MINUTES OF THE meeting
ASSEMBLY Committee on Judiciary
March 27, 2003
The Committee on Judiciarywas called to order at 8:11 a.m., on Thursday, March 27, 2003. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4401 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Ms. Genie Ohrenschall
Mr. Rod Sherer
GUEST LEGISLATORS PRESENT:
Assemblywoman Chris Giunchigliani, District No. 9, Clark County
Assemblyman Lynn Hettrick, District No. 39, Douglas County and portions of Carson City and Washoe County
Assemblyman Bob McCleary, District No. 11, Clark County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Carrie Lee, Committee Secretary
Mark R. Guzy, Emerson Knife Company; and President/CEO, Driven Image
Mary Walker, representing Douglas County
Stan Olsen, Lieutenant, Las Vegas Metropolitan Police Department; and representing Nevada Sheriffs’ and Chiefs’ Association
Jacques Pelham, Legislative Intern, University of Nevada, Reno
David Fassler, M.D., Child and Adolescent Psychiatrist
Michelle Carro, Ph.D., Clinical Psychologist
Mary Burkheiser, Professor, William S. Boyd School of Law, University of Nevada, Las Vegas
Mark Blaskey, Chief Deputy Public Defender, Clark County Public Defender’s Office
V. Robert Payant, Executive Director, Nevada Catholic Conference, Diocese of Reno and the Diocese of Las Vegas
Richard L. Siegel, Ph.D., Professor, Department of Political Science, University of Nevada, Reno; and President, American Civil Liberties Union, Nevada
Nancy Hart, Deputy Attorney General, Office of the Attorney General, State of Nevada; Nevada State Death Penalty Abolition Coordinator, Amnesty International U.S.A.; and representing the Nevada Coalition Against the Death Penalty
Ben Graham, Legislative Representative, Nevada District Attorneys Association
Benjamin Blinn, Citizen
I will ask the Judiciary Committee to please come to order. [Roll called.] The full Committee is present. The first bill that we’re going to take up this morning is Mr. Hettrick’s piece of legislation; this is Assembly Bill 423.
Assembly Bill 423: Authorizes manufacture of switchblade knifes in this state under certain circumstances. (BDR 15-1012)
Assemblyman Lynn Hettrick, District No. 39, Douglas County and portions of Carson City and Washoe County:
Assembly Bill 423 is a bill to make certain that we don’t have a problem with the law in regard to a manufacturer of some world-class knives who sells knives to law enforcement, military, and multiple other places. The knife is not actually a switchblade knife; it’s actually what’s called an automatic opening knife. When we got an opinion from the District Attorney in Douglas County they said, “Well, we’re not certain what the law says; it says ‘switchblade.’ We don’t know whether someone would call this knife a switchblade, or not; we better amend the law.” The manufacturer of these knives would like to move into Nevada, to Douglas County, specifically, and be able to manufacture and sell these knives to the military, law enforcement, and the like, and our current law would not permit that, if this knife were deemed to be a switchblade. So we decided we better put something in to make sure that you couldn’t have them be in violation of the law if they came here and wanted to make these knives.
I do have a little problem, Mr. Chairman, with the last sentence, and perhaps even the last two sentences of the amendment in subsection 5. Let me first discuss what the bill does do. It says a sheriff may issue a permit, so you could have a public hearing, and everyone would have to know that someone was manufacturing, what the purpose was, and all of those things. But if you look at the starting line of 39 and going through line 42, I’m concerned that while we’re not trying to sell these knives, per se, to individuals in the state of Nevada, that because it says in the last line, “. . . to a person located in another state, territory or country,” that we might have a problem if somebody came here and actually visited Douglas County, was sitting in the facility and wanted to buy the knife.
The next line bothers me even more: you “. . . may not authorize a person to sell, offer for sale or expose for sale a switchblade knife to a person located in this state.” Well, if they were sitting at the facility wanting to buy a supply of these, they are located in the state, and is that going to be a problem? I am also concerned that we make sure that this language will allow them to transport, if they happen to pick up knives at the facility outside the state. In all candor, Mr. Chairman, I didn’t have a chance to sit down and go through and offer you language to change that, but I would really like the Legal Division to make certain that we are doing something with this language that would not give us a problem. I’m concerned with the language the way it is.
With me I have Mark Guzy, and he is very familiar with the manufacture of these knives, and I think he might provide you with some very interesting information, and I would, with your permission, Mr. Chairman, defer to him, and let him talk to you about the knives.
Mark R. Guzy, Emerson Knife Company, and President/CEO, Driven Image:
I’m actually on the Board of Directors of Emerson Knife Company and I live here in Nevada, Douglas County in particular. I’m trying to bring the company here to Nevada for its friendly business practices; we’re basically a manufacturing facility that makes knives. Just to give you some background, our primary clientele purchases a very high-end quality, tactical folding knife that’s made for the military. Every member of the graduating class of BUD/S (basic underwater demolition/SEAL training), which become Navy SEALS (Sea, Air, Land), is issued one of our knives right off the bat. One of our largest clients, now that we’re engaged over in the Middle East, is the military as a whole. Delta Force and all the elite military units carry one of our knives; that’s primarily our market.
Our founder, Ernest Emerson, is a very largely respected knife designer/ manufacturer, and there’s a large collection market for his knives. The automatic knife, just to give you an example what it is and what it’s designed for, is really for military and law enforcement applications. It’s for somebody who is multi-tasking with both hands and has to safely deploy a knife, quickly, one-handed, and basically, push a button to deploy the blade. That is really what it’s designed for, a military or law enforcement officer who is holding onto somebody, and has to rappel, or do something, and deploy the knife at the same time. They can use a gross motor skill instead of a fine motor skill; the fine motor skill would be deploying the knife with your hand, which is gripping it with your fingertips. In a hostile situation, they could drop the knife. This way they can grab ahold of it, press a button, and the knife is deployed.
So that’s the intent of the automatic knife, and the basic application. Now there are a few states, which I can provide later, that do legally sell this to the general public, and there is a very small market for that; about 95 percent of what we would sell would go to the law enforcement or military. Currently we’re located in California; we’d like to come to Nevada. We’re prohibited in California from selling knives to the general public. We’re missing that market segment, and that’s our intent in coming to Nevada.
So you’re missing the market segment because you can’t sell the knife in California?
We can’t sell or manufacture, we can’t do anything with it. With our facility in California we cannot, at all, make the parts to even send it out to have it assembled some other place, so we’re restricted from manufacturing that particular product at all.
How does the military buy it in California?
Well, we have to have it manufactured out of state. Right now, we have a contract with another knife company and they manufacture it in a state where it’s legal to do that. We’ve had to go into a joint venture and then cut into our profit margin in order to develop this knife outside. Unless we come with a large scale—California’s got certain regulations as far as large contracts with the military. California would then allow for certain large segments of production of the knife, but then there’s taxes, use, and inventory, things we get into that, for how small our company is, we employ about 35 people, it doesn’t make financial sense to engage in those kind of contracts.
So you wouldn’t allow these knives to be sold in Nevada, is that correct?
Whatever your intent is.
That’s my very question here. The market would be 95-99 percent outside the state of Nevada on the sale; law enforcement can buy anyway, because law enforcement is exempt from this, so if law enforcement in our state wanted to buy these knives, they could. Yes, they would be selling outside. However, this language would not permit someone sitting at the counter, and I want to make sure it doesn’t, who walked in and said, “I’m from Oregon, and I want to buy some of your knives for our law enforcement.” We would have to say you’re located right here in the state and I can’t sell it to you. What if they have some kind of a subsidiary in the state of Nevada; are they located in the state? That’s my question. I’m concerned about this language saying that you couldn’t have a subsidiary—is military in the state located in the state?
Let’s just take law enforcement, military, and the general public. Is it your intent to allow it to be sold, in state, to military and law enforcement, but not the general public?
I don’t think they have any problem with that at all.
We have no problem with that. Our main concern is to be able to manufacture, but I think Mr. Hettrick’s point is very good. For example, we were in Florida and met with the personal representative for the King of Jordan in regards to a knife that we’re making for him and his special forces and personal protection team; we’re discussing training options and we’ll be going over there. He wanted to take one of the samples of the knives; we had to get a special permit to display the knife at a trade show, and we wanted to give him the knife but couldn’t, because we’re prohibited by the law. The King of Jordan wanted to take the knife with him; he’s a diplomat and not regulated by our laws. We could have given it to him, but the state prohibited us from doing that.
The state of Nevada?
No, actually we were in Florida at the time.
The point here is the subsidiary, or what “located” in the state of Nevada, means, because we want to be very careful. There are military units here; could you sell to them? Are they considered to be located here? If they are, then you couldn’t sell to them; you couldn’t show it to them, you couldn’t offer it for sale, you couldn’t do anything. And the same with law enforcement if you had some kind of an organization that had representation here. I just want to make sure the language is all right. They don’t care about selling to individuals; they want to sell to law enforcement. They want to be able to make, display, transport, and sell it to somebody who would order from them, whether they’re sitting here, have subsidiaries here, or what.
Actually, what we want to make sure is that the sheriff does not believe that he has the ability to open it up for sale to anyone, either. We’re not empowering the sheriff with the ability to put these on the market, even though the manufacturer may like to do this, in order to expand his business opportunities; I’m sure that you would like to sell more, not less.
Well, obviously. Our main focus is military and law enforcement. We’re in the final stage of getting POST (Peace Officers’ Standards and Training) certified in the state of California; we’ve got a training program that’s the best in the world, literally, and we train law enforcement and military personnel in defense of edge weapons. Just about every police officer and military person, and a lot of people in the general public, carry some sort of knife of some form or fashion, but it’s not our intent to develop knives for those on the street that want to misuse them, or commit crimes with them; that’s not our intent. There’s a large segment of the military and law enforcement personnel that we would like to manufacture knives for and sell to, and that’s our primary target with this market.
I’m unsure why the Office of the Attorney General wouldn’t be better to oversee the application of this; I’m unsure of the procedure. You have the various sheriff departments throughout the state; I think it could possibly open it up to multiple businesses coming in, perhaps, and losing track on who’s manufacturing and who’s not. But there may be some kind of procedure in the state why sheriffs do it, and not the Office of the Attorney General.
I think the Legal Division just chose that because they wanted law enforcement involved in some way, so they chose the sheriff, and because they would have a public hearing in that county with the county commission, where the Attorney General would normally not be a part of the public hearing process. They could be, but I don’t think we care who it goes through; the idea is that somebody in law enforcement is notified, and they have a public hearing, so the public understands what this is, and not that this is some off-the-wall thing, or doesn’t understand what’s going on there; they’re all aware of it, hold a public hearing, and issue the permit.
I only mention it because this is an item that’s illegal throughout the state, and that’s why I mentioned the Attorney General may be the best to oversee it; it’s just a suggestion.
I’m a little concerned, relative to whether a sheriff actually holds a public hearing, but I do believe that the sheriff of a county would be the proper person to do this. He doesn’t normally hold a hearing process, where a county commission does have a normal hearing process, so if we were going to amend this, we would have to include both, the sheriff on the application to be processed, and the hearing to be done by the county commission so that there is a public notification, if we’re going to do this at all.
I think when I talked to the Legal Division about that part, I think that was implicit that they don’t hold public hearings; the county commission does. They intended that they would go to the county commission; if you want to make it explicit, that’s fine with me.
Well, I think that it would be an important factor that if we’re going to do this, we have a justifiable concern for switchblade knives, at least from a historic past, and not to demean the intent of the Emerson Knife Company, but we want to make sure that these type of weapons don’t fall into the wrong hands. If we can protect the public, I think we have an obligation to do so. Ms. Lang, there is some concern relative to the question of bill drafting. Do you want to venture an opinion for us on the concerns raised by Mr. Hettrick?
Risa Lang, Committee Counsel:
I think, perhaps, there was a miscommunication in the drafting of this, and if the intent is to allow for sales to be allowed in the state for law enforcement and military, we can add some language to allow that to happen.
Would the sale be direct from you to law enforcement and the military, or do you go through arms dealers in the state and they have to provide proof that they are military or law enforcement? How would that work?
We’ll take direct orders from people and will verify that they’re law enforcement or military. Most military that we sell to, Navy SEALS for example, we actually hand-deliver those down to the special Warfare Center in San Diego, California, because we’re located in Torrance. We don’t sell to arms dealers; we sell to distributors and have a distribution network. It’s their practice to follow the laws of the state that they are going into, and then they need to get military contracts or purchase orders from the military or law enforcement agency, or the individual officer. They can buy through that sales network but we do allow people to come to us directly. Right now, we’re not manufacturing the knives so it’s really a non-issue for us.
But when Legal is drafting the language, you would manufacture the knife. Somebody who sells knives to law enforcement or the military and handles that would get them from you and provide the service, so they would need to be authorized to handle that transaction.
Right; the sales network is bound by whatever the law is in the state in which they reside. When I was a police officer and I went to buy an automatic knife to carry when I was on duty, I would have to show my identification and basically prove I was a law enforcement officer. Some places would even require a letter from a supervising officer or the chief of police of that agency; that was just from a typical retailer. For us on the manufacturing side, we would produce that knife and either send it directly to the military or any law enforcement agency. We have a program now where we train law enforcement officers, and agencies are now serial numbering the knives and issuing them to their officers as they would a firearm or any other piece of safety equipment. At that point we would sell to them directly, but given the fact that this knife is legal in some segments of the country, we would then ship it to a distributor, who then would follow the rules and practices of distributing it legally. At a certain point, we can’t manage all that inventory; we need to have certain channels to sell the knives through, and that’s how it would basically be handled.
Thank you, again, Mr. Chairman, and members of the Committee, for letting us go first; I do appreciate that, and I’d be happy to work with staff to make sure the language satisfies the Committee and to make sure we don’t have a problem.
Mary Walker, representing Douglas County:
Douglas County wholeheartedly supports this in regards to their economic diversification; as you know, there’s a lot of discussion about that these days. We have gaming, and we are getting more sales and larger national firms in Douglas County; we just got Starbucks as far as manufacturing. Manufacturing is a very important part of economic diversification and as other sectors of the economy may go down, such as tourism and sales tax, it’s these kinds of companies that stay alive and can help us with our economy, particularly in the rural counties. Douglas County does support this.
Douglas County still has a policy that they do not license businesses?
And they’re the only county in the state that does not?
I believe so.
If we were to process this, how would you go through a county hearing, since you don’t require that of any other business in your county?
With a business license, you have a fee of “x” amount of dollars; you sign up for it and you get the license. There is no hearing to receive any licensing anywhere in the state. In this regard, if you were going to look at—for example, if a business isn’t following the law in regards to certain parameters you may put in here, then I don’t think a business license would really do all that much any way. If you want to have the county to have regulatory authority over their practice, you could put something in there; it doesn’t necessarily need to be a business license.
The fact that Emerson has the outstanding reputation, apparently, and has this specialized area, this may attract other switchblade knife companies to come to Douglas County. Since you don’t have a licensing process, they could open up shop and not follow any kind of a process; you’d have no way of knowing that they are there.
If you wanted to add in language that says the county has to provide business licenses to these companies, we would support that.
Anybody else wishing to testify in support of Assembly Bill 423? Lt. Olsen, you have some concerns you wish addressed?
Stan Olsen, Lieutenant, Las Vegas Metropolitan Police Department; and representing Nevada Sheriffs’ and Chiefs’ Association:
Most of our concerns have been addressed in the information given by Mr. Hettrick. Our big issue is control of the weapon; these weapons are designed for the purpose of killing humans and, therefore, we are very concerned about the control. Law enforcement does use these weapons and I know the military uses them on a regular basis; they are a defensive weapon. One of the things you might be aware of is there are knives out there that have a metal, I’ll refer to it as a knob, on the blade, that you can push with your thumb and it flips open; it is not spring-loaded. This sort of sounds like what they were describing, as opposed to a spring-loaded knife, which may not even be required to be in the switchblade category. A number of those weapons are already out there and they are not illegal, depending on the length.
I believe that was Mr. Hettrick’s supposition that the purpose of the amendment was to clarify the question in case there was any doubt as to whether this knife manufacturing company fell on one side of the question or on the other, to clear up the ambiguity that might exist, because of the nature of knives with mechanical parts to them.
Lt. Stan Olsen:
One of the issues that was brought up was requiring letterhead or a signed letter from a CEO of a law enforcement agency; that’s standard operating procedure with most of the law enforcement agencies when they purchase firearms direct, so that’s not a problem for us.
I think what I need to do is clarify something here. The reason that we have a concern with this being called a switchblade—I don’t believe it is, and I don’t think it even falls under the law—is that when the blade comes open after you push it with your thumb, or any way you activate the blade, the blade swings open on the knife and there is a metal, you could call it a spring, that locks the blade in place; that was where the issue came up. The spring doesn’t open the knife; it’s not a push button that pops the knife blade out like a switchblade, or pops the knife blade open in a swinging action. It’s not activated by the spring; the blade is locked by the spring. But because of that, the District Attorney said, “Well, someone might say this is a switchblade knife, and then you would be in violation of the law.” We don’t want this manufacturer to move here, set up business, try to start doing business, and somebody says, “We’ve decided this is a switchblade knife.” It’s not by that definition, but it does have what would be called a spring in it, and we don’t want that misclassified; that’s what we’re really trying to do here, to just make sure that we don’t have some misinterpretation of this, and end up making some good manufacturer a criminal.
I just perused the Emerson Knife Web site and looking at the knife, it looks to me like the actions on the knife are like a common buck knife, which has been sold forever and a day to hunters and fishermen.
Is that actually true? Can I get just some clarification because to my knowledge, that’s legal in every state in the Union. The mechanism is exactly the same, or similar.
Absolutely. You’re right, Mr. Conklin. The mechanism is exactly like a buck knife that’s sold in this state. However, when they checked, because our District Attorney wanted to be perfectly clear this might be misinterpreted to be considered a switchblade because of the spring lock, you better make sure the law allows this. That was the advice they got; that’s why I’m here.
Mr. Hettrick, in regards to the business license issue, is there any reason to issue a business license when according to the way the bill is drafted, the sheriff would have to OK this business anyway so it wouldn’t be anybody just moving into the area?
Yes, if indeed they fall under switchblade knives, it would take the sheriff to do it. Douglas County wants the manufacturer to move here, and wants to be able to issue a permit to make sure they’re legal; that’s all we’re trying to do is make sure we’re covering Douglas County so we don’t have the manufacturer move here, build a facility, move 35 employees, and then somebody interprets the law and says they’re illegal.
I think my concern is because of some incidents that happened a little over a year ago in Douglas County, where a company did not have a business license, some safety precautions were not adequately followed which led to the death of several people; not that a business license would have stopped that from happening, but possibly it would have given the fire department an opportunity to inspect the site. I’m a little more sensitive to the nature of that particular problem that other counties seem to have.
Anybody else that wishes to testify on Assembly Bill 423? Let me close the hearing on Assembly Bill 423, and indicate to Mr. Hettrick, and to others who are interested, we’d like to see some clarification relative to the hearing process, the question of [the knife] not being for sale to the general public here in the state of Nevada, and the bill’s intent for this particular system. I’ll ask my researcher and bill drafter to work together with you, Mr. Hettrick, if we’re going to move with the bill.
Let me move to Assembly Bill 118, which is Ms. Giunchigliani’s piece of legislation. Ms. Giunchigliani, good morning.
Assembly Bill 118: Revises provisions regarding when sentence of death may be imposed. (BDR 14-856)
Assemblywoman Chris Giunchigliani, District No. 9, Clark County:
Assembly Bill 118 is the bill before you, and I’m handing out a packet (Exhibit C) that my intern will discuss, briefly, just for your information, and then we have Dr. Fassler’s packet (Exhibit D) being handed out so he can follow after us.
Young people frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments by definition, they have diminished capacities to understand and process mistakes, to learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish this personal culpability. This was the point made in Atkins v. Virginia, which banned the execution of the mentally retarded, and, due to the more recent scientific research, this same argument applies equally to offenders under the age of 18.
Along with everything else in the body, the brain changes significantly during adolescence. In the last five years, scientists found the brain developed far less than previously thought. Researchers at UCLA (University of California, Los Angeles), Harvard Medical School, and the National Institute of Mental Health, began studies using MRIs (magnetic resonance imaging) to map the brain in children and adolescents. What they are now finding is that the brain undergoes an intense overproduction of gray matter during adolescence, then the gray matter is shed and discarded; this is referred to as “pruning.” At the same time, myelination, which makes the white matter, is being processed as well. The pace and severity of these changes continue until one’s early 20s; these changes mean that the brain is still developing.
One of the doctors from the Harvard study also found that the under-development of the frontal lobe makes adolescents more prone to act with what they were referring to as “gut instinct.” Young people have a tendency to use the part of the brain called the amygdala, which is responsible for gut reactions, instead of the prefrontal cortex, which is responsible for reasoning. Also, males use the gut, or instinctual part, of their brains more than females during this age of the development.
It’s also been found that the frontal lobe is involved in behavioral facets germane to many aspects of criminal culpability. Most relevant to this matter is that this area of the brain also controls aggression and other impulses. There is now clear, biological evidence that adolescents do not have the same ability as adults to make sound decisions and to prevent impulsive behavior.
As a society, we recognize the limitations of adolescents and restrict their rights to drive, drink alcohol, smoke, vote, marry, enter into contracts, and even watch “R” rated movies; that’s why we have a juvenile justice system in this country. We’ve long recognized that juveniles differ from adults in their decision-making abilities, yet despite these types of laws, the United States remains one of the few countries in the world that executes juveniles. The United States is also the only country in the world that has not ratified the United Nations Convention, which is in one of your packets.
I would urge you to make the right decision, and recognize that the death penalty’s deterrent value has yet to be demonstrated, and life without possibility of parole is a far more harsh punishment than being released from pondering one’s actions over the years. This bill simply goes hand-in-glove with the bill you’ve already passed to end capital punishment for the mentally retarded, and I would urge your consideration.
Jacques Pelham, Legislative Intern, University of Nevada, Reno:
Ladies and gentlemen of this Committee, this bill is not about abolition; it is about punishment. Children who commit horrible crimes must be punished and we must ensure our society is safe, but we must also ensure that our society achieves its goals of justice and fairness when it punishes its children. It is our argument that the juvenile death penalty does not achieve these goals and it should not be used as an acceptable form of punishment in the state of Nevada. For those who have already committed crimes and deserve to be punished, the evidence presented and the arguments you will hear show that life imprisonment without the possibility of parole is a more legally acceptable, and just, punishment. The medical evidence you will hear and see is overwhelming, in that it shows the inferior mental capacity of juveniles. We must consider the standards of decency and justice, established both internationally and domestically, regarding this issue.
It is frightening to think that the United States has shared the use of the juvenile death penalty in the last 20 years with countries whose legal standards of justice do not allow women the right to vote, and considered stoning as an acceptable form of capital punishment up until 2001. Furthermore, numerous legal organizations, from state legislatures and state supreme courts to the American Bar Association, have denounced the juvenile death penalty as an unacceptable form of punishment. Currently, Florida, Arkansas, and this legislative body are considering this issue. Indiana has banned the juvenile death penalty and raised their age to 18, and Montana did the same thing in 1999.
Please carefully consider the evidence presented and the arguments made both for and against the juvenile death penalty. We trust that your judgment will not be clouded by emotion and anger while you determine the future of what Nevada’s standards of justice and fairness will entail. We believe that you will see this argument for what it truly is, a plea for this state to raise itself to the level of decency and fairness established in the medical standards presented, and the legal doctrines used by the majority of people throughout the world.
David Fassler, M.D., Child and Adolescent Psychiatrist:
I am a child and adolescent psychiatrist from Burlington, Vermont. I’m a Clinical Associate Professor in the Department of Psychiatry at the University of Vermont College of Medicine. I’m also a Trustee of the American Psychiatric Association, a Fellow of the American Academy of Child and Adolescent Psychiatry, and a member of the Board of the Federation of Families for Children’s Mental Health. I’m happy to be here this morning, and I appreciate the opportunity to appear before you. I’m here today to help address some of the clinical and scientific issues, which are relevant to the question of juvenile death sentences. As you know, 28 states and the federal government do not allow the execution of people who were under the age of 18 at the time of an offense. Today, Nevada has an important opportunity to join this growing consensus.
Both the American Academy of Child and Adolescent Psychiatry, representing 7,000 child psychiatrists, and the American Psychiatric Association, representing some 40,000 psychiatric physicians, have issued strong and unambiguous policy statements opposing juvenile death sentences. I have enclosed copies of both these statements for your review in the background materials I’ve distributed (Exhibit D). I would also point out that neither of these organizations has a policy pertaining to capital punishment in general, but they do have specific positions when the issue involves juvenile offenders.
[Dr. David Fassler continued.] From a clinical, developmental standpoint, our objection is rooted in the fact that the brains of adolescents function in fundamentally different ways than the brains of adults. We frequently recognize this fact in law, when we establish minimum ages for the exercise of certain rights, responsibilities, and independent judgments. Examples often cited include the right to vote, drink, purchase alcohol, marry, make independent medical decisions, or enter military service.
We all know that adolescence is a turbulent time of life and we’ve all been there at one point. Kids are growing rapidly and maturing on multiple levels, which are not always well-synchronized. For example, we’ve all seen 14-year-old boys who suddenly shoot up over 6 feet tall. They may tower over their parents, but their ability to reason or make logical decisions is far from developed. Or the 15-year-old girl who’s physically mature, but who still has the emotional reactions and impulse control of a much younger child. And we’ve all known bright and usually responsible 16- and 17-year-olds who don’t think twice about getting into a car with a friend who’s been drinking.
Let me try and explain what’s actually happening from a neuro-developmental perspective, by which I mean what’s actually going on physically inside the brain of a 15-, 16-, or 17-year-old. Research studies have indicated that adolescence is actually a very active time of growth and development at the physical level of the brain. Specifically, what we see is a rapid increase in the interconnections between the brain cells.
We also see growth of what’s called the gray matter of the brain, followed by a refinement of the connections and the pathways. It’s important to understand that the primitive, or instinctual part of the brain develops first, followed by the parts of the brain that control reasoning and help us think before we act. In terms of actual brain anatomy, we’re talking about the amygdala, which is a more primitive part of the brain responsible for gut reactions, including fear and aggressive behaviors, versus areas like the frontal cortex, which develops later and helps us control our emotions and modify our actions and responses. Here is a picture of the amygdala (Exhibit E); I’ve also given you a few pictures in the background materials and I brought a model of a brain, which I’ll show you as well.
The amygdala is deep in the center part of the brain, versus the frontal cortex, which is outside and in the front area of the brain, which develops later. There’s a phrase in embryology, which is, “ontogeny recapitulates phylogeny,” which means that when we develop, we actually go through evolution all over again, and the older, earlier, more primitive parts of the brain that are more related to our animal and instinctual background, and they’re in the center, develop first. It’s the neocortex and frontal cortex in the front that really makes us different, and makes us much more able to think and reason.
[Dr. David Fassler continued.] Research, using functional magnetic resonance imaging, which is a kind of an MRI scan, has demonstrated that adolescents actually use their brains differently than adults when they are reasoning or solving problems. For example, they tend to rely more on these instinctual structures, like the amygdala, and less on the more advanced areas, like the frontal lobes, which are associated with more goal oriented and rational thinking. What you actually see on the brain scan is the part of the brain that’s being used will light up; in adolescents, you’ll see that deep, middle amygdala portion lit up, and in adults, you’ll see the frontal lobe much more utilized.
Research has also identified other areas of the brain that undergo significant growth and development during adolescence. One is the corpus callosum, an area of tissue which connects the two halves, or hemispheres [demonstrated using a model of the brain], in the middle. The corpus callosum facilitates problem solving, which makes sense, since it’s the pathway for information from one side of the brain to the other. The last part of the brain that I’ll mention is the cerebellum, which is at the back, and when I was in medical school, we thought that this was mostly responsible for balance; now we understand that it also helps organize our thought processes. When I was in medical school, we also thought that most of the brain development was finished by age three. I always remember that on the first day of medical school, the Dean came in and told us, “Half of what we’re going to teach you is wrong; the problem is, we don’t know which half.” We know that all of these anatomical structures, the amygdala, the frontal lobes, the corpus callosum, and the cerebellum, are physically changing and maturing throughout adolescence. This is really new understanding over the past five to ten years.
From the work of Dorothy Ottnow Lewis at NYU (New York University), we also know that a high percentage of juveniles who commit violent crimes actually have significant signs and symptoms of brain damage. Many of these kids were physically abused themselves, or otherwise exposed to violence while growing up. A significant number were also exposed to alcohol, cocaine, or other known toxins, even before birth, and we know that such exposure has a direct impact on the structure and functioning of the child’s brain. I would not suggest that these developmental issues or physical abnormalities in any way excuse violent criminal activities, but I do think the information is relevant and helpful as we try to understand the impact of biology on behavior and cognitive functioning.
[Dr. David Fassler continued.] In the area of juvenile justice it’s been a long-held belief that children and adolescents who commit crimes, even serious crimes, require a different response than adults who commit comparable offenses. The juvenile justice and child guidance movements were built on the belief that children and adolescents are more malleable and more likely to respond to intervention than adults. Their behavior patterns, as well as their cognitive and neurological development, are not yet finalized. As a society we have broadly recognized this fact and, as a result, we’ve established separate laws, courts, and programs for juveniles who commit crimes.
In summary, from a scientific standpoint it’s quite clear that adolescents are biologically and developmentally different than adults. As I’ve indicated, there are a number of specific differences in terms of neuroanatomy and brain functioning and, as a result, adolescents also think and reason in different ways; they are much more likely to act on impulse without considering the consequences of their actions, and they are generally more receptive and responsive to intervention and rehabilitation.
As I mentioned, you have an important, and even historic opportunity today. Your debate is being followed by many states across the country; you have the opportunity to make a statement that the citizens of Nevada will not execute people for crimes committed as adolescents. I certainly realize this is a complex and controversial topic. I would urge you to put emotions aside and look at the scientific research on this issue. If you do, I think you’ll decide it’s time to recognize that adolescents are not the same as adults, and that it’s time for Nevada to join the growing list of states that have acknowledged this fact and passed legislation banning executions for crimes committed by juveniles
I have to tell you how informative and how helpful your presentation was for me.
I just want to compliment the sponsor of the bill; you do more work on your bills in terms of research, providing information, tackling difficult topics, and I think the material that you put forth and the caliber of your witness just displays that talent and that hard work yet again, and I thank you.
We appreciate the opportunity to be here, and I do think it’s important, when we’re dealing with policy, to give you as much information as possible so that the judgment can be based on that, not who is presenting. I do want to thank this Committee, also, for assisting us with bringing Dr. Fassler here.
Ms. Giunchigliani, there was a mention of the sentence being life without the possibility of parole; in the bill it merely states a “punishment that may be imposed is life imprisonment.” Is there the possibility [of parole], or no possibility under this statute?
There is no possibility of parole, and I believe the language is on page 2 of the bill.
I think Mr. Brown is concerned because we currently give 3 options: 50 years, 20 years, and life without [the possibility of parole].
Thank you for that clarification; in the bill it specifically does state the “life without the possibility [of parole].”
I do see that from this point forward, however, under Section 1 in the statute it states, “As to such person, the maximum punishment that may be imposed is life imprisonment.” Under this statutory scheme, is there the option of “with or without the possibility,” or is it strictly a “life,” and that may be with the possibility of parole?
Maybe I could ask Ms. Lang to explain that part.
Risa Lang, Committee Counsel:
Like you stated, there are several options for a person convicted of first-degree murder. If you have aggravating circumstances, currently the option is death; this is just removing that option, but it’s not changing the other options for a person who is convicted of first-degree murder.
Then that’s the reason it’s phrased this way.
I see that we’re changing the age from 16 to 18, and I understood your discussion of the brain, and I want to know exactly what the difference is between ages 16 and 18? Could you also elaborate, a bit, on why we had the law at 16 in the first place?
Dr. David Fassler:
I would explain it by thinking in terms of a bell-shaped curve, so development is progressing for all kids over time. We used to think that most of these pathways were complete by the time a child was 16, and probably younger. We now know from this later neuroimaging research, that this period of time is a time of intense development and that things really aren’t finished. By the time kids are 18 or 19, they are definitely on the smaller end of the bell-shaped curve, so it is certainly possible that there are kids who are going to be 19, or young adults who are 20, who are still not fully developed and fully mature as we would think of as an adult. But clearly, the majority of them by age 18 would have passed that point.
From what I’ve found, and to my knowledge, there was no rational basis for the age of 16. If you go back maybe 10 to 12 years ago, and this is across the United States, we began to try to allow our courts to—because of the types of crimes that were being committed—to sentence 16-year-olds, or allow the courts to determine to make them an adult for that purpose. This morning we had a discussion with the Speaker who raised the same question about, “Why do we have 18 for a lot of our bases?” No one could come up with an answer. I think Doctor Fassler explained so that even parents knew, they could tell by looking at their own children over a period of time, “You know, they’re not really quite—they didn’t make a right judgment here,” and 18 seemed to be the standard when we really started looking at alcoholism, or the ability to marry, and the right to vote, that maybe there was a cusp there, that they began to even notice a change. I think society recognized that and our laws actually started to parallel that.
But why 16? I don’t know. It was just arbitrary and I think that’s the point; because of the studies now, you can show that the brain is still developing through age 18, if not beyond, depending on certain individuals. There is no cut-and-dried case, because I have had students in middle school that were far more mature than others, but they still made crazy responses. They were the best kids then all of a sudden they would just do something so off-the-wall, well, that’s because they still aren’t fully developed. Adults have the ability to reason, far more so than an 18-year-old, and perhaps society just inherently recognized that, and then our laws followed along; there isn’t always a science to some of this, I think.
Our statute has been set since 1967 relative to the age. Thank you very much, Ms. Giunchigliani, for an excellent presentation. Doctor, thank you for coming out. Let me move to Dr. Michelle Carro in Clark County.
Michelle Carro, Ph.D., Clinical Psychologist:
[Read from (Exhibit F)] Good morning, and thank you for the opportunity to speak before you in support of Assembly Bill 118. I hold a doctorate in clinical psychology, and have been a licensed psychologist in Nevada since 1999. My doctoral training began in 1991, and has focused in the areas of children, families, and psychological testing. I practice in Las Vegas conducting psychological evaluations of children and adolescents, plaintiffs in civil litigation, and criminal defendants. I also maintain a small caseload of therapy clients referred by the Special Public Defender. They are criminal defendants awaiting trial for murder, and several have ranged in age from 15 to 17 years.
[Dr. Michelle Carro continued.] I have been asked to testify today, based on my own training and experience, but also I have been authorized to testify on behalf of the Nevada State Psychological Association, representing approximately 140 psychologists in the state. I’ve also attached to my testimony a copy of the 84,000-member American Psychological Association’s policy statement on the death penalty in the United States (Exhibit G), wherein juvenile executions are listed as a deficiency.
Dr. Fassler provided an excellent review of many of the developmental issues to be considered today. My testimony comes from a slightly different, albeit complementary, perspective. I, too, will draw from psychological research about youth violence while incorporating my personal experiences with a teenager who faced the death penalty in Nevada.
Shortly after I became licensed, the Special Public Defender’s Office asked me to meet with one of their clients, Kenshawn Maxey. He was awaiting trial for the murder of two people and faced the death penalty; he was 17 years old. I met Kenshawn in my waiting room; he sat in shackles, flanked by two armed officers. He was African American and, despite my training, I admittedly found myself fighting back stereotypical thoughts of this boy—was he dangerous, angry, antiauthority, without feeling, and perhaps deserving of some extreme punishment, the one that faced him? After all, he had killed two people.
Over the next year I spent approximately 14 hours with Kenshawn, and I began studying youth violence, trying to understand the lives of the youth who engage in violent, sometimes lethal, behavior. I came to learn that Kenshawn’s case illustrates what the research reveals, that there are known social and psychological risks, in addition to the ones already talked about by Dr. Fassler, that when accumulated, predispose youths to use or engage in violent behaviors to get their needs met, or to solve their problems. An authority in this field, Dr. James Garbarino, a psychologist from Cornell University, writes in his book, Lost Boys: Why Our Sons Turn Violent and How We Can Save Them, “Inside almost every violent teenager I’ve spoken to is an untreated, traumatized child . . . At the heart of the matter is whether a young child is connected rather than abandoned, accepted rather than rejected, and nurtured rather than neglected and abused . . .”
[Dr. Michelle Carro continued.] Dr. Fassler reviewed vulnerabilities of adolescents as they make the long transition into adulthood with regard to their still-developing brains, and therefore, abilities to reason and control impulses; I would add that adolescents’ moral reasoning abilities are still developing. They may know that a behavior is wrong, but their ability to resist temptation is underdeveloped, particularly when faced with frustration or when under stress, including peer pressure. Statistics on juvenile crime indicate that teenagers do not typically commit offenses alone but rather, often to impress or gain acceptance from their peers.
Add to these baseline adolescent vulnerabilities a few more to juggle: the presence of an abusive father, the absence of a nurturing mother, multiple disrupted connections with caregivers, learning disabilities, regular exposure to violence, poverty, and minority status. These are many of the factors that psychological research has identified as putting children at the greatest risk for perpetuating violence.
Back to Kenshawn, his mother was murdered when he was eight years old. He had known her for one week, as she had just been released from prison; she had gone to prison when he was an infant. His father was physically abusive and neglectful; Kenshawn recalled being beaten with electrical cords. He liked to go to school because, in his words, “I could eat there.” He was ultimately removed from his father’s care to be placed in over nine foster care settings over a period of five years. And as a result of either inherited traits, or due to the head traumas inflicted by his father’s abuse, Kenshawn was found to have significant learning, thinking, and problem-solving deficits.
Psychological research also reveals factors associated with positive outcomes: a stable, positive relationship with at least one caring adult, religious and spiritual anchors, a positive and stable family environment, emotional intelligence and the ability to cope with stress, a school environment that provides a sense of belonging, and a safe and secure community that protects children from violence.
[Dr. Michelle Carro continued.] Kenshawn had seen glimpses of positive influences in his life. His grandmother had cared for him as an infant and toddler, providing early stability and attachment from which he developed the capacity to give and seek out love and acceptance, and feel deep remorse. He was well behaved in grammar school and well-liked by his teachers. He spoke to me of trying, in the past, to avoid negative influences. He stayed home many days watching movies, or, on one New Year’s Eve, volunteering to baby-sit because he knew there would be trouble in the neighborhood that night. Although Kenshawn’s desire to avoid trouble was present, his desire to gain acceptance was stronger, even if it meant turning to an older young man who had a serious criminal record. One night he convinced Kenshawn to help him rob a bar. I assure you, Kenshawn had not woken up that day, or even thought earlier that evening, that his night would end in his shooting and killing not only a bartender, but that same friend in the confusion of events.
I testified at Kenshawn’s penalty phase; the jury, thankfully, came to understand the mitigating factors associated not only with his adolescence, but his history that made him all the more vulnerable, and thankfully, chose to spare his life. In prison, he has been a model inmate. I understand he sticks mostly to himself, more mature now and able to avoid negative influences. I understand that in contrast to Kenshawn’s story, you may hear this morning horrible details of violent crimes committed by other juvenile offenders. I know that these offenses occur and that they cause great pain. In no way do I seek to excuse violent behavior. It is my argument, however, that it is wrong to execute adolescents when they are underdeveloped physiologically, socially, and emotionally, and when those who were charged with the job to promote this development for so many failed to do so. It is also unfair when we can identify from sound research those most at risk along with prevention and intervention programs that work. I have attached materials in that regard with my testimony today.
In closing, I’d like to quote from the American Psychological Association’s Public Interest Initiative on Youth Violence (Exhibit H): “We must make a legislative and social commitment to the reduction of aggression and violence in society. Everyone who comes into contact with a youth . . . has the potential, one way or another, to mitigate a child’s involvement with violent behavior. Every institution that touches that child can contribute positively to a child’s sense of safety by teaching and demonstrating peaceful, effective coping alternatives to violence.” I believe that passage of Assembly Bill 118 is necessary to represent such a commitment here in Nevada.
On page 3 of your handout, you said, “. . . as a result of inherited traits . . .” What do you mean by that?
Dr. Michelle Carro:
My understanding of Kenshawn’s psychological and neuropsychological testing, wherein his IQ (intelligence quotient) and language abilities were evaluated, we determined that he had significantly below average scores. His ability to think and problem solve verbally, and knowing that his background was one that included violence perpetrated against him—he had some concussions—we could not determine whether or not he was just born with those learning deficits, which is possible, or whether they were acquired as a result of his abuse. Does that answer your question?
Kind of. We know that there are children who grow up in terrible environments, but yet they turn out fine.
Dr. Michelle Carro:
What makes those children able to choose right from wrong, whereas I’ve known some children that had all the chances in the world, that came from loving parents and yet, they, for lack of a better term, went bad. What part of the brain would give certain people the ability to choose right from wrong, and others, I guess they were on the road to being bad no matter what the environment was. Have any thoughts on that?
Dr. Michelle Carro:
Certainly, if Dr. Fassler is still there, and wants to address the question, I’d be open to his thoughts, but—
The doctor had to catch his flight back.
Dr. Michelle Carro:
Oh, he’s gone? It’s a more complicated issue than just saying what part of the brain is responsible for deciding right and wrong. There are children who come from harsh backgrounds, similar to Kenshawn’s, that don’t end up involved in these violent crimes, and what psychologists are trying to figure out are what are the factors that were there that provided for them some buffering, or protection, against choosing the wrong path. Some of them just go down a different path in terms of becoming depressed and not necessarily violent, depressed and withdrawn, and maybe violent against themselves; suicide and violent behavior are part of the same process, two sides of the same coin. Then in those cases where children appear to have all of the benefits given to them, there may be subtle deficits in their backgrounds with regard to attachment, connection, and other kinds of abuse that may have been there that weren’t as obvious as those mentioned today in my client’s case.
Dr. Fassler has come back into the room. Let me allow him to make a short statement to answer your question, what makes some kids go bad.
Dr. David Fassler:
What we understand and believe from the research is that kids are born with a genetic predisposition, so there are some kids who are more or less likely to have a range of problems. Then as you heard in the previous testimony, what happens to you in your early life can have an impact, both positively and negatively, so I was very happy to hear the positive protective factors. It’s easy for us to look at kids who have had a bad background and who have problems as a group and say, “Of course they had a bad background and they have problems as a group,” then say, “Of course they have problems, they had a bad background.” I think it’s more interesting, and it’s really your question, what can we learn from the kids who have that background and do well, in spite of that? The kinds of things are what you heard described before: consistency and predictability.
In my clinical work, I think the one most important thing, if I had to pick one thing is, was there a consistent adult figure in your life from your early years who cared about you and who you made a connection with and who helped instill in you a sense that you’re a good kid and you’re going to be OK and you’re going to make it? Was there that role model? That’s part of why, across the country, we’re trying to do so much work with mentoring and getting these kinds of role models for kids who may not have them naturally and normally in their families. Things like emotional intelligence, being creative, being bright; if you’re bright, it promotes resiliency.
So there are a number of things that, even if you’re born with a genetic predisposition to have problems, can help protect you and make it less likely that they will actually be expressed. Conversely, you may be born into the best family with lots of love and support and stability, and you still go on to have problems. Some of that may be the genetic background; some of it may be environmental things that happen early in your life or even before birth—exposure to alcohol or other substances. Some of it may be influenced by behavior patterns that you pick up from kids who you meet in school, so it’s not an absolute science one way or the other. The general belief is that you’re born with a genetic predisposition, and we certainly know, and we’ve all seen babies who have very different personalities when they’re born, and then whether or not the behavior patterns actually get expressed can be influenced in both positive and negative directions by what actually happens in your early years.
I guess you make us all think. This person that the doctor from Las Vegas talked about, if we could keep this person from taking up with this bad element for three more years, are a lot of these kids going to grow out of that, or what happens?
Dr. David Fassler:
You raise a very good point. I think some of them will, certainly not all of them, but where your question goes, in my mind, is the importance of identifying these kids as early as possible and really getting the intensive intervention that they need.
In the story that you heard from Las Vegas, there were signs and symptoms of problems for years, and whenever we’ve worked with adolescents who have extreme violent behavior, and we look back, it’s clear that people identified and realized that these kids were different back in second grade, first grade, sometimes even back in day care. As a society, I think we need to get better at intervening more intensively as early as possible. By the time they’re in high school we’ve probably lost the battle, but we need to build these consistent support systems, and a lot of these kids have significant mental health issues that we need to address intensively and comprehensively as well.
Mary Burkheiser, Professor, William S. Boyd School of Law, University of Nevada, Las Vegas:
I’m very pleased to be here today, and particularly pleased to see one of our Boyd alumni on this Committee; Assemblyman Horne, lovely to see you.
[Reading from Exhibit I.] Let me just say, I have listened with great interest to the testimony of these distinguished experts, and I do not intend to repeat anything they’ve said; they’ve presented the issues quite well and with much greater credibility than I, a lawyer, could begin to do.
But I do want to address a different issue that Assemblyman Carpenter raised in one of his questions, which was, do these young people just simply grow out of this behavior and mixing with “bad” elements? You may not know this, and I did not until I started researching the topic myself, but the majority of adolescents commit crimes with others, with either friends or family members, and the exact opposite is true of adults. Whereas anywhere from two-thirds to almost 90 percent of adolescents have been revealed in studies, dating back to the 1920s, to have participated in crimes with their friends or family members, only about 20 percent of adults commit crimes with others; the vast majority act alone. I think that has great implications in juvenile justice in general, and particularly in the field of the death penalty, because, in many of the cases, participation with others is often used as an aggravating factor that ends up being used against a young person to lead to the death penalty, instead of life imprisonment or a term of years served.
[Mary Burkheiser continued.] Currently I’m conducting a study and am writing an article on the juvenile offenders on death row. By my current count there are 79 such offenders; they are, of course, not juveniles any more, except for the most recent ones, perhaps because the United States Supreme Court has ruled prohibiting executing anyone under the age of 16. Among those 79 who are on death row right now, 55 of them, or more than two-thirds, were involved with others when they committed the crimes that they were convicted of, or at least, when they were convicted of the crimes involving multiple offenders. Even among the remaining 24, a substantial portion of those were influenced by others who acted as instigators.
Let me just give one example of this latter situation. There is a case of a 17‑year-old Philadelphia boy who had a girlfriend who said she was going back to Maryland. Some older friends of this boy were teasing him mercilessly about how he wasn’t enough of a “man” to keep this girl around, and if he’d just make more money to shower on her, he’d be able to keep her. He exercised the poor judgment that we know teenagers are prone to, we know anecdotally and from the scientific testimony that was presented today. We have a young, male teenager in love; he decides that the way to get money is to rob a pizza deliveryman to convince his girlfriend to stay. He’s not successful, and worse yet, he ends up shooting and killing the deliveryman. None of those friends were charged with being accomplices or having any participation in the robbery or murder, and this young man is now facing execution in the state of Pennsylvania.
Last summer Texas executed two young men, Napoleon Beazley, and T.J. Jones, both 17 at the time of their crimes, both convicted of murder, both had co-offenders. None of the co-offenders were sentenced to death; instead they got sentences of a term of years or life imprisonment. Would either T.J. Jones or Napoleon Beazley have committed the murder alone? We simply don’t have the answer to that, but what is true for them and for the majority of other youthful offenders on death row, is that the influence of friends or family members can be great. In fact, with both Beazley and Jones, the facts of their cases are quite similar; they were involved with a group of friends, and ill-advisedly decided they wanted to participate in a carjacking. Things got worse and people ended up dead. It’s worth saying, just for the record, that both of these young men were black, and both of their victims were white, and we do know that there are some problems with racial disparity with the administration of the death penalty. They shouldn’t have tried to steal a car, but are we convinced that these youthful offenders are the “worst of the worst” for whom the death penalty is to be reserved? With so few juvenile offenders on death row some of you may think, “Why bother with getting rid of it? It doesn’t really matter. I mean 79 compared to the many hundreds of adults.”
[Mary Burkheiser continued.] The fact is that even with that small number, of course, every life matters, and we all understand that, but something that’s particularly troubling, at least to me, is that 224 juveniles were actually given the death sentence since 1973 when the death penalty was reinstated in a number of states. That means that 145 cases have concluded. Unfortunately, 21 of those cases concluded with execution, but 124 of them, 85 percent of those that have concluded, were either overturned or the sentences were commuted. That kind of error at the trial level in the imposition of the death penalty against individuals, who are less than adults, is simply unconscionable. The disparity in the sentencing of many of the co-defendants illustrates the further dangers of the juvenile death penalty. We know that different juries decide cases differently and on the same facts they might sentence, and have sentenced, someone to death, and another co-offender has gotten either life or a term of years. Worse yet is the difficulty and the sort of moral problem that I believe exists in prosecutors being enticed into using the death penalty as leverage, or a deal with a co-offender not to seek the death penalty in exchange for that person’s testimony against another youthful co-offender. Do we really want our young people to be trading off themselves and their friends or family members for their own lives? I don’t think so; we just should not be perpetuating a system that permits the lives of our youth to be used as bargaining chips.
There is a young man in Oklahoma who is set to be executed next week on April 3rd. His name is Scott Hain and I’ve mentioned his facts because his background is so similar as discussed by Dr. Carro in the case of Kenshawn. This is a truly heinous crime; of course this young man should be punished, but he was not alone. He was 17; his co-defendant was 21 or 22. They’d been living together, doing drugs and committing crimes so that they could buy the drugs. This young man did not come to drugs and crime voluntarily; Scott Hain’s life of crime and drugs began when he was 8 years old. His father introduced him to marijuana and then started using Scott to help him commit burglaries and thefts when Scott was in his young teenage years. After spending time in a juvenile facility and being released at age 17 he hooked up with Robert Lambert, the older man, though he’s still young; they were living on the street, and the rest is history.
I say this just to point out the lives that are being destroyed and the loss of life because of a punishment that is not necessary. Most of these individuals will grow out of committing crimes and would not, perhaps, have committed any crime, but for the fact that they were involved with particular individuals, and I’m not going to say that they were led astray, but we know, ourselves, as youth, we are very prone to pressures from our peers, wanting to be with our friends, and the sort of mob-mentality that takes over and has us do really stupid things. I’m sure we could all tell each other stories about really stupid and risky things we did as juveniles; we should not be executing our young people because of those mistakes of youth.
Thank you for taking this up and for having us here before you today, and I urge you to very carefully consider and to adopt the amendment to raise the age of the death penalty to 18 in Nevada.
You mentioned the inmates on death row in Nevada, and I was wondering if you knew how many were sentenced under the death penalty before the age of 18 that are currently on death row?
Currently on our death row there is only one individual; there were two, and one had his sentence commuted, but it was commuted to a life sentence, I believe, and I can’t recall his name. Miguel Domingues, I believe, is the only juvenile on Nevada’s death row. I will acknowledge, for the record, he committed his crime alone. My argument about the group and peer pressures does not apply to Miguel; however, arguments about youth do, because his crime was a crime of passion, committed to earn the love and respect, though misguided, of his girlfriend. These are the kinds of things that we know young people have no judgment about whatsoever.
When I was in high school there was a boy in the class ahead of me, he was 17, and he murdered a woman by himself, cut up her body and took parts to school. He is, I believe, on our death row, and he was convicted before he was 18. That kind of colors me because when you’ve had personal experience with this kind of thing, you wonder what’s going to happen later on, the rehabilitation part. I was just wondering if he was still there; his name is Tom Bean.
I’m not familiar with him at all, and I can only presume that he has been executed if he was convicted and sentenced to death.
Mr. Bean is still on death row, is he not?
He must have been 18 by the time the crime was committed, because he is not. I have the study Dr. Victor Streib at Ohio Northern University puts out (Exhibit J). He has studied the juvenile death penalty for years, and that name does not appear in his report, and so he must, I can only presume, Assemblywoman Angle, that he actually was 18 at the time he committed the crime, although he was still in high school. That’s all I can assume and others may know better.
Mr. Blaskey, I’ll take you next; do you have a written document that you are submitting?
Mark Blaskey, Chief Deputy Public Defender, Clark County Public Defender’s Office:
I’ve had some documents submitted to the Committee [contained in Exhibit C].
If you could summarize those in three minutes, we might be able to proceed because we’ve now been hearing the bill for an hour, and I have yet to hear from the opposing side; I need to give them some time, and we have another bill to hear. I want to make sure that I give other people an opportunity to testify that are here and have been waiting.
I have been prepared to testify regarding the international and domestic practices regarding the juvenile death penalty. Internationally, there have only been seven countries in the last 12 years that have executed a juvenile offender; the United States has executed more juvenile offenders than the other six countries combined. In the year 2000, only three countries executed juvenile offenders and these are the only three countries of the seven that have not taken steps to abolish the juvenile death penalty. No country, other than the United States, has executed a juvenile offender since 2000. The United States has entered into three treaties, and ratified one treaty, which prohibits the execution of juvenile offenders.
I have distributed to the Committee a decision from the Inter-American Commission on Human Rights regarding Nevada’s sole juvenile offender on death row, Miguel Domingues. The International Commission on Human Rights has ruled that the execution of Mr. Domingues would be a definite violation of international law and should be prohibited; they have also ordered the United States government to do everything within its power to prevent this execution. Nevada needs to consider both the international practices of countries around the world and its attitude towards the international death penalty for two reasons. First, as we watch the news accounts today of everything that’s going on in Iraq, if you watch any news briefing of anyone from the State Department, the Department of Defense, or the White House, inevitably they will talk about international law and how that affects what’s going on today; how we have the right to go into Iraq and how the treatment of prisoners is all governed by international law. International law clearly prohibits the execution of juvenile offenders.
Secondly, there are the monetary consequences of Nevada’s juvenile death penalty. Since virtually all of Europe has abolished the juvenile death penalty, and they take this matter extremely seriously, eventually it could affect the commerce and the tourism into Nevada or Las Vegas or Reno, from people from other countries, because of Nevada’s view on the juvenile death penalty. Europe has taken the juvenile death penalty extremely seriously; they’ve even gone so far as to alert the United States that if any person who participated in the September 11, 2001, terrorist acts were captured in Europe, they would not turn them over to the United States if the United States was going to seek the death penalty against them.
Domestically, since 1976 only seven states have executed juvenile offenders; in the last three years only three states have done so. Since the death penalty was reinstated, no state west of Texas has executed a juvenile offender. Currently, only two states west of Texas, Arizona and Nevada, have juvenile offenders on death row; the last time Arizona executed a juvenile offender was 1934. The trend, not only worldwide but also within the United States, is to move away from executing juvenile offenders. Since the [United States] Supreme Court has examined the issue of juvenile offenders, five state legislatures have raised the age limit to 18 years old for juvenile offenders, and one state supreme court has raised the age limit. In 2000, Texas was the only jurisdiction in the entire world to execute a juvenile offender.
Finally, I think the best illustration of why we treat juveniles differently than everybody else can be examined by the advertisements and the laws regarding the sale of cigarettes. You can see commercials on TV, you can walk into any convenience store and see a giant sign indicating that they will not sell cigarettes to anyone under 18 years of age, and yet we are permitted to execute these people. In Nevada, life without the possibility of parole means exactly that; if a person is sentenced to life without the possibility of parole, they will not be paroled. In light of the practices of the international countries, the state’s domestic practices, and the way we treat juveniles differently, I would urge this Committee to strongly adopt this bill.
Do you have any statistics that show that in these countries or states that do not execute juveniles that there is less crime, or more crime, than states or countries that do execute juveniles?
I do not have any specific data regarding that, however, death penalty information in general has established that states that do not have the death penalty have significantly less murders in their states than states that do have the death penalty.
Could you supply us with that information?
I could certainly attempt to find that and submit it to the Committee.
As part of our [interim] study that was conducted, Michigan is the one that comes immediately to mind, and that information is available in a large document that we can find through our Research Department.
V. Robert Payant, Executive Director, Nevada Catholic Conference, Diocese of Reno and the Diocese of Las Vegas:
I have previously appeared before the Committee and have indicated something of my background. I will repeat what I told you the last time I testified, and that is that the Catholic Church in Nevada, as well as the United States Catholic Bishops, strongly opposes the death penalty under any circumstances. We realize the good citizens of our faith, and other faiths, have come to different conclusions with regard to the imposition of the death penalty, at least under some circumstances. We do understand that, and I’ve been in discussions with many people over the years with regard to this, men and women of good faith who have come to a different conclusion. But today we’re talking about, very specifically, a small, but very significant group of people, those who are children aged 16 or 17 who are accused of the most serious of crimes.
Mr. Carpenter raised the question with regard to the efficacy of the death penalty and the indications are that homicide rates in those 12 states that do not have the death penalty are about half the level of homicides in states that do have the death penalty, and that information is available in a Columbia report and other material that has been presented to this Committee.
As parents, and as we listen today to the very interesting testimony that was given by the psychologists and psychiatrists, we know that children develop at different rates; we are familiar with the mature teenager, and we’re also familiar with the immature adult. It is your obligation, and it has been the obligation of your predecessors, to establish set rules as to what ages we have decided, that for certain purposes, maturity has arrived. So the people that were sitting in your seats have probably done the best they could in deciding what are appropriate times. For example, your predecessors decided that we shouldn’t allow people to drink alcohol until they reached the age of 21. When I was a lad, the age was 18, but those changes took place, and we decided that 18 was not mature enough. Now we don’t allow people to marry without parental consent until they’re 18; we’ve decided that they’re old enough to marry with parental consent, but they can’t enjoy any alcohol at their wedding reception because they’re not yet 21.
We don’t think that they are mature enough to elect public officials until they reach the age of 18, or to serve as elected officials. We don’t consider them mature enough to enter into civil contracts, to enforce contracts, even if they had the resources, if they were charged with the very serious crime of murder. Even if they had the resources, they would not be able, at 16 or 17, to enter into a binding contract hiring their lawyer to represent them. We don’t allow 16- or 17-year-olds to serve on juries, so we give lie to the claim that people accused of crimes should be tried by a jury of their peers. With all these rules that we’ve made, we don’t allow them to buy cigarettes until they’re 18. We don’t allow 16-year-olds to go to most movies without their parents or adults, and yet, we can say that 16 is an appropriate age for people to have to defend themselves against the most serious of charges [submitted (Exhibit K)]. I hope that you will decide that that isn’t what we want to do in Nevada any longer.
Richard L. Siegel, Ph.D., Professor, Department of Political Science, University of Nevada, Reno; and President, American Civil Liberties Union, Nevada:
My identity as a professor of political science at the University of Nevada, Reno, is also relevant, because I’m mainly going to speak to you about the public opinion poll numbers on the juvenile death penalty.
As we all know, the problematic nature of public opinion on the death penalty as a whole has been used to support the death penalty; some of us on my side would say that when presented with the figures of life without the possibility of parole, actually half the people would say that is as far as we should go, but we have had a debate on that issue. On the mental retardation issue, which passed the Assembly, one of the things that made it easier for this house to move in the direction of abolition was overwhelming public opinion against the execution of the mentally retarded, well over 80 percent.
The question that I’m basically here to talk about is where is public opinion on the juvenile death penalty? I’ve put together a five-page packet for you (Exhibit L) on the juvenile death penalty and public opinion. The most important poll is the Gallup Poll on the second page, with a chart, which came out in May 2002; a fairly recent poll indicates that national public opinion is 69 percent against the execution of juveniles, and only 26 percent favored the execution of juveniles. That is an indication of where we would be in Nevada because all but one poll has come out with between 60 and 70 percent opposition to the execution of juveniles.
I’m just going to summarize the middle paragraph on the front page [of my packet]. In the conservative state of Kentucky, only 15.5 percent actually supported death penalties for juveniles; 79 percent supported other alternatives. Similar results were found in Georgia where 60 percent opposed such executions of juveniles; 23 percent supported executions. Even in Harris County, Texas, the “death penalty capital” in the United States, only 25 percent said the death penalty for juveniles was appropriate. There is only one poll which comes out with less clear-cut results; it was one I presented to this Committee two years ago which had 37 percent favoring, and 42 percent opposed, was from Arizona, with 21 percent giving other responses. Except for the Arizona poll, and including some conservative states like Georgia and Kentucky, we have solid poll numbers that are about 2:1. The other thing that I wanted to say was the Ninth Circuit Court of Appeals reflects that 2:1 opinion.
This is the most futile of all of our death penalties that we can have. We not only will have horrible publicity, as Mr. Blaskey said, if we go ahead towards execution of somebody like Miguel Domingues, but we will do that futile thing that we’ve talked about so much in this Committee room, which is that we will spend $2 million to try to execute a juvenile with, as Mary Burkheiser said, an 85 percent likelihood, nationally, of having those overturned. So the futility and the cost factor are particularly strong in these cases, and public opinion says you should pass A.B. 118.
Nancy Hart, Nevada State Death Penalty Abolition Coordinator, Amnesty International U.S.A.; and representing Nevada Coalition Against the Death Penalty:
As you know, I’m also a Deputy Attorney General, and I’m not here in that capacity on this bill. The Coalition is a broad-based statewide organization working to end the death penalty in Nevada, and we very strongly support this bill. I testified earlier in general support of the five bills that were recommended by the subcommittee that studied the death penalty during the interim. One of the issues studied by the subcommittee was the question of execution of juveniles, and it had considerable support in the subcommittee, although it ultimately lacked, what we expect was one vote, in getting it out of the subcommittee. So we know that there is also, not just generally, but nationally, public opinion in support; we certainly hope that there is a trend within the Legislature itself.
For all the extremely valid reasons that you have heard this morning, we believe that it’s the right time to end the execution of teenagers in our state. As with the other five death penalty-related bills that you’ve heard and passed out of this Committee, it’s a question of fundamental fairness; it’s a question of recognizing and respecting human rights. It’s a question of ensuring that if we are to have the death penalty in Nevada we must guarantee that it is indeed reserved for the very worst-of-the-worst criminals.
If you have written testimony that you wish to give in support, having heard the “pro” side of the argument for an hour and 20 minutes, we need to leave some time for those who wish to speak in opposition; we have another bill to hear, too. Mr. Graham, you’ve signed in as “neutral.”
Ben Graham, Legislative Representative, Nevada District Attorneys Association:
I want to applaud all the folks who are here, and all of us who are opposed to executing people that are truly not worthy of execution, and there aren’t very many of them that really are. However, all of the evidence that these folks talked about, and they support it, is available today under our mitigating circumstances provision where, I can assure you, that there would probably hardly ever, if ever, be a death penalty for young people if they were to put that type of evidence in before a jury, under the mitigating circumstances of youth, which is available today. That’s essentially it; if the Legislature wants to go a different direction, I’m with you.
My question is how this would work? It takes some of the discretion away if we have some really bad things happen similar to the incident I described when I was in high school. I was wondering just how you felt about that, with our laws about trying juveniles as adults, and with our laws about the other mitigating circumstances. Could you just comment on that?
The decision whether or not to seek the death penalty in Clark and Washoe Counties is rather extenuated and lots and lots of circumstances are considered. There has been a criticism that we only seek the death penalty when we think we can get it; actually, I think that should be a bonus rather than a detriment. The only time we really seek the death penalty is when we feel there are definitely aggravating circumstances that far outweigh any mitigating circumstances, which would justify doing that with regard to the discretion of the prosecutors. I think that if we put a prohibition on a certain age, IQ, or whatever it might be, that you do infringe upon the discretion of the prosecutor and the right of the state of Nevada to try these people before a jury; let the jury make the decision. I think the evidence provided by the folks proposing this bill would fit very well under the current scheme of mitigating circumstances.
Is there anybody else who wishes to speak in opposition to the bill? Is there anyone who is neutral on the bill?
Benjamin Blinn, Citizen:
I was in a maximum security prison and can say Tom Bean remains there; he was convicted before we had the death penalty redacted.
I was going to say that I think it was before the abolition of the death penalty, and thus, everything was commuted for everybody on death row at that time.
He was sentenced before there was the death penalty, so his sentence was life, and that’s a little different than being on death row. The youthful offender is, by classification, initially committed to maximum security and separated from the rest of the institution, unless they think they can handle the yard. Having watched the youthful offenders who come in their early 20s, one can tell that a lot of their “significant others” in life altered their viewpoints. What this study also pointed out, if I heard right, was even while the gray matter is being formed in brains, switches are being made and might not even be made until you’re 21, so I don’t know if 18 is the cut-off age according to testimony we heard. I would oppose the age being set at 18.
The youthful offender in the joint is separated for his own safety and security, because of his vulnerability and his raging hormones that allow him not to take anger management classes and things that we have now, outside, in treatment, and in the joint. When you have those kinds of classes, these people are not allowed to come and join the rest of the yard, so basically they do what we call “dead time.” They have the attitude in there that we call the “immaturity attitude”; maybe it’s caused by an alcoholic syndrome, bad parents, or just because some adult influenced them like in the Washington sniper case, the youthful offender has an attitude we call in the joint, “I want what I want when I want it.” They have no patience, but tribulation work is patience.
The other thing that happens to the youthful offender in the joint is that they take the final solution for the temporary situation of being young, and that’s suicide. You see that across all our jails. The point that I wanted to make is I’m opposed to it for being for age 18, because I think that maturation illustrated by the bell curve and the learned doctors that we’ve heard and our distinguished constituent that represents all of you so well, Chris and I don’t think it goes far enough with the care and treatment in the place. All they do is separate and integrate them into society, and when they think they can handle the yard, the maturity and the lessons are not learned until life itself ends.
Questions for Mr. Blinn?
I know that I have here a letter from the National Association of Social Workers (Exhibit M); we’ll set this into the record. If there are other interested groups who want to get materials into the record, I’ll leave that open for you to put things into the record.
I’ve enjoyed listening to this testimony today; maybe I should have gone into psychiatry. It was an eloquent presentation, and I’m blessed that I have a 16‑year-old and a 17-year-old, too, so I have two children that this might apply to. The concern that I have is this is such a sensitive issue that we really didn’t hear much of an opposition. I don’t know if that’s because there isn’t an opposition, or those that might oppose were afraid to come up. I’m just curious if Dr. Fassler, and maybe this would not be appropriate, could present the other side. We didn’t really get another side of the picture, although I’m pretty comfortable how I’ll vote on this, it would just be good to hear the other side.
I think there is a policy choice to be made, whether we’re comfortable with 16 being the line or whether we should move it to 18, in light of new information that has come forward, which more adequately reflects where mental development ends. My position on the death penalty is pretty well known across-the-board. There’s a bill on the other side that has my name on it that talks to where I would prefer, but that’s me.
I was just wondering if there might be a psychiatrist in the country that would present a different view.
I brought this bill last session, and we were not able to move it out of committee because there was stronger opposition to it. I think most of my bills engender opposition from time to time, so I think this is maybe more indicative of what’s happening across the United States and more of a sensitivity with the new scientific documentation, that people have more of a comfort level, and the trend is possibly moving that way. Regarding psychiatric, I’ll let Dr. Fassler speak to that.
Dr. David Fassler:
It’s a good question, and I think there isn’t another side in terms of the research evidence, so I think that’s why you’re not hearing that. I think you have heard the two issues that I’ve heard raised; one is why 18? Why not 19? Why not 20, or 21? We have to draw a line somewhere when we set these standards in law, and you’ve heard lots of people refer to purchasing alcohol or driving or getting married. My point, based on the research, is that we know that there is a lot of development going on between the ages of 16 and 18. In some kids, there is some going on after 18, but it is decreasing significantly and steadily. The other argument that you heard raised is that while these issues can be brought up in a trial as mitigating factors, that’s only possible if everyone has access to all the witnesses who can come and give that kind of testimony. Maybe we’re still left with that for people who are between 18 and 21, if they really did have significant cognitive deficits, or neurological damage, then those would be mitigating factors.
What I would point out, though, is that both of my professional organizations, the American Academy of Child and Adolescent Psychiatry, and the American Psychiatric Association, reviewed the research nationally and debated this topic and voted on it in their assemblies and at their board of director level, so this is the established national policy of both of those organizations. It’s not to say that there might not be a psychiatrist who would have a different viewpoint, but it’s certainly not one that I’ve heard voiced within those organizations at this point.
Does RAIN (Religious Alliance in Nevada) have a position on this, and have you submitted it? [Larry Struve with RAIN submitted written testimony (Exhibit N).] Let me close the hearing on Assembly Bill 118.
The Chair is of the mind that we might want to be able to move this bill; I don’t see any amendments that have been proposed or supported. I think it’s a straight up or down kind of deal.
ASSEMBLYMAN HORNE MOVED TO DO PASS A. B. 118.
ASSEMBLYMAN MORTENSON SECONDED THE MOTION.
[Roll call vote taken.]
THE MOTION CARRIED UNANIMOUSLY.
Let’s move to the last bill of the morning, Mr. McCleary’s bill.
Assembly Bill 331: Provides for issuance and enforcement of temporary and extended orders against person who allegedly committed certain crimes against child. (BDR 3-956)
Assemblyman Bob McCleary, District No. 11, Clark County:
I want to give you a little bit of background. We’re actually going to amend this, and you should have that before you (Exhibit O). We were approaching a deadline, so we wanted to be all-inclusive and make sure that we had everything in this bill draft, and then after reviewing it, Judge Gaston in Clark County, who requested the bill, said it was too complicated; we have simplified it so the actual amendment will be the bill in a more simplified form.
So you’re asking us to speak to the amended, or potential concept put forth by Judge Gaston?
Yes. Just to give you some brief history about this, originally Judge Gaston had found there was a problem and a need for this bill, and he approached Assemblywoman Buckley concerning this. She indicated to me that her plate was full for this legislative session, asked me if I would champion this, and I was very pleased to do that. I’m going to read Judge Gaston’s testimony for him since he can’t be here today. Basically, what A.B. 331 is going to be able to do is give children and their parents the right to have restraining orders. What is happening is crimes are being perpetrated against children and, pending trial, there is no way for these children to have restraining orders on their behalf at this time. If it will please the Chair, I would like to read Judge Gaston’s testimony.
[Read from Exhibit O.]
Chairman Anderson and members of the Assembly Judiciary Committee, my name is Robert Gaston and I am a District Court Judge in the Family Division in Clark County, Nevada. I am here as an individual and not representing either the Family Division or the District Court. I apologize for not being personally present for this hearing but, unfortunately, I am in Ely making presentations at a judicial seminar.
Thank you for the opportunity to address this Committee, in writing, in regards to A.B. 331. I want to convey my thanks to Assemblyman McCleary for requesting the introduction of this bill. My comments will be brief, to the point, and deal primarily with the need for and policy behind A.B. 331.
When the Family Court was made operational we divided, to an extent, the duties of Justice Court and District Court—Family Division, regarding the issuance of temporary restraining orders (TPOs). Wherein, historically the Justice Court handled the issuance of the TPOs, at the advent of the Family Court, protection orders dealing with domestic violence were placed in the Family Court’s jurisdiction. As we delineated the specific duties of the Justice Court, we granted that court jurisdiction over cases primarily dealing with “stalking.”
During the past year it has come to my attention that there are a group of victims of crime that have no access to the temporary restraining order. This group of victims is the most vulnerable and, in my opinion, the most in need of such an order. Children, who have been sexually abused by an individual not living in their home or related to them, have no access to a TPO under our laws today. This applies to those children who have been victimized by such individuals by lewd conduct.
Why is it important for a parent of such a child victim to have access to a TPO? It is easy to access, and can be obtained quickly and efficiently. The alternative for a parent is to request the prosecutor to come before the court and request an injunction. This procedure is time-consuming and expensive to the system.
I voiced a concern over the suggestion that A.B. 331 has a fiscal impact on our local and state government; I don’t share that point of view. In my perspective, I see this as a savings to the governmental entities by not having to take the time of the district attorney in preparing a motion for an injunction, for not having to appear before the court to argue for an injunction, and for not having to file an injunctive order. That procedure takes time and governmental costs. On the other hand, a TPO can be handled without those costs.
It is extremely frustrating for parents, in an attempt to protect their children who have been victimized by sexual predators, to not be able to get immediate protection through a TPO. Instead, they have to worry for many months, while a case is pending before the criminal court, as to whether the perpetrator will be exposed to their child. This can have serious effects on the child. In some cases, the perpetrator may even approach the child.
We have an obligation to protect these vulnerable victims whose scars from such incidences last for a lifetime.
Thank you for your serious and sensitive consideration of A.B. 331. I strongly urge you to pass this through without delay.
And, of course, that’s referring to his amended version of the bill.
I was working with Mr. Graham and we tried to be all-inclusive when we did the drafting; we were running into a deadline. Once we finished, we sent the copy to Judge Gaston and he said it was too complicated, and this was his suggestion.
I want to thank Risa Lang, particularly, for the hard work on A.B. 331 initially. I also want to thank the Justice Court attorney in Las Vegas, Joe Tommasino, and in particular, Nancy Hart, who helped with the re-draft of this final order for Judge Gaston. This is extremely narrow, but it answers the need that Judge Gaston brought to us some time ago. I was initially involved in trying to find authority for Judge Gaston to do this and was unable to do so, and I think that’s what led him to Ms. Buckley. Although there were other issues that were initially in the bill, it’s my understanding that there’s an extensive study going on which will address those issues and are better served in another session. I would urge you to pass this amended version, again with narrow application, but it definitely serves a need that’s there.
I like this bill; I have one concern in paragraph 6 where it talks about, “Any court order issued pursuant to the section must be in writing,” and particularly sub part (b), “be personally served on the person to whom it is directed.” My concerns are what if a person is avoiding service. I understand, in civil actions—
Mr. Horne, are you reading from the proposed amended version of the bill?
That’s correct, but it’s also in the original version, as well, on page 4, at line 33. I don’t know how that is dealt with if you have someone who is really stalking and knows that someone has sought legal remedy, and is trying to avoid the authorities. I see Judge Saitta in the audience; maybe she knows the answer, or possibly Mr. Graham?
I did receive a call from the Las Vegas authorities and they were seeking, possibly, a liberalization of the service process, maybe to even the extent of a certified letter to the person’s address. But it was my feeling that in light of the deadlines we’re looking at, that would be something we might want to explore with Mr. McCleary and others, that if this bill moves, if it does need to be adjusted slightly, we might be able to do that, and yet meet the deadline and bring it back to you.
Mr. Horne, did you have a suggestion that you wanted to see at line 6 (b)?
I was unsure on how the procedure would work. Mr. Graham mentioned certified notices, and the like, that might satisfy that concern if we have a known address of the perpetrator.
Mr. Graham, I think he’s just asking for an explanation of the process.
That’s not available now; certified letters to the last known address are available in some areas. There are other methods where you would leave it with a responsible person at the last known address, and still other authority where, if you left it taped to the door, efforts could be made that that would be sufficient service. I think it would be an inference that the person was served and that they were arrested for violation of that. I guess it might be an affirmative defense if they came in and were able to prove that they did not receive notice; we could do that, but this bill had been around the horn many times, and now here’s another horn, so that’s why we didn’t press that.
I would just need to know that someone would avoid punishment by simply saying that they never received the notice of the restraining order, whether temporary, or otherwise.
By guaranteeing that the person was served as directed and contained a warning of violation of the gross misdemeanor; if you followed the other kind of process, you wouldn’t be able to call this a Category C felony.
I don’t follow.
Well, “Any court order issued pursuant to this section must be in writing and be personally served.”
That’s correct for extended orders, which are Category C. My concern was that if the person is never served, and never personally served, but continues the conduct, which we’re trying to prohibit, and finally we apprehend them, I would still like them to be punished under the statute. I would like us to have something that said you were avoiding service, but we sent it to your known address by certified mail, so that satisfies this requirement.
I have a concern, because I want to make sure that that is actually put in my hand, even if I’m avoiding service.
This is a huge issue that really is of great concern. I don’t know if we have time to fix it in this bill, but in my practice we represent domestic violence victims who can’t afford attorneys. What we often do is get extended orders, which set forth custody, child support, and stay away, and then the batterer avoids service. We get sheriffs, we get pro bono investigators, and they can’t serve, but the batterer is still around, because they continue to stalk the domestic violence victim. We talk the domestic violence commissioners into allowing service by publication, which is what you do under general civil law when you can’t find someone. After successfully getting it done several times, the court then reversed themselves and said, “No, you cannot do it.” The policy implications are, generally, when you have an order that’s punishable by contempt, meaning they’re going to go to jail, you want personal service; that’s a good policy choice, but on the other hand, how do you get at those who just make a mockery of the system?
I don’t know if any other state has come up with a solution; maybe you could serve it by publication or certified mail, but then there’s a presumption that you wouldn’t impose prison if they claim they didn’t get it, but then you could serve them then when you actually have their body in court. If we could come up with something it might be a good thing to stick in a Senate bill, our brilliant legal minds could look at it; we have Nancy Hart here, Judge Saitta, Ms. Lang, and Ms. Combs.
In other words, what we’re saying is that if we’re going to process the bill, that we would amend and do pass.
Nancy Hart has indicated willingness to help take a look at the due diligence effort to serve and, possibly, we can do something in another piece of legislation.
I just need some clarification. It says “physical or mental injury”; I want you to define mental injury for me. Does that mean emotional? Does that mean a brain injury?
I feel that I could, but I know that Ms. Hart does this daily in her work, and if possible, I might ask her to come up to answer that.
Ms. Hart, we’re going to ask you to put your Attorney General hat on.
Nancy Hart, Deputy Attorney General, Office of the Attorney General, State of Nevada:
I want to first state that the Office of the Attorney General has not taken a position on this bill, but I was involved in working with Mr. Graham on some possible amendments because I was aware of the original drafting request and what the aim of the original requestor was. In working on these amendments, as you’ll see from page 2, numeral IV, where the amendment to Section 4 is talked about, the physical and mental injury reference comes from NRS (Nevada Revised Statutes) 432B.020, which both (a) and (b) are from that statute, and they broadly define child abuse and neglect. I cannot say that I know a greater description of mental injury, but I know that it was an effort to limit—the first version of the bill had all crimes committed under NRS Chapters 200 and 201, so that was all crimes against persons, morality, and public decency. It was a very, very large group of crimes and the effort is to limit it to those crimes that are more commonly committed against children in a situation where they might need this kind of protection, so that the intention of using that language is to compare it to what we use in child abuse.
It still seems very broad, and I suppose that’s the intent, to have that discretion for the court so that they can kind of judge what that might mean.
This perpetrator is driving the parents and the kids nuts, and we have to have some relief.
Again, if you look at paragraph 1 in the new version, committing a crime against the child involving (a) or (b), is an attempt to speak broadly about the kinds of acts that would fall under that statute so that we don’t have to say it is attempted lewdness, sexual seduction, or whatever the specific act is. This is not describing the crime; the crime would be separately charged under a criminal statute, but this would allow a proper umbrella for someone to bring action. It is a civil protection order that you would be getting under that definition.
I understand, and that’s why I wanted to pin this down because I wanted it to be a fairly broad umbrella.
Ms. Hart, did you have information that you wish to give on this bill?
No, I was mainly here to be available for questions.
I certainly agree with the concept and intent of the bill; I don’t want anybody driving anybody crazy, especially if it poses some threat or injury to them. I’m just looking at some of the more technical issues on this. For instance, the filing; it sounds like the fees for filing, etcetera, could be placed upon the aggravating individual through an ex parte application, and there’s no notice to them. It states here that the temporary order can be obtained without notice. Are they going to end up setting up fees? I don’t want some kind of abusive process—if these people just don’t get along, I don’t want us to try to create a scheme to protect one, but that can be abused by the others. If you can address some of the fee issues—I also see service of process, an order served in the state, they may not be charged any fee. Is that just through the sheriff or constable’s office? I’m sure they can’t go out to some private legal service company and say, “You have an obligation to serve this without cost to us.” Any comments on those issues?
First, I want to make everyone aware that from paragraph 2(a) onwards, the language there is a direct duplication of what is currently in NRS 200 for orders against stalking and harassment, so the language that is used here is from existing statute, and that was an effort to make a parallel remedy. At the same time, the reason that there are the provisions around fees and service being provided at no charge to the victim is that in the stalking and harassment setting, and also in the domestic violence protection order setting, which is a completely different statute, there is a federal requirement that the victim not be charged a fee for anything related to the issuance of a protection order, whether it’s a filing fee, a service fee, or whatever.
We receive a substantial amount of funding from the federal government under the Violence Against Women Act (VAWA) that would be jeopardized if we did not waive those fees for victims. We could look at whether or not the definition of protection order in the federal statute, which governs this, is broader than just domestic violence protection orders, or stalking and harassment orders; it is any order of protection as defined. What I could do is take a look at that definition and see if this particular kind of order would also fall under the VAWA’s strictures. If it doesn’t, then you would not necessarily have to have those provisions requiring waiver of those fees, but if the Violence Against Women Act’s definition of protection order includes these kinds of orders, I would strongly suggest that you retain those provisions to avoid jeopardizing the federal funding that Nevada does receive.
Regarding the clerk providing information, the petitions and things like that, is that also duplicative?
Yes, all of the language in sub—I realize it needs to be renumbered. If you look at the modified draft, it has two number 2s, so starting at the top of the last page, that is all a duplication. Do you see IV? There is a 1, a 2, and you’ll see another 2—that’s just a numbering error. Starting at the first 2 (a), and on to the end of that section is all from the current Nevada statute, and that’s why, back to Mr. Horne’s question in number 6, the personal service is also required in stalking and harassment orders at this time.
Questions from members of the Committee? Ms. Shelton has indicated a desire to be neutral on the bill. Is there anybody else who wishes to get information in on A.B. 331 in its potentially amended format? Let me close the hearing on A.B. 331. The Chair will entertain a motion to amend and do pass.
ASSEMBLYWOMAN ANGLE MOVED TO AMEND AND DO PASS A.B. 331 WITH LANGUAGE SUGGESTED IN EXHIBIT O UPON BEING REVIEWED BY THE LEGAL DIVISION.
ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Let me indicate before we adjourn what potentially we’re going to be doing tomorrow in our work session. We’re going to try, one more time, to deal with my favorite bill, the adoption agreements under A.B. 28. We’re going to see if we can get some clarity on A.B. 103, which was the Department of Corrections judgment of conviction, they have some potential language that they’re going to give to us. Then Mr. Horne’s A.B. 117, which I think we’re OK with; A.B. 166, structured settlements; and we’re going to try to deal with A.B. 191. We still are holding some hope that we’ll have enough language for A.B. 273 and A.B. 365, and there’s even a possibility that we’ll be able to take care of A.B. 92. I’m not sure all the language is there for those last three.
We are adjourned [at 10:52 a.m.].
Assemblyman Bernie Anderson, Chairman