see updated story here; https://nevadastatepersonnelwatch.wordpress.com/2013/08/16/nevada-department-of-alternative-sentencing-did-not-have-legal-jurisdiction-over-pre-trial-defendants-prior-to-july-2013-if-you-were-under-das-supervision-you-may-have-legal-recourse-to-sue/
In Carson City, Douglas County and Henderson Nevada, the courts have created an internal police force called the Department of Alternative Sentencing (“DAS”). The courts in these jurisdictions bypassed the State parole and probation department and took on jurisdiction of people who have been charged, but not convicted of a crime. These people are known as pre-trial Defendants.
Prior to July 2013 when the laws governing DAS were modified by the Nevada Legislature in Senate Bill 101 and signed into law by Governor Brian Sandoval, DAS had no legal jurisdiction over pre-trial Defendants.
We know the Carson City DAS exploited its power and acted outside jurisdiction when assuming control over hundreds and easily thousands of pre-trial Defendants prior to July 2013. DAS essentially and prematurely put pre-trial Defendants on “probation” which subjected these people, presumed to be innocent, on GPS monitoring, house arrest, subject to search and seizure, drug and/or alcohol testing and even body cavity searches.
DAS is also widely know for illegally changing court orders and conditions of pre-trial Defendants that were never subject to their jurisdiction.
In the minutes of the Nevada Senate Committee on Judiciary from February 27, 2013 show Carson City DAS Chief Rory Plantea stating on the record how he and his DAS have been breaking the law and violating pre-trial Defendants civil rights.
Click here for SB101: SB101 Nevada DAS new law 2013
Minutes from the Nevada Senate Committee on Judiciary February 27, 2013
Click here for PDF file: DAS minutes from 2013 Nevada SB101
SENATE BILL 101: Revises provisions relating to departments of alternative sentencing. (BDR 16-464)
Senator James A. Settelmeyer (Senatorial District No. 17):
I apologize for not getting the language correct to begin with and having to work off the mock-up (Exhibit G). The changes in the mock-up are necessary to incorporate some important and necessary clarifications.
This bill allows for pretrial sentencing to be done by the county or city department of alternative sentencing. When this was discussed in the past, some said the State should be doing it. However, we know the State does not have the funds to implement pretrial sentencing, so the counties do it. This bill enables legislation, adding the word “may,” so there is no fiscal impact to the counties since it is at their own discretion whether to participate.
There are often conditions of bail that the court stipulates, including restraining orders, temporary protection orders (TPO), firearm purchase bans, controlled substance use bans, etc. These departments can do this and provide a valuable service to the courts to review the bail stipulations and make sure the conditions are met. In some counties, these issues are being handled differently. This bill is an attempt to help those counties without a separate program to implement alternative sentencing. We are attempting to codify activities already being implemented in many counties.
This is not the first bill we have seen from Douglas County about this issue.
Yes, we had this bill in the Assembly. At that time, we felt the State should deal with the issue, but since that time, the State has not stepped forward.
Michael Beam (Chief, Department of Alternative Sentencing, Douglas County):
We perform these functions for the courts in Douglas County and Carson City. We serve both the district and justice courts. We ask that this issue be addressed in the statutory provisions of chapter 211A of Nevada Revised Statutes to make it right. We perform pretrial services for persons accused of crimes and awaiting sentencing or trial. The court imposes conditions, and we supervise those individuals to make sure he or she complies with those conditions. We support this bill.
If there are orders from the judge, like drug testing or curfews, you make sure it happens, is that correct?
Yes. A range of conditions can be imposed—drug or alcohol clauses, testing, firearm provisions, TPOs, stay-away orders, etc. It varies case by case.
In sounds like it saves money because the offender is not in jail and can work, depending on the case.
Absolutely, on pretrial with bail conditions.
Rory Planeta (Chief, Department of Alternative Sentencing, Carson City):
We supervise persons who are released on bail or released on their own recognizance without bail. The judge puts conditions on the offender, and we supervise. We work from NRS 178.484, which allows judges to place conditions on persons to protect the citizens and protect themselves. The judge makes the decision on which conditions to impose, and once the individual is placed under our supervision, we make sure he or she maintains those conditions or we bring him or her back to the judge. Those conditions can include drug testing, no weapons, no gang associations, etc. These conditions are necessary to protect the public. We support this bill.
Does this just apply to Douglas County and Carson City?
The provisions could apply to anyone wanting to implement them. Only these two counties are in this situation to my knowledge. Mr. Planeta, do you know of other counties similarly situated?
Yes. Henderson has alternative sentencing; it is called supervised release, which we think is a good term. Part of this bill refers to probationers, but that is not what we call them. They are persons released under the supervision of the Department. We also perform misdemeanor probation, suspended sentences, house arrest, etc. We feel this legislation is a natural progression for us to watch those individuals and keep our citizens safe.
This sounds like a great program. Do we have more supporters?
James J. Jackson (Nevada Judges of Limited Jurisdiction):
I represent the Nevada Judges of Limited Jurisdiction, representing municipal courts, justice courts and the State. We support this bill. Originally, the bill had mandatory language, but it is now permissive, so we are fine with it.
Laurel Stadler (Northern Nevada DUI Task Force):
We support alternative sentencing with DUI offenders. We support this bill.
Richard Glasson (Tahoe Township Justice Court, Douglas County):
This bill brings to light something I and other small court judges use on a daily basis. Alternative sentencing allows a judge to shape behaviors and responsibilities and provide protections before adjudication. While we presume everyone is innocent, there is a period of time between arrests and the disposition of the case that can be a sort of never-never land. This alternative sentencing tool allows us to put some people on a right path and potentially eliminates the need for posttrial supervision or probation because the person has proven in advance that he or she has taken these classes or sobriety conditions seriously.
You can take information from the individual’s cooperation with conditions imposed during pretrial and apply it to sentencing?
Absolutely. There have been times when, because of the abysmal behaviors between arrests and trial, arrestees prove they are not going to be responsive to probation later on. More often than not, we see that these arrestees are just good, responsible people who might have stubbed their toes. They follow the straight and narrow during pretrial, and we do not have a recidivism problem with them when we use this tool.
Do district attorneys have access to the pretrial information when they are making decisions?
The Las Vegas Metropolitan Police Department is neutral on this bill. I also represent the Nevada Sheriffs’ and Chiefs’ Association, and that organization supports this bill.
Mark Jacobs (Chief Marshal, Henderson Alternative Sentencing Division, City of Henderson):
We fully support this bill. It would be a great tool for us to use on a local level. We supervise around 2,000 probationers and 200 individuals released with conditions of release from our courts every day. This bill would allow us to get over some challenging hurdles in supervising those offenders.
Do the individuals who have been charged with the crime have to pay for equipment issued to them, like ankle bracelets?
Yes. It is not a burden on the taxpayers, and that is also true of our probationers. When we have individuals released with conditions, we have concerns about situations like no contact orders, no further arrest clauses, drug and alcohol testing, GPS monitoring, alcohol monitoring, etc. It is a challenge to try and enforce and keep track of these people and those conditions without a specific statute.
Ian Massy (City of Henderson):
We support this bill.
Diane R. Crow (State Public Defender, Office of the State Public Defender):
I represent people in Carson City, Storey County, White Pine County and Eureka County. I do not oppose the spirit of this bill, but I oppose the end result as we have seen it here in Carson City. Conditions of bail that are supervised by alternative sentencing include call-in and color-coded drug testing. This means a person who has been arrested and not convicted of a crime and not lost his or her constitutional rights is required to call in on a daily basis. If their color is called, they must go in during certain hours and take a drug test. If they are not on color-coded testing, they can just be called in any day or an officer can go to their houses and require them to provide a drug test. The officer can search accused people’s homes and vehicles even though they have not been convicted. They are charged with a crime—misdemeanor, gross misdemeanor or felony—but they still have their constitutional rights. My concern is that we are taking the rights away from people who have not been convicted.
This bill, to me, is somewhat akin to a bill introduced last session regarding DNA testing of anyone arrested for a felony. People have constitutional rights. We cannot stomp on either the U.S. Constitution or the Nevada Constitution.
If a person does not agree to the conditions of release terms, can he or she stay in jail or post bail?
That is another issue of constitutionality. Bail has to be reasonable, not coercive. You cannot force someone to agree to drug testing to get out of jail.
If a person refuses to cooperate with the drug testing, does the bail go so high it is impossible for them to pay?
Most of my clients cannot make bail. If the person does not agree to the drug testing conditions, that contributes to the denial of one’s own recognizance release. That is coercion. Who does not want to get out of jail—to go back home, go back to work and support the family? It is coercive to force someone to give up his or her constitutional rights to get out of jail. I am very concerned about the ultimate outcome of this bill.
The government has enormous power, particularly over those who are arrested. From the law enforcement perspective, these issues have been litigated long ago. It is part of the system and has been upheld by state and federal courts around the Country—that the types of things here do not violate the U.S. Constitution. No less than the U.S. Supreme Court has said that upon arrest, your defense rights are not the same as someone who has not been arrested. Therefore, people can be held in custody in some cases and in other cases, they can be released but on certain conditions. We have litigated these issues, have we not?
DAS is unconstitutional
There has been litigation. There is a case out of the Ninth Circuit Court of Appeals: United States v. Scott, 450 F.3d 863 (9th Cir. 2005).
The United States District Court for the District of Nevada granted a motion to suppress for evidence that was obtained on supervision. The Ninth Circuit Court upheld the motion to suppress. The United States appealed it to the Ninth Circuit and the State lost.
The head notes of that case refer to constitutional rights of people not convicted and unconstitutional coercive conditions that cannot be imposed.
What conditions did the Ninth Circuit decide were unconstitutional?
One head note says pretrial release individuals are not probationers. Probationers have a lesser expectation of privacy than the public at large. People released pending trial, by contrast, have suffered no judicial abridgement of their constitutional rights.
My point is that the issue of whether certain pretrial release conditions are unconstitutional has been litigated. It is a fact of our system that pretrial defendants are sometimes held in custody, their passports are removed, they are subjected to drug testing, etc. That is a bigger issue and not really what this bill is about.
I agree that is not specifically what the bill is about, but it is the ultimate conclusion to this bill. The Ninth Circuit is stating that people not convicted still have constitutional rights, and it is invasive to go into their homes and require them to have search and seizure clause.
You are right. Even those who have been convicted have certain constitutional rights. The Eighth Amendment to the U.S. Constitution applies to even those who are incarcerated. What the courts have done over centuries is to decide conditions may be imposed that do not violate the Constitution. I respect the rights of you and your clients to challenge certain types of conditions, and it is up to the system to continually hear those challenges and decide whether they meet constitutional muster. The conditions we impose in this State and in the federal system have been determined constitutional by judges.
In pretrial supervision, if officers find drugs at homes of defendants, can they be prosecuted?
Yes, but they generally are not. My other concern about this bill is that in most of the sections, while it includes new language about pretrial or presentence release, it still labels the person a probationer, which is not accurate.
We can change that in the bill.
Is there anything in this bill that is constitutionally infirm?
We are neutral on this bill because it does not apply to our jurisdiction of Washoe County, but we are in overall support of S.B. 101. Our jail supports the judicial, conditional release of inmates to not only help reduce our inmate population, but also allow those persons who made mistakes and can follow court conditions to be out of custody to live their lives. Without appropriate monitoring, as this bill provides, those conditions most likely would not be met.
We do have a Department of Alternative Sentencing in Washoe County, but I am not sure of its role.
Is it a fact that without pretrial release, we could not keep every arrestee in custody?
That is true. Our jail is already 50 inmates shy of maximum capacity. We are always being creative in how we can let the people out whom we believe will follow the program and not continue to reoffend and create victims. This is a huge step in helping us manage our population statewide.
Yes. It would be ludicrous to let arrestees go without some conditions, without them knowing someone may check up on them at any moment. A portion of arrestees will reoffend or drink without those imposed conditions.
Some of the wordsmithing addressed by the testifier in opposition may be found in the amendment. We had a bill a long time ago addressing the issue of the larger counties in the State having a division between the pretrial and the posttrial alternative sentencing departments, and the smaller counties wanted them together since they were already doing it that way. With this bill we are looking for codification for a practice that is already occurring.
I will close the hearing on S.B. 101 and adjourn the meeting of the Senate Committee on Judiciary at 10:13 a.m.
Senator Tick Segerblom, Chair