of Department to submit list to each county clerk providing certain information concerning offenders who were released from prison or discharged from parole during previous month. (BDR 14-532)
Kim Blandino:
I am a private citizen and have been relegated to a position of private law enforcement because the law in this regard is not being obeyed. I prepared written testimony for the record (Exhibit H) and supporting information (Exhibit I).
To provide you with some background, this was originally brought before the Assembly in 1999 and now has been brought back again in 2003. The only reason this is brought forward is because I, as a former inmate of the Nevada Department of Corrections (DOC), demanded compliance with NRS176.335, subsection 4. When I was released, there was no proof I actually completed all of my time. In the sense of court proceeding, this proof is best evidence, which would be a certified copy of the judgment of conviction (JOC) signed by the director and stating I was in fact discharged and had fully served my time.
After months and months trying to get the DOC to comply, the only thing they did was put in a bill draft request to do away with the provision, which they have not been obeying for decades. You will see in my supporting information as “exhibit A,” a cover letter attached to the package I put together. Ironically, this was a letter of February 19, 1999, the very day I testified. The DOC got in touch with Clark County and said they were going to be forwarding Mr. Blandino’s JOC pursuant to, and they cite the wrong statute, but it was pursuant to the statute I referenced. It took me a couple of weeks to get the Clark County clerk to file it. I had to tell them they had better check with the district attorney to find out they had a mandatory duty to file my JOC.
As in a civil court action, the purpose of this is for the satisfaction of judgment. However, this provides certain purposes beyond a civil action because it is done in a criminal context. The purposes of this are multifold, none of which the DOC has any interest in. I was given a 6-year prison term. As you know, by statute, there are good-time provisions for good-time credits. I wanted to have something established showing that even though, on its face my sentence was due to expire sometime in 2000, I had achieved good-time credits and was properly released. I got a copy of my JOC, which was certified and properly endorsed by the director and would carry it on my person at all times just in case some police official or peace officer would question the fact of my proper release. By the way, as an aside, I am still challenging my conviction and it is going back to the U.S. Court of Appeals for the Ninth Circuit on a habeas action. I still have high hopes this conviction will be overturned.
Mr. Blandino:
Throughout Nevada’s history, there have been people who have been wrongfully released, escaped, or released on parole but given a JOC, which is how I found out about this statute. In the prison law library I read about a guy who was released on parole and given a certificate of discharge stating he had completed his sentence. The only way this mistake was discovered was when he committed a misdemeanor violation and was brought back to prison. He tried challenging that based on his certificate of discharge, which has all the legal significance of Dan Rather claiming Al Gore won the 2000 presidential election in the newscasts. If DOC had followed this provision, they might not have released him saying he had completed his sentence and then realized he was on parole. There have been other releases where the persons have actually not done their time. These mistakes can be caught if there is accountability.
I understand there has been an amendment offered, but to show you how poorly considered this legislation is, I direct your attention to “exhibit B” of my presentation. The sheriff is required to deliver, in triplicate, certified copies of the convictions to the director. The DOC did not ask for that and with eliminating NRS 176.335, subsection 4, they would have an extra copy. They are requiring the clerk to prepare an extra copy and they are going to do nothing with it but put it in the Division of State Library and Archives. When you have thousands of prisoners sentenced to the DOC every year, this can have a financial impact and it is wasteful and redundant as well.
I submitted my “exhibit C” because Glen Whorton came before the Assembly Committee on Judiciary and lied and misrepresented before the committee that this request cannot be complied with because it would cause extra costs and another person to be assigned to do that duty. Well, after I advised Rex Reed, Administrator, Offender Management Division, it would be a felony if he concealed these documents from me, I asked for specific documents. He sent me some JOCs which I have included as part of my exhibit C. They were endorsed by Rex Reed and show discharged inmates. I got inmate James Wesley Thomas’s, which he signed on March 7 and I received some time after. Another one is of inmate John Wesley Chandler who was released on July 30, 2002, and prepared by Rex Reed on March 7, 2003. Therefore, this can and should be done but DOC has not been doing it. To me it is complete audacity to come before a committee and say, “Look, we have not been obeying this law for decades so why don’t you just change the law to conform to our practice.” It ought to be shot down, just on that basis alone.
Mr. Blandino:
You have people talking about terrorism and you have to rely on people to be diligent prosecutors to do discretionary duties. Our brothers and sisters, daughters and sons, and husbands and wives have died over there in Afghanistan and Iraq to protect the freedoms we have in this country. Part of those freedoms are those in which the people of a jurisdiction can, through their legislative officials, demand civil servants obey all laws. When they do not obey a mandatory duty for decades and then want to change it to the detriment of citizens, what kind of freedom do we really have? How safe and secure can we be? We all know there were people trying to raise a call before September 11, 2001 about the danger of taking a jet and flying it into a building. People in the Federal Bureau of Investigation (FBI) tried to shout as loud as they could there was a danger.
Assembly Bill 103 will probably not cause destruction of people and everything, but it will hurt. I have a good friend whose mother was killed. The inmate is coming up for parole. With this proposed legislation, as it now stands, if the JOC comes back as it is properly supposed to, she can see if something has happened to this guy, go down to the county clerk and find out he died in prison, let us say for example. She then has no more fear of this guy being released and doing some harm to her.
To show you how poorly this has been thought out and how poorly considered it is, the proposed amendment requires the director to send the name of an offender who was released or discharged from parole during the previous month, but it does not cover the provision in subsection 4 where somebody has died or has been legally discharged otherwise. What is a serious mistake and most blatant, is there is no provision for the county clerks to put this list on public record. Therefore, and I have talked to Shirley B. Parraguirre in the Clark County clerk’s office, they do not get these records. Glen Whorton misled the Assembly Committee on Judiciary. Douglas County and the Douglas County clerk and the Carson City clerk, Barbara Reed or Alan Glover, I do not know which is which at the present time, all get those lists. The Clark County clerk could not care less about getting this list and is not demanding it from the DOC. I am fairly confident if the DOC sends these lists to the Clark County clerk, they will just be thrown in the trash can if they maintain their present attitude.
Mr. Blandino:
There must be a provision for the clerk to somehow record this information so the public can look at it if they so choose. If you choose to pass this bill as is, there must be a provision added so people can go to the county clerk and find out if someone was released, did she or he die in prison, or whatever. It really should be made a part of a particular criminal record. If you were to include a provision in which the clerk would have to match the name, and the case number, and then file some kind of sheet of paper so the criminal record which stated this person was released on such and such a date, this would not be as objectionable as what we are doing here. This thing should not be changed and the DOC should be forced to comply.
I must tell the committee that I have filed a lawsuit and it is working its way through the federal court. I filed it in state court but it was removed to federal court. I am suing to have this thing enforced. I have asked for the attorney general to investigate the criminal aspect of this. It is a dereliction of their duty on the part of the DOC. They have refused to investigate. I have tried to go to the district attorney who will not investigate. What we have is rule by men, not law, and this is entirely inappropriate. The ironic part is, here I am, a former inmate, trying to force government officials to do those duties, which they are required to do by law.
In the past the DOC has come forward to this committee and said one thing and a couple of days later they have changed their testimony. In regard to blood testing, one minute they said they were not doing it before release and then they come back sometime later saying they were doing it. The information coming out of this department cannot be trusted and is symptomatic of the fact we have laws on the books they do not obey. For decades they just let these laws sit and when one individual comes and says the law has to be obeyed, what is their solution? “Hell, we will go put a bill draft request and we will have the Nevada Legislature say we do not have to do that any more.” If you take away the accountability of civil servants, this is as dangerous in my view as the terrorism you were debating.
Senator Washington:
Mr. Blandino, we have a timeline, do you have conclusions or any remarks you would like to conclude with?
Mr. Blandino:
This bill is very ill considered. If you do want to amend it to make it a requirement for a county clerk to go ahead and comply, I would be in agreement. If you are going to have the list, force the county clerk to record it somewhere so the public can get a copy of it. I would say anything this committee does not do, or does, it will not affect my lawsuit. This is clear black letter law of what they are supposed to be doing.
Senator Washington:
We are the Legislative branch of government so we do not deal with the Judicial branch per se, except for their raises. When it comes to lawsuits, you will have to deal with the Judicial branch and the judges.
Mr. Blandino:
You do have the remedy for the impeachment of the director, if you so choose.
Senator Washington:
We will take up that issue later.
Mr. Blandino:
I would add one last thing. The Assembly Committee on Judiciary sent a letter expressing their extreme displeasure because DOC was not following the law and did not bring this issue to the Nevada Legislature prior to now. This committee should at least do as much. Otherwise, you are implying the law has to be obeyed by private citizens, but governmental officials have the option.
Mr. Graham:
I appreciate the frustration of the witness from Las Vegas. I have been working in our district attorney’s office for 26 years. During this period of time we have had some real problems with JOCs. If we look behind the purpose for what was adopted and then look to see if possibly the system and the process is overgrown with what is required and although we should give some notice, there is notification to victims if people are paroled or if they are released after flatting out their time. I would ask, before the committee considers amending this bill at this time, to give us an opportunity to get with Mr. Whorton and also with the clerk’s office to make sure we are serving the needs of the citizens and the incarcerated persons and they are being treated fairly. We would ask you reserve ruling on this until then.
Senator Washington:
We will do so if you would just get together with Mr. Wilkinson and Mr. Anthony.
Senator Wiener:
Based on the testimony just heard, could you briefly and understandably explain to this committee the distinction between what we are repealing in subsection 4 and what we are adding in section 2?
Mr. Graham:
What we are doing affects the actual certified copy. To be honest with you, from time to time we have a prisoner sitting in the county jail waiting for the JOC to get prepared, signed, and certified. Traditionally they were taking them on minute notes, but then they would get the JOC and it would vary a little bit from the minute notes so then it would have to go back and refigure the amount of time. The physical document may be creating some problem due to volume. I think what section 2 would essentially say is we are going to provide all the same information, or you should, and maybe would not with less labor intensiveness to provide that information in a different form. We probably should have a comment from the clerk’s office as well as from the DOC.
Senator Titus:
I have gotten very confused. Are you for or against this, and is Mr. Blandino for or against it as it appears before us right now?
Mr. Graham:
I am primarily asking you for some time to clarify what needs to be done. This is not really my dog, but it ran by me.
Mr. Blandino:
I am definitely against this.
Senator Washington:
Mr. Graham, do you know who or where this bill comes from?
Mr. Graham:
Glen Whorton testified on it, but there is a lot of confusion over the JOCs so I would like an opportunity to locate those that need to be in on this. I do not know why they are not here today.
Senator Washington:
We will close the hearing on A.B. 103 and open the hearing on A.B. 156.
ASSEMBLY BILL 156 (1st Reprint): Abolishes plea of guilty but mentally ill and reinstates exculpation by reason of insanity. (BDR 14-131)
Howard S. Brooks, Lobbyist, Nevada Attorneys for Criminal Justice:
I am an attorney with the Clark County public defender’s office and I am also president of the Nevada Attorneys for Criminal Justice. I am here to support A.B. 156. I was the attorney who appealed the prior statutory scheme the Nevada Supreme Court declared unconstitutional in favor of the estate. I worked with Mr. Graham on this bill. The current bill, as before this committee, is a good bill and should be passed. It totally remedies both the problems identified in favor of the State and also problems the district attorney’s office identified in 1995 when they challenged the current situation.
Senator Titus:
Just for the record, when this bill was passed and it did away with the reasonable insanity, at the time some members of this committee felt it was unconstitutional; but the former chair of this committee, in a rush to prove how tough on crime he was, insisted this go forward. Now we are back revisiting it because the Nevada Supreme Court has indeed said it was unconstitutional. Is that accurate?
Mr. Brooks:
You are completely accurate.
Mr. Graham:
Could I ask the witness a question? Mr. Brooks, take a look at page 20, lines 25 through 26. In reviewing this, we are not sure where this provision came from. This says if a person is found not guilty by reason of insanity (NGRI) and then is sent to a facility, he would not be retained in that facility any longer than the longest term he would possibly be sentenced to, or for a period not to exceed 10 years. I am not sure where we came up with this and I do not think Mr. Brooks and I even discussed it, did we?
Mr. Brooks:
I am completely unfamiliar with that and I was not real concerned about it.
Mr. Graham:
I knew in 1995 there were problems with not guilty but mentally ill. We knew sooner or later we were going to have to revise it and it became sooner with the U.S. Supreme Court weighing in. The bill looks massive because it goes through and takes out the phrase, “not guilty but mentally ill,” which is why it is so long. The meat of the process is on the first couple of pages and this goes to criminal acts and liability as we often find young people, children, are not criminally responsible because of their inability to form the evil intent required to be accountable.
This goes back to a case from England in 1843 where the McNaughton rule started and was developed. There are other methods and other ways to determine criminal responsibility, and the not guilty by reason of Twinkies and cola as was successful in California.
Senator Titus:
Did that include chocolate chip cookies?
Mr. Graham:
It was an acceptable standard for diminished capacity in California until a few years ago when it was repealed. Assembly Bill 156 provides the opportunity for the defendant to offer evidence of mental illness and, if you look on page 3, insanity needs only to be established by a “preponderance” of the evidence. There were some people who wanted that raised to “clear and convincing” and even others who wanted “beyond a reasonable doubt.” Under the circumstances of the defense, mental illness is not used very often and I do not anticipate it will, even with this change.
The only other item is on page 5 and tells you after the conviction if there is not clear and convincing evidence a person is mentally ill, the court must discharge him; but if there is clear and convincing evidence presented, then he would be committed to a mental health facility. The only other question I have and I would like to have stricken out to return to the law the way it was is on page 20, line 25 or 26, “or 10 years, whichever period is shorter,” and then that word “applicable.”
I saw my United States Senator refer to U.S. Senator Homer E. Capeheart on the floor of the United States Senate. Senator Capeheart was about the size of four of us, and my senator referred to him as the “rancid tub of ignorance from Indiana.” After the debate, they went and had a cup of coffee. So with my good friend Dr. Siegel, who is not even close to that, but I am sure has some exceptions, we are not going to draw any blood.
Senator Wiener:
I am a little confused. In some of your references you alluded to the standards of the burdens of proof as on page 3, with the new language about preponderance of evidence as the standard. Then we go into the clear and convincing in section 9 about mental illness. Then there is an intermingling of terms. Could you help me distinguish the difference between a defense of insanity and the references to mental illness? I see both terms used and stricken throughout the bill.
Mr. Graham:
On page 3 we are restating the defense of not guilty by reason of insanity for a defendant. It would become an affirmative defense where a defendant would have a burden of explanation and would introduce into evidence that they were insane at the time the act was committed. They did not know the difference between right and wrong, to simplify it, so they would not have the requisite evil intent because of this mental illness. They would only have to present evidence to the jury to establish insanity by a preponderance of the evidence. That is in the guilty phase. After the trial, if the person was found not guilty but by mental illness as opposed to just not guilty meaning he did not do it, then the burden of proof rises to a higher standard as to whether or not they are convinced the person is mentally ill and should be held for a period of time after not guilty by reason of insanity. So there are two differences, after the trial and then at the sentencing phase.
Senator Care:
What would be the circumstances under which a defendant would wait until trial to assert the defense?
Mr. Graham:
When everything else fails. It would be very unusual. We did talk about the 21‑day period, as you do not become insane overnight. I did defense at work for a number of years so there are times when maybe insanity did not manifest itself until just a day or two before the trial. Maybe somebody’s mother came forward with a record or something which might have been evidence of insanity and then the defense could say, “Look, I am sorry we did not give you the 21 days notice, but here is evidence we have just come to develop and we would like to impose that now.” Probably the least that would happen is the court would continue the trial for a period of time to let both parties develop it, but it would be very unusual.
Dr. Siegel:
I benefited from Howard Brooks’ extensive presentation to the Assembly Committee on Judiciary. He has published on the subject and helped educate me on something that has always interested me quite a bit, but I am certainly no expert. The ACLU supports the changes in principle. We do have an area we disagree with and we want to put this forward to the committee because we think this is going to be a future change that is going to be made, if not today, in the future.
We believe the Nevada Supreme Court has spoken correctly. There has to be an insanity plea. I want everyone on this committee to recognize how rarely this plea has been used. My memory is pretty good on these things and as I recall, Mr. Brooks testified the insanity plea had been either used or accepted four times in Clark County in 35 years before 1995. It is extraordinarily rarely employed, rarely asked for, and far more rarely given. As Mr. Graham said, the idea it is a great rarity, is a large point, because it is not effectively available to the defense.
It is not effectively available to the defense because we are trying to use a rule from the first half of the nineteenth century in the twenty-first century. We are using the McNaughton rule from 1843, which was not exactly the peak of progressive jurisprudence. In 1943 we codified the idea, as people have used in this committee, of “did he know right from wrong” as far as what crazy is. Somehow, Pricilla Ford got through in Nevada with the McNaughton rule. The woman had been 30 years in and out of our psychiatric hospitals. She committed a heinous act. I am not here to defend the heinous act she committed, but if anybody ever was on the record as a victim of serious mental illness, we had this woman, Pricilla Ford, who by the way has cost the State of Nevada a fortune. Her first trial cost over a million dollars. We never really effectively resolved her case. The Nevada Supreme Court said they wished they could overturn this, but we cannot technically overturn it so they put her in limbo at Lakes Crossing Center. They neither overturned her death penalty nor asked for her death penalty. Everybody else felt so uncomfortable with this case so that is where it sits. I had a meeting with Chinese judges and I used this case as an example of how the United States fumbles with the area of mental illness in terms of serious illness.
Dr. Siegel:
We use the McNaughton rule which asks, “Did she know right and wrong when she committed the act?” which, of course, we cannot prove what she knew at the moment she committed this act. Nothing about earlier psychiatric history or later psychiatric history, even the time of the trial, can be decisive about whether she knew right and wrong at the moment she did it. The burden is put on the defendant to such an extraordinary degree saying, “Okay, prove to us, at that moment of your crime on the streets of Reno, Nevada, when you ran your car into the street, you did not know right from wrong.” This is impossible, which is why four cases in 35 years have used this defense.
We have to move eventually, if not today. I do not have the evidence or the study you really need to consider from the model code of the American Law Institute and others. How about if not a twenty-first century sense of what the rule should be, how about a twentieth century one and not one from 1843? The 1843 standard has been acceptable to the prosecution because it does the same thing the 1995 law did; it took it off the books. It still takes it off the books. I hope you and I will look forward to 2 years, 4 years from now when we can prepare a comparative look at the three major models Howard Brooks testified to in the Assembly. You can then make an informed choice between those three tests, which you cannot do today.
Mr. Graham:
One of the reasons we supported the change in 1995 was there was an ex‑sister-in-law of a fellow who had been convicted of murder who testified he was acting crazy a couple of days before he killed his victim. Our Nevada Supreme Court said her testimony should have given the insanity instruction, but with her evidence we felt it was inappropriate. What came out was the not guilty but mentally ill and it was different from what we anticipated. Our sister states, very rarely, and not the U.S. Supreme Court ever, has said an insanity defense is constitutional. Our court has ruled and interpreted that it is. It is an area where there is more than one side. We are asking to go back to what we had before the 1995 change, but not simply because some lay person says, “he was acting crazy,” mandate a new trial, which we had, and then convict the person again. We ask to go back, and as indicated possibly amend out the 10-year period on page 20.
Senator Washington:
That was my first session so I remember the bill quite well. My colleague did say we would be back revisiting this issue. I voted in the affirmative with the chair and I still think it was a good decision. What was the vote at the Nevada Supreme Court and who wrote the opinion?
Mr. Graham:
I would have to look at the decision. It was not unanimous by any means, but I am not sure.
Dr. Siegel:
Justice Becker.
Mr. Brooks:
The Nevada Supreme Court issued an opinion with a 4 to 3 decision. Justice Becker wrote the majority decision. The dissent’s opinion asserted we still have the insanity defense, despite the guilty but mentally ill statutory scheme. From my perspective as a defense attorney, the dissent’s perspective of what we had was more favorable to the defense. It was there in common law, but not there in the statutes. It is a hard question to answer; it is a very complicated decision.
Mr. Wilkinson:
Mr. Graham brought up briefly where the language comes from on page 20, lines 25 and 26. The language was in the statute, as it existed prior to the enactment of S. B. No. 314 of the 68th Session. We were merely reinserting the language prior to the enactment of that bill.
Ed Irvin, Deputy Attorney General, Office of the Attorney General:
I am a deputy attorney general assigned to represent mental health and developmental services for the division. We proposed an amendment in the Assembly clarifying how Lakes Crossing Center would be involved in the process and we felt very strongly it was improved. The language in that section got by me and I believe it got by Mr. Graham, who brought it to my attention this morning. If Mr. Graham made an effective request for the language to be excluded by amendment, mental health and developmental services would be agreeable to the amendment.
Mr. Graham:
I did not realize it was the law prior to 1995. I have some concerns because if a person is found not guilty by reason of insanity of a particularly heinous crime, the treatment should go beyond the 10-year period. I guess this is a policy issue the committee needs to make. I would like some time to see that and my other concerns removed.
Senator Titus:
Is there something you can do short of “or in between” and make it not 10 years but do not also leave it as the longest period of incarceration provided for the crime with which he is charged? A felony could be like 2 to 20 years so then he would get 20 years automatically. Whereas, if he had been tried as a not insane person, he might have only gotten the 2 years. Therefore you are holding somebody 20 years when they might have only gotten 2 years.
Mr. Graham:
That does raise a concern, too. I understand. I do not know the answer; maybe that it was why it was 10 years in the previous law. I would defer to those who understand the medical standpoint. Maybe if a person is still insane, a threat to themselves or others, they would continue to be civilly committed.
Senator Titus:
I think there should be something in between doing away with that and making a person serve the longest possible sentence for the crime.
Mr. Graham:
It would be better to plead guilty.
Elizabeth Neighbors, Ph.D., Director, Lakes Crossing Center, Division of Mental Health and Developmental Services, Department of Human Resources:
Most states have provisions of conditional release under circumstances, where a person who has committed a heinous crime has been treated and is managed under a very carefully constructed high-intensity release program. There is a possibility of having an alternative to simply being incarcerated indefinitely.
Senator Titus:
Can we put something in here? If we are going to out the 10 years, can we add another provision?
Mr. Irvin:
The language had already existed in section 9 of the bill. As Senator Wiener pointed out and asked, the burden on the defendant at trial is by a preponderance of the evidence leading to a not-guilty verdict or judgment from the jury and then by clear and convincing evidence. Within 90 days the judge must decide whether or not the person is mentally ill, specifically, a mentally ill person not whether or not the person is mentally ill. Then it goes through the determination of what is the release determination. It also states the provisions of chapter 178 of NRS relating to incompetency are to be followed, meaning a hearing of that issue is tried and heard periodically. Off the top of my head, I cannot remember whether it is every 6 months or every year. This is the provision making it so the individual does not have their liberty curtailed beyond the maximum sentence. However, if they become no longer a mentally ill person, then they are released.
Senator Titus:
Are you sure section 5 is taken care of if you take out “whichever period is shorter”? I would like to have it double-checked because I am not sure it would.
Mr. Irvin:
Section 5 is the provision allowing the release of the individual if the individual becomes no longer a mentally ill person at any time up until the end of the longest period. I suggest to you that is the protection. The issue of incompetence comes up under chapter 178 of NRS, from which this bill borrows. If an individual is incapable of competency, however, is capable of treatment to competency, the longest the individual’s liberty may be curtailed is the longest sentence.
Senator Titus:
Why would you choose the longest sentence? Why would you not choose the shortest sentence for the crime they committed as opposed to the longest sentence or something in between? Do most people get the longest sentence? Is there not a lot of variation for what sentence people get when they are going through the regular process and not this insanity process?
Mr. Irvin:
Something not previously brought out is this bill applies to misdemeanor offenses. Incompetency applies to misdemeanor charges and so does the possibility of a verdict of insanity or not guilty by reason of insanity. The maximum for a misdemeanor is 6 months, as I am sure you are aware.
For the lower end, it gives the ability to effectively treat the person to give enough time. The larger end which historically has been consistent throughout the states. Maybe, if I change the way you asked your question, could this committee decide there should be an appropriate cap? We do not have a dog in that fight; it is not an issue, particularly for Lakes Crossing Center. Should it be the minimum? I will suggest to you, and if you weigh the balances, the minimum may be just a little bit too small. However, this committee certainly decides what would be appropriate.
Mr. Graham:
The decision made by the prosecution and the defense as a reluctant decision, was to go back to the way the law was before 1995 but with taking out the cryptic instruction of somebody is acting crazy. My position is to just leave it at 10 years and we will all be gone before a problem is created.
Senator Washington:
We failed to process S.B. 403 because it had some fees in it and we looked at it as a fee bill. Dr. Brandenburg asked me to take a second look at it. We have taken a second look at it and when we process this bill, I would like to amend A.B. 156 to include S.B. 403. For the members of the committee, this is the bill dealing with the certification of those individuals who are going to evaluate the competency of the defendant to stand trial or receive judgment. Dr. Brandenburg has stated the fees are appropriate for those individuals doing the evaluations.
SENATE BILL 403: Requires certification of persons who provide reports or evaluations to courts regarding competency of defendants. (BDR 14‑1245)
Chairman Amodei:
I do not have a problem with proposing an amendment as long as it is germane. Also, Mr. Anthony, would you ask Dr. Brandenburg to plan on testifying before this committee on the proposed amendment sometime between now and next Wednesday. For work session purposes, it is my intent not to reopen hearings on any matter unless there is a desire by this committee to take testimony. If you could coordinate with Dr. Brandenburg and, assuming the germaneness issue is taken care of, tell him we would like to have him testify on the proposed amendment.
Dr. Neighbors:
I would like to add a couple of pieces of information. I do not want to leave you with the notion there were only four NGRI commitments in Nevada between 1976 and 1995. Those four were just in Clark County. Statewide, there were 29 placed in Lakes Crossing Center during that period.
We anticipate there might be some increases due to the population growth in this State of Nevada. We have done a good deal of research since anticipating the re‑implementation of this bill. There is considerable literature regarding the McNaughton plea. It suggests when juries consider pleas, they do not really come to findings much different. I will be happy to provide this information or any additional information about the bill if you are interested.
Chairman Amodei:
That would be great. With no further testimony, we will close the hearing on A.B. 156. There being no further business to come before the committee, this meeting is adjourned at 9:56 a.m.
RESPECTFULLY SUBMITTED:
Lora Nay,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: